State v. Miller

Decision Date17 May 2022
Docket NumberDA 19-0547
Citation2022 MT 92
PartiesSTATE OF MONTANA, Plaintiff and Appellee, v. BEAU HERMAN MILLER, Defendant and Appellant.
CourtMontana Supreme Court

Submitted on Briefs: November 3, 2021

District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDC 18-451 Honorable John A Kutzman, Presiding Judge

For Appellant: Jennifer Dwyer, Avignone, Banick & Williams PLLC, Bozeman, Montana.

For Appellee: Austin Knudsen, Montana Attorney General, Attorney General, Helena, Montana.

C. Mark Fowler, Attorney at Law, Tumwater, Washington.

Joshua A. Racki, Cascade County Attorney, Jennifer Quick, Deputy County Attorney, Great Falls, Montana.


Dirk Sandefur Justice.

¶1 Beau Herman Miller (Miller) appeals his July 2019 judgment of conviction and sentence on the offense of Assault with a Weapon, a felony. We address the following restated issues on appeal:

1.Whether the District Court erroneously allowed the State to peremptorily strike the only non-white member of the jury venire based on her statements that she could not be fair due to her personal experiences with racial discrimination?
2. Whether various unpreserved assertions of error regarding the prosecutor's closing argument and rebuttal comments constitute plain error?
3.Whether Miller received ineffective assistance of counsel based on withdrawal of his initial Batson challenge and failure to object to various prosecutor statements during closing and rebuttal argument?

We affirm.


¶2 On the late afternoon of June 26, 2018, a man (Gene Meek) in a business parking lot heard a commotion and looked up to see a gold car chasing a white pickup truck at a high rate of speed northbound on River Drive along Broadwater Bay in the City of Great Falls. The man saw a red-haired woman driving the gold car with "a black man," later identified as Miller, "hanging out of the sunroof" and "beating on the top of the car" with what appeared to be handgun, [1] yelling "pull over Motherfucker." Another man in the same parking lot (Doug Rogers) saw essentially the same thing. The first man called 911 and reported the incident and, while still on the phone, then saw both vehicles race by in "the other direction."

¶3 An adult male was driving the white pickup with his fiancé riding in the passenger seat. The female passenger later testified that they were driving around Great Falls when they noticed Miller following them in the gold car. She said that they both recognized the passenger as Miller and saw him brandishing a gun inside the car. She recalled seeing Miller at some point stand up through the sunroof and "point[] the gun at us" toward "the back of our vehicle." The woman testified that she immediately called 911 and remained on the phone with the operator as her fiancé was driving to the police station with Miller's car chasing behind. She testified that "when we got down to Broadwater" Bay, she "looked over" and saw the gold car pull up in parallel "right next to the [driver's side of] the truck," with Miller pointing the gun at her fiancé's head. She said her fiancé immediately "hit the brakes," "spun the vehicle around," and sped north in the other direction to get away. Miller's car turned around as well. The chase continued north, and then east up 10th Avenue South in Great Falls until the couple saw a police car and began following it, the gold car still chasing behind. Based on the multiple 911 calls, police cars eventually converged on the vehicles in the chase. Police sequentially stopped each and detained the occupants of both at gunpoint. Police subsequently obtained a warrant to search Miller's car and found inside a .45 caliber handgun, a small quantity of marijuana, and a marijuana grinder.

¶4 At trial, Miller testified that the chase started after he and his wife were stopped at a traffic light on 10th Avenue South and Fox Farm Road and saw the white pickup swerve into their lane, nearly striking their car. He said that he immediately recognized the pickup driver as an acquaintance who had previously borrowed money from him, and who had threatened him and his wife when confronted about paying it back. He testified that he heard the man "cussing" at them as the pickup "swerve[d] toward [their] car," and that it would have hit them if his wife had not immediately swerved away. He testified that the white truck immediately sped away and that he told his wife to follow and the chase was on. At trial, Miller acknowledged that he directed his wife to chase the white pickup, but asserted that he did so only in defense of himself and his wife based on the incident at the stoplight and prior threats made by the pickup driver. Consistent with his initial statement to police at the scene, Miller testified that he wanted to catch up and confront the pickup driver so that they could settle their differences in the street "like men." He acknowledged having a gun in his hand at some point during the chase, but denied ever holding it outside the car, or pointing or otherwise brandishing it toward anyone. The State ultimately charged Miller with two counts of felony assault with a weapon, misdemeanor possession of marijuana, and misdemeanor possession of drug paraphernalia, and the matter proceeded to trial in late April 2019.

¶5 During jury voir dire, the bailiff advised the judge and parties after a break that a prospective juror (Juror) wished to speak with the judge outside of the presence of the venire. In chambers, with both parties present, the Juror stated that, based on a multitude of personal experiences with racial discrimination in the Great Falls community, she had concerns about being a juror on a case involving a black defendant. She explained that she was of Dutch ancestry, non-white, and frequently mistaken for being a Mexican or Native American. She stated that, due to her dark skin color, police had frequently stopped her at night "for nothing" when she was on the way home from work. She said that storeowners have often treated her with suspicion and that, on one occasion, somebody shoved her because she was not white. She thus stated that, "I think I would be not fair . . . because I was the victim of a lot of discrimination in this town." (Emphasis added.) The court then inquired:

[Court]: So you've experienced discrimination firsthand?
[Juror]: Yeah, a lot.
[Court]: . . . I'm sorry that that happened to you in this community. Do you think that having experienced that firsthand makes you lean toward [the accused] here, and . . . [may cause you to] feel sympathy for him?
[Juror]: It might. . . . I don't know what happened in this case, what he did or did not do, but it might be, I be not fair, because I know what's not being white in a place [where] there is a lot of white people.
[Court]: Can you see how from his perspective . . . having somebody on the jury . . . who lives in the community who isn't white and has endured some of this, would be helpful?
[Juror]: No. I don't see, because I got really emotional and because this happened many times. It was not one time or two.
. . .
[Court]: [The accused] is presumed to be innocent, right?
[Juror]: Yeah.
[Court]: You understand that, . . . if the State does not convince you that he did it, then you vote to find him not guilty, right?
[Juror]: Yeah, if I see he's innocent, yeah.
[Court]: Do you think you can do that?
[Juror]: I don't"I don't feel it's possible. That's why I try to talk with [the prosecutor] at the beginning, but because I didn't have the room, yeah, because she ask different questions. And then [defense counsel], there, also, different questions, so I did not have the room to tell anything about this, about how I feel. Because I felt after I saw him, yeah, I didn't know also he wasn't a white guy. I just saw when I was already in the courtroom. And I feel that that . . . it's a concern because I would not really"it might be that I be not fair, because of my personal experience.
[Court]: Well, not fair in what way?
[Juror]: . . . [B]ecause I know how it is to be not white, yeah?
[Court]: And does the experience that you've had being nonwhite in this community cause you to favor the State or the Defendant?
[Juror]: At the moment, I don't know, because I still"I don't know what is going on, yeah?
[Court]: [Does the State] have any questions for her?
[State]: I don't have any questions.

(Emphasis added.) Based on the Juror's stated inability to be fair and impartial, the State moved to strike her from the venire for cause. Defense counsel objected on the stated ground that "race and racism [are] squarely in the bulls-eye here." After further discussion with counsel, the court denied the motion on the stated ground that the Juror's discomfort with being on the jury did not afford her "the luxury of" being sent "home."

¶6 Later, before passing the remaining venire for cause, defense counsel asked the panel whether there was "anyone here who feels that he or she can't sit on this case, that this is just not the case for you for whatever reason?" The same prospective juror raised her hand, but said "no" when counsel asked if she "want[ed] to talk with the judge again about that." Defense counsel then passed the remaining venire for cause and, off the record, the parties exercised their respective peremptory challenges. After the State used its final peremptory challenge to strike the subject Juror, the District Court reconvened the parties outside the presence of the jury, noted the State's use of its final peremptory challenge, and asked, "so . . . does this create a . . . problem . . . [under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986)] and what do we do about it?"

¶7 The court first turned to...

To continue reading

Request your trial
2 cases
  • State v. Wellknown
    • United States
    • Montana Supreme Court
    • May 24, 2022
    ...lies within the trial court's fact-finding discretion, and we will not disturb it absent "exceptional circumstances." See State v. Miller, 2022 MT 92, ¶ 16, __ Mont. __, __ P.3d __ (quoting Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1208 (2008); Ford, ¶ 18). "A credible race ne......
  • State v. Bigleggins
    • United States
    • Montana Supreme Court
    • March 28, 2023
    ... ... Miller, 2022 MT ... 92, ¶ 29, 408 Mont. 316, 510 P.3d 17; Mont. Const. art ... II, § 25 ("No person shall be compelled to testify ... against himself in a criminal proceeding.") ...          ¶13 ... When read alone, the prosecutor's comment that if ... Bigleggins "wanted to come in and ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT