State v. Miller

• Decision Date: 25 February 2015
• Docket Number: No. 2014–KA–0406.,2014–KA–0406.
• Citation: 160 So.3d 1069
• Parties: STATE of Louisiana v. David L. MILLER.
• Court: Court of Appeal of Louisiana — District of US

160 So.3d 1069

STATE of Louisiana

v.David L. MILLER.

No. 2014–KA–0406.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 25, 2015.

Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Christopher J. Ponoroff, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.

Mary Constance Hanes, New Orleans, LA, for Appellant/Defendant.

(Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge SANDRA CABRINA JENKINS ).

Opinion

PAUL A. BONIN, Judge.

David L. Miller appeals his conviction for the second degree murder of Curtis Timmons, a violation of La. R.S. 14:30.1.¹ Mr. Miller assigns three errors. He first asserts that the evidence was insufficient to sustain the guilty verdict. Second, Mr. Miller argues that the trial judge erred when she permitted the prosecution to elicit testimony from a NOPD homicide detective concerning the detective's understanding of justifiable homicide. Third, Mr. Miller argues that the trial judge erred when she granted the prosecution's challenge for cause of a venireman, and in denying him the right to conduct further voir dire of the venireman in chambers during the jury selection conference.

We have reviewed Mr. Miller's first assignment under the well-known Jackson v. Virginia standard. Conceding that he shot Mr. Timmons, Mr. Miller does not argue that the essential elements of second degree murder were not proven beyond a reasonable doubt. Rather, Mr. Miller asserts that the prosecution failed to prove beyond a reasonable doubt that his actions were not justifiably taken in self-defense. We conclude, after viewing the facts in the light most favorable to the prosecution, that any rational trier of fact could find that the prosecution proved each and every essential element of the offense of second degree murder beyond a reasonable doubt, and that Mr. Miller's killing of Mr. Timmons was not justifiable.

Alternatively, Mr. Miller argues that the jury erred in failing to return a verdict of the lesser offense of manslaughter because he showed by a preponderance of the evidence that his killing of Mr. Timmons was committed in a sudden heat of passion, or heat of blood, caused by provocation sufficient to deprive an average person of his self-control and cool reflection. After reviewing the judgment, we conclude that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that Mr. Miller did not prove the mitigating factors entitling him to a judgment of manslaughter by a preponderance of the evidence. See State v. Lombard, 486 So.2d 106, 110–111 (La.1986) ; State v. Pernell, 13–0180, p. 9 (La.App. 4 Cir. 10/2/13); 127 So.3d 18, 26.

We have reviewed Mr. Miller's second assignment of error under an abuse of discretion standard and conclude that the trial judge erred when she allowed the prosecution to elicit testimony from an investigating detective which, in essence, conveyed to the jury his opinion on Mr. Miller's guilt. Despite this finding, we conclude, in light of the record, that this error was harmless, thus precluding our reversal of Mr. Miller's conviction and sentence on this basis.

We have, likewise, reviewed Mr. Miller's third assignment of error under the abuse of discretion standard and conclude that the trial judge did not abuse her discretion in granting the prosecution's challenge for cause or in denying his request to conduct additional in chambers voir dire of the prospective juror. In addition, we have examined the entire record for errors patent and have detected none bearing upon the Mr. Miller's conviction.²

Accordingly, we affirm Mr. Miller's conviction and sentence. We explain our decision in greater detail below.

I

A

On June 7, 2012, an Orleans Parish Grand Jury indicted Mr. Miller for the second degree murder of Mr. Timmons, a violation of La. R.S. 14:30.1. Trial before a twelve-person jury was held on January 30–31, 2013, and Mr. Miller was found guilty as charged.³ Mr. Miller filed a motion for new trial on March 7, 2013, which was denied prior to sentencing on November 8, 2013. The trial judge subsequently sentenced Mr. Miller to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Mr. Miller then sought timely appellate review of his conviction.

B

David Miller shot and killed Curtis Timmons on June 23, 2010. The genesis of Mr. Timmons's killing was a dispute between neighbors over the inadvertent blowing of grass clippings into the yard of Shawne Proctor, Mr. Timmons's girlfriend. Mr. Miller, who resided at 5189 Basinview Drive in New Orleans, testified that he owned and operated, along with two employees, a lawn cutting business that serviced approximately twenty-two rental units and fifteen homes in the area. Mr. Miller had no contract for service, however, with the owner of Ms. Proctor's rental unit, which was located at 5181 Basinview Drive.

Mr. Miller testified at trial that, on June 23, 2010, he and his employees were working on lawns at the opposite ends of the street, when he observed one of his employees walk across the street to his truck which was parked in the driveway of a customer who also resided on Basinview. Mr. Miller testified that he saw the employee take a blower from the truck. Mr. Miller tried, unsuccessfully, to let the employee know that it was not time to use the blower. Mr. Miller testified that he then got onto his riding mower and began to drive down the street so as to speak with his employee. According to Mr. Miller, as he approached the scene he could hear nothing, although he saw Ms. Proctor standing and throwing a hand up in the air. When he arrived at the scene, Mr. Miller asked Ms. Proctor what was going on. According to Mr. Miller, Ms. Proctor then began to curse and verbally attack him. Mr. Miller testified that Ms. Proctor stated: “You all want to cut some, some mother f–––ing grass around here, you all are going to cut it all.... You all putting grass all over my door and everywhere.” Mr. Miller testified that he told Ms. Proctor that he could get his men to clean the grass clippings and leave. Ms. Proctor, according to Mr. Miller, declined the offer and instead continued to curse him. Mr. Miller testified that he then told his men to take their equipment and leave.

Mr. Miller also testified to noticing an unknown male, identified at trial as Ms. Proctor and Mr. Timmons's friend, Jermain Cole, open Ms. Proctor's front door wider with his hand behind his back. At this point, Mr. Miller testified, he became fearful and began to walk away, telling Ms. Proctor, who was still cursing, to call the police if they could not solve the problem by themselves.

Mr. Miller noted that Mr. Cole had now walked outside to join Ms. Proctor. Mr. Miller then called 911, reported Ms. Proctor's threats, and asked for the police to come out and “see what's going on with her.” 911 call records, which were introduced into evidence at trial by the prosecution, indicate that Mr. Miller first called 911 at approximately 2:28 PM. In the call, which was recorded and played for the jury, Mr. Miller characterizes the incident accordingly: “Uh, yeah, I need a police officer over here on, on 5189 Basinview. I got a stinking-ass whore over here trying to mess with me but I will kill her, I'm telling you now.” After informing the operator that the woman was someone who lived next door,⁴ Mr. Miller stated that Ms. Proctor came out of her apartment cursing at him and his workers and “acting crazy.” In response to the operator's questioning, Mr. Miller described Ms. Procter and added gratuitously that Ms. Proctor wasn't going to “threaten him.”

Before the police arrived, Mr. Cole approached Mr. Miller and, according to Mr. Miller, asked him why he and his men were “f–––ing with my auntie?”⁵ Mr. Miller testified that he told Mr. Cole that he did not know him and that he had better ask Ms. Proctor about what was going on. Mr. Miller stated that before he walked away, Mr. Cole told him that he would be back. Mr. Miller then went and sat on his lawnmower for a moment. Testifying that he did not know what was going to happen, Mr. Miller then went into his house and retrieved his .22 caliber handgun for protection and again called 911.

In this second call to 911, which occurred at 2:39 PM, Mr. Miller states: “Uh, I ain't taking nothing off nobody. Yeah, they got a guy down here trying to f–––with me in my neighborhood.” After again telling the operator his address, Mr. Miller told the operator that he was armed with a gun and that “they tried to jump me.” Mr. Miller then described what he was wearing and told the operator that he was outside in the street.⁶

After calling 911, Mr. Miller testified that Mr. Cole and Ms. Proctor remained outside on the opposite side of the street and that Ms. Proctor kept coming to the edge of her driveway asking: “You going to shoot somebody? You know, you mother f–––ing, you going to do this to me? Shoot me if you're going to shoot somebody. You shoot me.” Mr. Miller also testified that Ms. Proctor kept jumping up and down in the street and saying “Shoot me. Shoot me.”

Mr. Miller stated that at this point he told Ms. Proctor that he did not want to speak with her. Mr. Miller testified that he then raised his hand in the air, told her to go back across the street and asked her to tell Mr. Cole to come out and talk to him. Ms. Proctor refused Mr. Miller's orders. According to Mr. Miller, he then told Ms. Proctor that if Mr. Cole did not come out into the street and speak with him, he was going to come and get him. Mr. Miller testified that the police arrived as he began to walk towards Ms. Proctor and Mr. Cole.

Ms. Proctor, however, relayed a very different version of events to the jury. Ms. Proctor testified that she was not working on June 23, 2010, and was home the entire day. Mr. Timmons, her boyfriend of twelve years and with whom she resided, was at work. Ms....