People v. Miller

Decision Date06 June 2005
Docket NumberNo. 04SC414.,04SC414.
Citation113 P.3d 743
PartiesThe PEOPLE of the State of Colorado, Petitioner. v. Michael MILLER, Respondent.
CourtColorado Supreme Court

Rehearing Denied June 27, 2005.1

John W. Suthers, Attorney General, John J. Fuerst III, Assistant Attorney General, Denver, for Petitioner.

David S. Kaplan, State Public Defender, Elizabeth Griffin, Deputy Public Defender, Denver, for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

A jury convicted the defendant, Michael Miller, of, among other things, first-degree murder (after deliberation) and first-degree felony murder, rejecting Miller's affirmative defense of involuntary intoxication, and rejecting evidence that Miller's voluntary intoxication had negated the requisite mental state of first-degree murder (after deliberation). Under the doctrine of merger, the felony murder conviction and the first-degree murder (after deliberation) conviction merged, giving rise to only one sentence. Upon Miller's appeal, the court of appeals overturned the first-degree murder (after deliberation) conviction, on the basis of instructional error by the trial court. People v. Miller, No. 01CA1026, slip op. at 2, 2004 WL 916226 (Colo.App.2004) (not selected for publication). The court of appeals found plain error in the trial court's instruction concerning the impact of the defendant's intoxication on his culpable mental state. It held that the trial court failed to instruct the jury properly that "after deliberation" is a part of the culpable mental state of first-degree murder that can be negated by voluntary intoxication.

On remand, as requested by the People, the court of appeals permitted the People a choice between retrial of the defendant for first-degree murder or entry of a conviction on the lesser included offense of second-degree murder. The People petitioned this court for review of the court of appeals' decision overturning the first-degree murder conviction, and in addition, requested that the felony murder conviction, rather than the conviction for second-degree murder be reinstated.2

We granted certiorari3 and now reverse. First, we resolve the conflict among our cases concerning the standard of review applicable to allegations of constitutional error in the absence of a contemporaneous objection. We hold that where the defendant fails to object at trial, the plain error standard of review applies. We thereby reserve harmless beyond a reasonable doubt review for those cases in which the defendant preserved his claim for review.

Applying a plain error standard of review in this case, we find no plain error. Plain error occurs only when, after review of the entire record, the appellate court concludes that the error undermined the fundamental fairness of the trial.

Here, in reviewing the entire record, we cannot so conclude. First, the question of voluntary intoxication was not actually contested at trial, in that the defendant did not raise it as his defense. More importantly, we find overwhelming evidence in the record to support the first-degree murder conviction. We therefore reverse the court of appeals' decision overturning the defendant's first-degree murder (after deliberation) conviction.

Finally, because we overrule the court of appeals' reversal of the first-degree murder (after deliberation) conviction, we need not reach the second issue presented. Thus, we decline to determine what the law requires when a first-degree murder conviction and felony murder conviction have merged, and the first-degree murder conviction is reversed.

We reverse and remand for reinstatement of the defendant's first-degree murder (after deliberation) conviction.


On March 8, 2000, police officers found Loyal Burner's lacerated body in his Federal Heights, Colorado mobile home. Michael Miller, a close friend, former roommate, and employee of Burner, confessed to killing Burner and subsequently stealing several items from the victim, including his vehicle. The Adams County District Attorney charged the defendant in an information with first-degree murder (after deliberation),4 first-degree felony murder,5 aggravated robbery, three counts of first-degree aggravated motor vehicle theft, vehicular eluding, and theft. Trial was to a jury between January and February of 2001.

The defendant did not testify but, admitting responsibility for the death, he defended on grounds of self-defense to a sexual assault by the victim; involuntary intoxication caused by the victim; or alternatively, actions taken in a rage. In addition, sufficient evidence of self-induced intoxication emerged at trial, entitling him to a diminished capacity instruction, which is the subject of this petition. Evidence of Miller's defense was introduced through his taped confession and through testimony of witnesses to whom the defendant had given varying versions of the incident. The defendant also proffered expert opinion in support of his defense of involuntary intoxication.

That evidence indicated that Miller had appeared at the victim's home on the date of the murder after consuming a small amount of methamphetamines. The victim appeared at the door naked and carrying a gun.6 Upon entering the mobile home, Miller said the victim sexually propositioned him, including a request that Miller perform oral sex on the victim. Miller added that the victim pointed the gun at him at that moment though he understood that the act was in jest. Miller said at some point the victim had also demonstrated muffling the sound of a gun shot. The victim returned the weapon to his gun cabinet.

The victim then prepared two drinks for Miller, consisting of vodka and what appeared to be V8. Upon consuming the liquids, Miller said he felt dizzy or "delirious" and could not maintain his composure and balance. He suspected the victim had "slipped him a mickey."7 Some time later, Miller said he located a hatchet and concealed it from the victim, anticipating that he would later have to use it to defend himself against an impending sexual assault attempt by the victim. He exited the mobile home to "catch some air" or otherwise regain his composure. He re-entered and fell asleep, or blacked out for a period of one to two hours. The defendant said he awoke in the victim's bedroom but could not recall how he ended up there. The victim was sexually assaulting him at that moment. The victim's gun was on the dresser, then the victim was either holding it, or the gun was nearby the victim. Miller said he "flung" the gun away from the victim and struck him in the neck using his elbow. He then grabbed the hatchet from beneath the bed and levied several blows to the victim's head while the victim was "scuffling" with Miller. Miller hid behind the door and waited for the victim to bleed to death. He then used a flashlight to locate several of the victim's belongings, including the hatchet, several hundred dollars in cash, titles, a VCR, tools, walkie talkies, and a gun collection, all of which he placed in a box and carried to the victim's truck. He drove away in the victim's truck.

Autopsy results revealed that the victim was struck four times in the same location of his head and that he died in the early morning hours of March 5, 2000. The forensic pathologist testified that the location of the victim's wounds was consistent with his being in a stationary position when struck and therefore not "scuffling."8 Also, although the defendant told police that the victim had made him perform oral sex on the victim while he, Miller, was unconscious, DNA tests did not discover the defendant's saliva DNA on the victim. Lastly, although Miller claimed to have struck the victim in the neck with his elbow while they were scuffling, autopsy results revealed no signs of trauma to the victim's neck.

Federal Heights police first contacted Miller on March 10, two days after discovering Burner's body. Miller informed them that he had last seen the victim in the early evening of March 4, stating the victim had dropped him off after they had gone four-wheeling. Miller offered that he was with a friend, Nathasha Zimmerman, near the time of the murder. Zimmerman testified that, shortly after he spoke with police, Miller contacted her to serve as false alibi for him and asked her to dispose of certain items he took from the victim's home. Furthermore, several witnesses revealed different versions of the circumstances surrounding the murder as disclosed by Miller. Those versions did not include sexual assault, or suspicions of a "mickey" in his drink, or drunkenness. Lastly, the jury also heard testimony from Miller's girlfriend indicating that he "waited for the right moment" to strike the victim with the hatchet.

At the close of trial, the court gave the jury several instructions relating to the culpable mental state of first-degree murder (after deliberation). The court instructed the jury on the defendant's affirmative defense of involuntary intoxication, and that instruction is not at issue here. Concerning the impact of voluntary intoxication on the culpable mental state, the court directed the jury to consider "evidence of self-induced intoxication in determining" whether it "negates the existence of the culpable mental state of specific intent." The court also informed the jury that they must find the defendant not guilty if they found that he "was intoxicated to such a degree that he did not form the specific intent, which is a required element of Murder in the First-degree After Deliberation." In separate instructions, the court informed the jury that "after deliberation" is an element of first-degree murder and that the defendant raised an affirmative defense (of involuntary intoxication). The court also gave the jury a definition of "after deliberation" and informed the jury that "after deliberation" and "intent" form part of the culpable mental state of first-degree murder. The court did not give the...

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