Miller v. State
| Decision Date | 22 September 1999 |
| Docket Number | No. 49S00-9807-CR-399.,49S00-9807-CR-399. |
| Citation | 716 N.E.2d 367 |
| Parties | Sean MILLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Belle T. Choate, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Janet Brown Mallett, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.
Sean Miller was convicted of rape and three counts of criminal deviate conduct, found to be a habitual offender, and sentenced to an aggregate term of 120 years imprisonment. He raises the following issues on appeal:
(1) Did the trial court properly exclude testimony concerning Miller's claimed prior sexual involvement with the victim?
(2) Did the trial court correctly respond to the jury's request to review testimony?
(3) Did the trial court state sufficient reasons to support the imposition of consecutive, rather than concurrent, sentences?
We affirm the judgment of the trial court.
Factual and Procedural Background
Miller testified at trial and admitted that he had both intercourse and oral sex with the alleged victim, A.W., on the night of February 10, 1997, but claimed that the encounter was consensual. According to Miller, he and the alleged victim, A.W., had been engaged in a sexual relationship for over two years.
A.W., on the other hand, testified that she and Miller had been friends for some time but had had no sexual relationship before the evening in question. Miller came to her apartment and the two watched a movie. At approximately 2:00 a.m., another man named "Eric" arrived at the apartment. Shortly after Eric arrived, Miller went to the kitchen under the pretense of obtaining a drink and returned with a knife. Miller began struggling with A.W. on the floor. Then Eric and Miller took A.W. into her daughter's room where both men sexually assaulted A.W. at knife point, after threatening to kill her. After the men left the apartment A.W. called the police.
Eric was never found or charged. Miller was arrested and charged with rape and four counts of criminal deviate conduct, and was also charged as a habitual offender. He was acquitted of one count of criminal deviate conduct, but convicted of the remaining counts and the habitual offender enhancement.
Miller claims that evidence of his past sexual relationship with A.W. was improperly excluded under Indiana Evidence Rule 412, Indiana's Rape Shield Rule. Miller tendered testimony at a pretrial hearing from a witness claiming to have overheard conversations between Miller and A.W. concerning their prior sexual relations. A pretrial order ruled this testimony inadmissible. At trial, Miller made no offer to prove and presented no challenge to this pretrial ruling. We agree with Miller that the trial court's pretrial ruling was erroneous. Rule 412(a)(1) contains an express exception for "evidence of the victim's... past sexual conduct with the defendant."
A pre-trial hearing or a motion in limine is appropriate to determine the admissibility of evidence outside of the jury's hearing in order to avoid prejudice. See Hadley v. State, 496 N.E.2d 67, 71 (Ind. 1986)
. However, in order to preserve an error for appellate review, a party must do more than challenge the ruling on a motion in limine. See Tyra v. State, 506 N.E.2d 1100, 1102-03 (Ind.1987); Johnson v. State, 472 N.E.2d 892, 908 (Ind.1985). "[T]o raise the question of error, the evidence must be offered at trial to give the trial court an opportunity to rule on its admissibility at that time." Tyra, 506 N.E.2d at 1103 (citations omitted). This requirement has been explicitly held applicable to exclusions under the Rape Shield doctrines, even though Rule 412 and the Rape Shield Law include specific provisions for ruling on the admissibility of the proposed evidence after pretrial notice and hearing. See Shaw v. State, 489 N.E.2d 952, 954 (Ind.1986); Tyson v. State, 619 N.E.2d 276, 289 & n. 13 (Ind.Ct.App. 1993).1 Because Miller failed at trial to offer the evidence excluded at the pre-trial hearing, he has not preserved the error for appellate review.
Miller alleges that the trial court erred in its response to a jury request to hear Miller's testimony again. The jury sent a note requesting to "review Sean Miller's testimony on direct testimony and the transcript of the taped statements of Sean Miller's March, 1997 statement to Detective Frazier." After discussing the note with both parties on the record, the trial court responded with a note stating:
[t]he law does not permit me to allow you to review testimony unless you have a disagreement as to the testimony. If you simply cannot recall the testimony, then you are required to decide the case based on your memory of the witnesses' testimony. If you do have a disagreement, please indicate that in writing on this paper and give it back to Candi [the bailiff] now.
The State and defense counsel both agreed to the trial court's response before it was sent to the jury. The jury replied,
Generally, failure to preserve an issue at trial results in waiver of the issue on appeal. Because the defense concurred in the trial court's handling of this matter, Miller argues that the trial court committed fundamental error "in advising the Jury as to the question of `recall.'" This Court may address issues that were not preserved if they constitute fundamental error. See Ben-Yisrayl v. State, 690 N.E.2d 1141, 1150 (Ind.1997)
. To constitute fundamental error, the "defendant must show that the error was a substantial and blatant violation of basic principles which rendered the result of the trial unfair." Roach v. State, 695 N.E.2d 934, 942 (Ind.1998).
Miller cites no authority for the proposition that the trial court's handling of this issue was error. In any case, the trial court's response to the jury's note certainly does not rise to the level of rendering the entire trial unfair. In Reynolds v. State, 460 N.E.2d 506, 508-09 (Ind. 1984), this Court was presented with a similar situation. In that case, the trial court instructed the jury after deliberations had begun, without informing the defense counsel or the defendant and without calling the jury into open court. Although the trial court's actions in Reynolds were inappropriate, this Court held that the issue was waived because it was not preserved at trial and also did not constitute fundamental error. Id. Those facts are certainly more egregious than the current case where the trial court wrote a note to the jury with the State, defense counsel, and the defendant present.
Miller further contends that ...
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