State v. Miller

• Decision Date: 14 June 1996
• Docket Number: No. 23155,23155
• Citation: 197 W.Va. 588,476 S.E.2d 535
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Angela Dawn MILLER, Defendant Below, Appellant.

Page 535

476 S.E.2d 535

197 W.Va. 588

STATE of West Virginia, Plaintiff Below, Appellee, v. Angela Dawn MILLER, Defendant Below, Appellant.

No. 23155.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1996.

Decided June 14, 1996.

[197 W.Va. 592] Syllabus by the Court

1. Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires that a defendant must raise any objection to an indictment prior to trial. Although a challenge to a defective indictment is never

[197 W.Va. 593] waived, this Court literally will construe an indictment in favor of validity where a defendant fails timely to challenge its sufficiency. Without objection, the indictment should be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted

2. Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations.

3. To succeed on an abuse of discretion claim regarding the judicial management of a criminal trial, a defendant must point to a specific rule or statutory violation and then must show that the measures or procedures taken by the trial judge either actually or inherently were prejudicial.

4. The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.

5. Actual bias can be shown either by a juror's own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.

6. The challenging party bears the burden of persuading the trial court that the juror is partial and subject to being excused for caused. An appellate court only should interfere with a trial court's discretionary ruling on a juror's qualification to serve because of bias only when it is left with a clear and definite impression that a prospective juror would be unable faithfully and impartially to apply the law.

7. In instructing a jury as to the inference of malice, a trial court must prohibit the jury from finding any inference of malice from the use of a weapon until the jury is satisfied that the defendant did in fact use a deadly weapon. If the jury believes, however, there was legal justification, excuse, or provocation, the inference of malice does not arise and malice must be established beyond a reasonable doubt independently without the aid of the inference. If requested by a defendant, the trial court must instruct the jury that the defendant has no obligation to offer evidence on the subject and the jury may not draw any inference from the defendant's silence.

Dawn E. Warfield, Deputy Attorney General, Charleston, for Appellee.

James B. Billings, Oak Hill, for Appellant.

CLECKLEY, Justice:

The defendant below and appellant herein, Angela Dawn Miller, appeals a December 14, 1994, order of the Circuit Court of Wyoming County that denied her motion for a new trial. The defendant was convicted by a jury of first degree murder and was sentenced to life without a recommendation of mercy by order entered on October 27, 1994. The defendant raises a number of alleged errors on appeal, including: (1) the indictment misinformed the jury as to the elements of first degree murder; (2) the jury was not properly qualified to hear the evidence; (3) the jury was improperly instructed; (4) the prosecuting attorney made improper and prejudicial statements; (5) the grand jury was intentionally mislead by the State; and (6) ineffective assistance of counsel below constitutes plain error. ¹ For the following reasons, we affirm the defendant's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

We supply a thumbnail sketch of the relevant facts. During the early hours of October 9, 1993, the defendant shot and killed Jerry White outside a bar known as Tucky's located in Wyoming County. The defendant does not deny shooting the victim; however During the afternoon of October 8, 1993, the defendant joined several others at her parent's house to assemble a water bed. One of the individuals helping assemble the bed was Tina Reed, the defendant's roommate and alleged homosexual partner. Also helping with the assembly of the bed was the defendant's father, Billy Miller, and a friend, Danny Little. While working on the bed, the group began drinking beer.

[197 W.Va. 594] she states she cannot remember the shooting because at the time of the incident she was intoxicated and had taken several Valiums. At trial, the defendant claimed the facts did not warrant a conviction of first degree murder because the State failed to demonstrate the requisite mental state of premeditation. In the alternative, the defendant offered evidence that she acted in defense of herself and/or others when she shot the victim. There were numerous witnesses who testified at trial as to the events that transpired. The accounts given by these witness and by the defendant, who also testified at trial, often conflicted with one another. The following is a summary of the relevant facts.

Later that evening, the group went to the house of the defendant's sister and brother-in-law, Tina and Timothy Church. Before leaving her parent's house, however, the defendant took a .38 revolver and stuck it in her pants. Mr. Miller also had a 9 millimeter weapon with him at the Church's house. Mrs. Church claimed the defendant was drunk when she arrived at the Church's house. The group continued to consume beer at that residence, and both the defendant and Ms. Reed testified the two of them took a few Valiums throughout the course of the evening. ²

While at the Church house, Mr. Miller mentioned a couple of times that he would like to go to Tucky's bar. Believing the group was too drunk to drive, Mr. Church drove the defendant, Ms. Reed, Mr. Miller, and Mr. Little to Tucky's at approximately 1:00 a.m. on October 9, 1993. Mr. Church stated that once they arrived at the bar the defendant said she did not want to go into the bar because "there was too many people that didn't like her that hung around Tucky's and that's the reason she didn't want to go." According to Mr. Church, Mr. Miller assured the defendant nothing would happen if she stayed with him. The group then proceeded into the bar and sat down.

Once inside the bar, Ms. Reed apparently noticed the victim whom she had dated for almost three months approximately two and one-half to three years ago. The events described by the various witnesses from this point forward often conflict, and many of the witnesses admit they were drinking. The owner of the bar, Juanita "Tucky" Hughes, testified she saw Ms. Reed and the defendant approach the victim and Ms. Reed tell the victim that the defendant and she were married and he should leave her " 'the hell alone.' " According to Ms. Hughes, the victim turned in response and told Ms. Reed that he was not bothering her and she should " 'get out of [his] face.' " Ms. Hughes also told the police the victim called Ms. Reed a bitch. Ms. Hughes said she saw the defendant had a gun and, after the defendant went to the front door, Ms. Hughes forced her outside. The victim then departed from the bar and told Ms. Hughes he was leaving because he did not want any trouble. She did not see any altercations between the victim and anyone until she heard the gunshots and saw the victim fall to the ground.

Another version of the events came from Benny Alan Mills. Mr. Mills, who is a second or third cousin to the victim, said the defendant and Mr. Miller talked with the victim for about thirty or forty minutes in what appeared to be a friendly conversation and then the victim told Mr. Mills he was "going outside [to] smoke a joint with them[.]" About thirty seconds to a minute later, Mr. Mills stated he "heard a ruckus in the back of bar," so he went to see what was happening. When Mr. Mills got there, the victim told him that Mr. Miller "sucker punched [him] in the side of the head." Mr Several witnesses had other variations of the events. Some witnesses said the victim and Mr. Miller had an argument inside the bar. One witness said Mr. Miller attempted to start a fight, the victim swung at Mr. Miller and missed, and the victim agreed to leave the bar to prevent trouble. Another witness said that, when the victim was leaving, Ms. Reed said something to him about the defendant and the victim "barely shoved" Ms. Reed out of his way and told Ms. Reed "to keep her G.D. lesbian friend out of his face." Still a further witness described the victim as punching Mr. Miller and back-handing Ms. Reed. One witness who saw the defendant shoot the gun said the defendant continued to pull the trigger after the gun was empty.

                [197 W.Va. 595] Mills claimed he told the victim to take Mr. Miller outside and "whip his ass[.]"  The victim, Mr. Mills, and a group of people exited the bar, and Mr. Mills informed the victim he "would watch his back."   Mr. Miller and the victim were "wrestling" in preparation to fight when the defendant attempted to break them up.  The defendant was shoved down in the process and fired the gun five times killing the victim.  Mr. Mills stated he kicked the defendant in the head after she shot the gun and someone grabbed the gun out of her hand and threw it across the parking lot
                

Ms. Reed testified at trial that she saw the victim, the defendant, and Mr. Miller arguing when she went outside. Ms. Reed stated she told the victim to leave the defendant "the F alone" and it was then that the...