Miller v. State

Decision Date06 September 2013
Docket NumberNo. D–2008–1206.,D–2008–1206.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma


An Appeal from the District Court of Tulsa County; the Honorable Dana L. Kuehn, District Judge.

Pete Silva, Chief Public Defender, Shena Burgess, Chief Deputy Public Defender, Tulsa, OK, attorneys for defendant at trial.

Tim Harris, District Attorney, William Musseman, Assistant District Attorney, Tulsa, OK, attorneys for the State at trial.

Lanita Henricksen, attorney at law, Henricksen & Henricksen Lawyer, attorney for appellant on appeal.

Victor Cornell Miller, Oklahoma State Penitentiary, McALester, OK, defendant pro se.

E. Scott Pruitt, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.


SMITH, Vice Presiding Judge:

¶ 1 On September 22, 1999, Victor Cornell Miller, Appellant, was charged, along with co-defendant John Fitzgerald Hanson, with two counts of First–Degree Malice Murder, in violation of 21 O.S.Supp.1998, § 701.7(A), or alternatively, First–Degree Felony Murder, in violation of 21 O.S.Supp.1998, § 701.7(B) (Counts I & II), in the District Court of Tulsa County, Case No. CF–1999–4583. Count I was for the murder of Mary Agnes Bowles. Count II was for the murder of Jerald Thurman. The co-defendants, who were charged with acting “in concert” on both counts, were tried separately.

¶ 2 John Hanson was originally tried by a jury in May of 2001. He was found guilty of First–Degree Malice Murder on Count I and First–Degree Felony Murder on Count II. The jury recommended a sentence of death on Count I and a sentence of life imprisonment without the possibility of parole on Count II, and Hanson was sentenced accordingly. On appeal this Court affirmed both murder convictions and Hanson's sentence of life without the possibility of parole on Count II, but reversed his death sentence on Count I and remanded the case for resentencing on this count. See Hanson v. State, 2003 OK CR 12, 72 P.3d 40. Hanson's resentencing jury trial was held in January of 2006, and he was again sentenced to death for the Count I murder of Mary Bowles. We affirmed this sentence in Hanson v. State, 2009 OK CR 13, 206 P.3d 1020.

¶ 3 Victor Miller was originally tried by a jury in April of 2002. He was found guilty of First–Degree Malice Murder on both counts (and also of First–Degree Felony Murder on both counts). The jury recommended that he be sentenced to imprisonment for life without the possibility of parole on Count I and that he be sentenced to death on Count II; and Miller was sentenced accordingly.1 It should be noted that even though Miller's jury found that all four of the aggravating circumstances alleged in the case applied to the murder of Bowles, Miller's original jury chose not to sentence him to death for Bowles' murder, thereby “acquitting” him of the death penalty on Count I.2 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 in November of 2008, before the Honorable Dana L. Kuehn, District Judge. No new Bill of Particulars was filed. Instead, on August 8, 2008, the State filed a “Notice of Intent to Reurge Previously filed Motions and Notices,” asserting that it was incorporating all relevant motions and notices filed in connection with Miller's original charges and trial, and noting that the Bill of Particulars was one of the filings being incorporated.4 Consequently, on retrial, the State again sought to obtain two death sentences against Miller, one on each of the murder counts charged.5

¶ 5 The record contains no argument or legal authority from the State regarding how or why it was authorized to re-seek the death penalty against Miller for the Count I murder of Mary Bowles—even though he had been “acquitted” of the death penalty on this count at his first trial. Remarkably, the record is likewise silent regarding any objection from defense counsel to the State's action in this regard; and the record contains no evidence of any discussion before the trial court, comment by the trial court, or decision by the trial court regarding the fact that Miller had already been acquitted of the death penalty on Count I. The issue simply was not addressed.

¶ 6 At his second trial, Miller was again convicted by a jury of First–Degree Malice Murder on both counts (and also of First–Degree Felony Murder on both counts). During the sentencing phase of this trial, Miller's jury found that the following four aggravating circumstances applied to both counts: (1) Miller was “previously convicted of a felony involving the use or threat of violence”; (2) Miller “knowingly created a great risk of death to more than one person”; (3) “the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) there is a “probability” that Miller will “commit criminal acts of violence that would constitute a continuing threat to society.” 6 The jury recommended a sentence of death on both counts, and the Honorable Dana L. Kuehn sentenced Miller to death on both counts, in accordance with this recommendation. This Court finds that Miller has perfected this direct appeal of his convictions and his sentences.7


¶ 7 The following summary of facts is based entirely on the evidence presented at Victor Miller's 2008 retrial. Only evidence actually presented at this trial, along with reasonable inferences from this evidence, are included herein. It should be noted that Miller's 2008 jury was not presented with some evidence that was an important part of the previous trials regarding the crimes at issue—in particular, the testimony of Rashad Barnes—and also that some evidence was presented at Miller's 2008 retrial that had not been presented during the earlier trials (or at Hanson's re-sentencing).

¶ 8 On August 31, 1999, Mary Bowles, who was 77 years old, worked her regular volunteer shift at St. Francis Hospital in Tulsa. She clocked out at 3:51 p.m. Lucille Neville, a pharmacy technician at the hospital and longtime friend of Bowles, testified that Bowles' car—a 1993 tannish/gold-colored Buick LeSabre—was in front of her car that afternoon, going north on Yale Avenue. Bowles honked and waved at Neville while they both waited at a light, just before turning left onto the Skelly Bypass merge. The women parted ways when Bowles stayed on the service road, apparently going home. Bowles was scheduled to be back at the hospital at 9:30 a.m. the next morning. She never returned.

¶ 9 That same afternoon James Lavendusky and his father, Ken Lavendusky, were winterizing James' boat at his Tulsa home at 6802 North Mingo Road. The Lavendusky home and pecan farm were across the road from a dirt pit owned by Jerald Thurman. James testified that around 5:45–6:00 p.m., he heard three or four gunshots coming from the area toward the dirt pit. After a few seconds, he heard three or four more shots. When James looked up, he noticed Thurman's dump truck parked between Mingo Road and the entrance gate into the dirt pit area. Shortly thereafter, Ken went to talk to Thurman about getting some gravel.

¶ 10 James testified that he continued working on his boat until his dad started yelling and waving for him to come over. When James arrived he found Thurman's dump truck still running. Ken told James that Thurman had been shot and handed James a cell phone to talk to a 911 operator. James then saw Thurman on his back on the ground near the gate. James testified that before going over to the dirt pit, he noticed a car leaving the area, headed south on Mingo. James described the car as a silver or grayish-colored four-door sedan. He noticed a driver and something “dark” in the back seat.

¶ 11 Jim Moseby, Thurman's nephew, was driving a dump truck for Thurman that day. Moseby testified that he received a call from his uncle around 5:50 p.m. Thurman told Moseby that there was a car in the dirt pit that had been lingering there, that he was concerned about it, and that if the car was still there when Thurman was ready to leave, he was going to lock the gate on his way out.8

¶ 12 When Moseby arrived at the dirt pit a short time later, he was met by the Lavenduskys, who told him that Thurman had been shot. Moseby, who was also a certified EMT (emergency medical technician), testified that he found his uncle lying outside the gate, with his head at the base of the tree where the gate was attached. Thurman was breathing with difficulty, but was unconscious and bleeding from the right side of his head, as well as from his chest and hand. Thurman's cell phone was on the ground next to him. Moseby noted that the phone had a hole in part of it, apparently from a bullet going through it.

¶ 13 Jerald Thurman, who was 44 years old, never recovered consciousness and died from his injuries on September 14, 1999, at Hillcrest Hospital. The medical examiner determined that he had four gunshot wounds: one through the back part of his head (going from right to left and passing through his brain), one entering his back at the base of his neck, one that entered his upper left arm, and one through his right hand.9 The medical examiner concluded that the cause of Thurmans death was the gunshot wound to his head.

¶ 14 Sundeep Patel testified that on August 31, 1999, he was a student and worked as a desk clerk at the Oasis Motel, which was owned by his parents. 10 Patel testified that he was watching Home Improvement that evening, which aired between 6:00 and 6:30 p.m., when John Hanson came into the motel, asked about the price of a room, and then walked back out. Hanson returned a short time later and stated that his car wasn't starting, so he was going to need a room. Patel testified that Hanson then rented a room,...

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