State v. Miller

Decision Date20 July 2001
Docket NumberNo. 20000337.,20000337.
Citation2001 ND 132,631 N.W.2d 587
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Daniel Linton MILLER, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Tory J. Langemo (argued), Senior Legal Intern, Sonja Clapp (appeared), Assistant State's Attorney, Grand Forks, ND, for plaintiff and appellee.

Loretta J. Walberg (argued), Grand Forks, MN, for defendant and appellant.

Thomas J. Kuchera (on brief), Grand Forks, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Daniel Miller appealed from a criminal judgment entered upon a jury verdict finding him guilty of gross sexual imposition. We affirm, concluding (1) the trial court did not abuse its discretion or violate Miller's right to present a defense when it excluded evidence and (2) a minor reconfiguration of the courtroom to accommodate the child victim's testimony was not obvious error.


[¶ 2] Between December 1998 and March 1999, Miller lived with his sister R.A. ("Rhonda," a pseudonym) and her family in their home on the Grand Forks Air Force Base. Miller then moved out of their home and eventually returned to his home state of Washington.

[¶ 3] In April 2000, Rhonda was contacted by school authorities regarding sexually inappropriate conduct at school by her first-grade daughter, A.R. ("Ann"). When Ann returned home from school, Rhonda and M.A. ("Mike"), Ann's stepfather, questioned her about the incident and asked if anyone had ever been inappropriate with her. Ann eventually revealed that Miller had "peed" on her on several occasions in the bathroom and basement of the family's home while he was living there. Rhonda contacted a child psychologist, and the matter was investigated by military officials, the county sheriff's department, and a social worker. In interviews, Ann related that Miller had on several occasions masturbated on her at the family's home on the base.

[¶ 4] Miller was charged with gross sexual imposition. The jury found him guilty, and Miller appealed from the criminal judgment.


[¶ 5] Miller asserts the trial court erred in excluding evidence of a dream Ann had about another male relative, and in excluding evidence of an abuse and neglect report filed against Rhonda and Mike.

[¶ 6] The trial court has broad discretion over evidentiary matters, and we will not overturn a trial court's decision to admit or exclude evidence unless the court abuses that discretion. State v. Erickstad, 2000 ND 202, ¶ 34, 620 N.W.2d 136; State v. Jensen, 2000 ND 28, ¶ 10, 606 N.W.2d 507. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Erickstad, at ¶ 34; State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524.


[¶ 7] Miller argues the trial court erred in excluding evidence of a dream Ann had about another male relative, Jamie. The dream came to light through a note in Ann's school file written by her first grade teacher, Kristin Spradlin. The note, dated April 17, 2000, says, in pertinent part:

Pam Beck [another teacher] shared a conversation she overheard between [Ann] and [another student] on 4-14-00. Also stated [Ann] came in crying and just wanted to leave to be with Mom.
[Ann] was sharing that she had a bad dream about Jamie (Mom's old boyfriend) and that he would make her go downstairs and wear this necklace. She stated she was very scared because he said the wolves would come get her.1

[¶ 8] The State filed a motion in limine to exclude this evidence because it was hearsay. At the beginning of the trial, the court ruled the April 17, 2000 note was hearsay and would be excluded.

[¶ 9] The note presents multiple levels of hearsay. There is Ann's out-of-court statement overheard by Beck, Beck's statement to Spradlin, and Spradlin's written note. Each of these constitutes a separate level of hearsay, and Miller would have to establish an exception for each level of hearsay for it to be admissible under the rules of evidence. See N.D.R.Ev. 805; State v. Lefthand, 523 N.W.2d 63, 68 (N.D.1994).

[¶ 10] On appeal, Miller concedes this evidence is hearsay but argues that, under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), exclusion of the evidence violates his constitutional right to present a defense.2 Miller argues that, under Chambers, a defendant's due process right to present evidence in his behalf may "trump" state evidentiary rules, including the hearsay rule.

[¶ 11] Chambers presented a clearly distinguishable factual scenario. Chambers had been charged with killing a police officer. Another man, McDonald, shortly after the shooting told several people that he had killed the officer, and he eventually gave a signed, sworn confession to the murder to Chambers's attorneys. However, McDonald subsequently recanted his confession. Because Mississippi still adhered to the "voucher rule," whereby a party could not repudiate his own witness, Chambers was not allowed to call McDonald to the stand and cross-examine him about his prior confessions. Furthermore, because Mississippi's version of the hearsay rule did not provide an exception for statements against penal interest, Chambers was also prevented from calling third parties to testify they had heard McDonald admit he had killed the officer. Chambers was allowed to introduce McDonald's written confession but, when McDonald testified he had not killed the officer and had confessed in an attempt to share in a civil lawsuit against the city, Chambers was not allowed to question him about his confessions to other persons.

[¶ 12] On these facts, the United States Supreme Court held that, where the "testimony... was critical to Chambers' defense" and "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers, 410 U.S. at 302, 93 S.Ct. 1038. The Court pointed out, however, that it was not establishing any new rule of law, and indicated that its holding was limited to the facts of that case. Id. at 302-03, 93 S.Ct. 1038. In Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), under similar circumstances, the Court in a per curiam opinion followed Chambers and again held evidence of another person's confession which would have exonerated the defendant should have been admitted.

[¶ 13] Chambers does not create a broad rule that the right to present a defense "trumps" well-developed, long-standing rules of evidence which are designed to insure that only reliable, trustworthy evidence is presented to the finder of fact. The Court in Chambers cautioned that its holding was based upon the unique facts and circumstances presented in that case. More significantly, the United States Supreme Court in subsequent decisions has strictly limited Chambers to its unique facts. See United States v. Scheffer, 523 U.S. 303, 316, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998)

; Montana v. Egelhoff, 518 U.S. 37, 52-53, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion). The Egelhoff Court labeled Chambers "an exercise in highly case-specific error correction." Egelhoff, at 52, 116 S.Ct 2013. The Court in Scheffer concluded that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials," and "[s]uch rules do not abridge an accused's right to present a defense so long as they are not `arbitrary' or `disproportionate to the purposes they are designed to serve.'" Scheffer, at 308, 118 S.Ct. 1261 (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)); see also State v. Flohr, 301 N.W.2d 367, 371 (N.D.1980) ("A defendant's right to present evidence on his own behalf ... is not a right to confound otherwise reasonable rules of procedure aimed at ascertaining the truth and accomplishing justice."). The United States Supreme Court has recognized that "Chambers therefore does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence." Scheffer, at 316, 118 S.Ct. 1261.

[¶ 14] The evidence sought to be admitted in this case does not fall into the same category as that excluded in Chambers and Green. In each of those cases, the excluded evidence was a confession to the crime by someone else. In this case, the evidence is a child's recollection of a dream. Even if accepted as true, the evidence about Ann's dream contains no specific sexual content, does not directly refute any of the State's evidence against Miller, and is, at best, marginally relevant. Miller's assertion that this evidence was highly reliable and critical to his defense is unsupportable.

[¶ 15] Furthermore, Miller has mischaracterized the extent of the trial court's ruling in this case. Miller argues the trial court excluded all evidence about the dream. The record, however, clearly shows the trial court specifically excluded only the school note, and expressly left open the possibility of admission of evidence about the dream in another manner:

With regard to testimony about dreams the minor may have had after the alleged incident, if this is being offered through someone other than the minor child, it is certainly hearsay. If and when counsel intend to offer testimony through the minor child as to what dreams she might have had which they feel may be relevant, I intend to afford counsel the opportunity at that time to make an offer of proof outside the hearing of the jury at that juncture in trial. Therefore, further determination on the dream issue will be deferred until then. The April 17, 2000, note is excluded as hearsay.

Thus, the trial court did not exclude all evidence regarding the dream Ann had about Jamie. Miller did not attempt to elicit testimony about the dream through any witness or make an offer of proof.

[¶ 16] Under the circumstances...

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