State v. Miller

• Decision Date: 28 October 2011
• Docket Number: No. 99,232.,99,232.
• Citation: 264 P.3d 461
• Parties: STATE of Kansas, Appellee,v.Saul Arthur MILLER, Appellant.
• Court: Kansas Supreme Court

264 P.3d 461

STATE of Kansas, Appellee,

v.Saul Arthur MILLER, Appellant.

No. 99,232.

Supreme Court of Kansas.

Oct. 28, 2011.

Syllabus by the Court

1. A defendant is guaranteed the right to be free from double jeopardy by the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. This right is not violated by a retrial if the previous trial ended in a mistrial that was requested by the defendant, except where the defendant's mistrial motion was based on prosecutorial misconduct that was motivated by the prosecutor's intent to provoke a mistrial.

2. In reviewing a trial court's decision that double jeopardy does not bar a retrial following a mistrial resulting from prosecutorial misconduct, an appellate court first determines whether the trial court's factual finding that the prosecutor did not intend to provoke a mistrial is supported by substantial competent evidence and, second, conducts a de novo review of whether the trial court's finding supports its conclusion of law.

3. Allegations of prosecutorial misconduct that arise as evidentiary claims, as opposed to misconduct occurring during opening or closing statements, require a contemporaneous evidentiary objection pursuant to K.S.A. 60–404 to be reviewable on appeal.

4. A prosecutor crosses the line of appropriate argument when a remark is intended to inflame the jury's passions or prejudices or when the remark diverts the jury's attention from its duty to decide the case on the evidence and controlling law. However, in determining if the remark is within the wide latitude allowed a prosecutor during his or her argument, an appellate court may consider whether the prosecutor's remark is provoked or made in response to defense counsel's remarks.

5. A party who does not object to a trial court's determination that a child witness is disqualified from testifying and who acquiesces in the ruling fails to preserve an appellate argument that the trial court erred in disqualifying the witness.

6. The determination of whether a victim's statements to a sexual assault nurse examiner are testimonial is a highly context-dependent inquiry. The determination requires an objective analysis of the circumstances of the statements, considering such things as whether the sexual assault nurse examiner is a State actor or agent, whether there was an ongoing emergency, whether the encounter was formal, and whether the statements and actions of the victim and the sexual assault nurse examiner reflect the primary purpose of the questioning is for a use other than the later prosecution of a crime.

7. Statements made by a 4–year–old victim to a sexual assault nurse examiner were not testimonial where the victim was complaining of discomfort, the victim's mother had decided to seek medical treatment for the child independent of any request by law enforcement for a forensic examination, and the sexual assault nurse examiner provided treatment in addition to collecting evidence during the examination.

8. The cumulative error doctrine does not apply if no error or only one error supports reversal.

9. An appellate court lacks jurisdiction to review a criminal defendant's complaint that a sentencing court abused its discretion by sentencing the defendant to any term within the presumptive grid block, even if the sentence is the aggravated term.

10. The use of a defendant's criminal history for sentencing purposes, without putting it to a jury and proving it beyond a reasonable doubt, does not violate Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Ellen H. Mitchell, county attorney, argued the cause, and Steve Six, attorney general, was with her on the briefs for appellee.

The opinion of the court was delivered by LUCKERT, J.:

This appeal follows the second trial of Saul Arthur Miller, who was convicted of rape, aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child. Miller's first trial ended in a mistrial when the State repeatedly violated the trial court's pretrial order limiting admission of the victim's statement. That mistrial becomes important in this appeal because Miller alleges the retrial violated his right to be protected from double jeopardy. Miller also argues the prosecutor committed misconduct, the trial court erred in disqualifying the child victim as a witness, the trial court erred in admitting evidence of statements made by the child victim to a sexual assault nurse examiner (SANE) in violation of his right to confront witnesses, the trial court's errors accumulated to deny him a fair trial, and the trial court committed sentencing errors.

The Court of Appeals affirmed Miller's convictions and sentences. State v. Miller, 42 Kan.App.2d 12, 208 P.3d 774 (2009). Miller filed a petition for review, which this court granted as to all issues. Our jurisdiction arises from K.S.A. 22–3602(e) (petition for review) and K.S.A. 20–3018(b) (same). On review, we reject all of Miller's arguments and affirm his convictions and sentences.

Facts and Procedural Background

Thirty-year-old Miller was a close friend of the victim's family. He visited the family often, occasionally spending the night at their home. The victim's mother, testified she never had any concerns about Miller playing with her 4–year–old daughter, N.A., who was the alleged victim. In fact, N.A. called Miller “Uncle Saul.”

On July 19, 2005, Miller stopped by the victim's home in the early evening. The entire family was at home that evening—N.A.; N.A.'s mother and the mother's fiancé; N.A.'s grandmother, who lived with the family; and N.A.'s brother. N.A. spent most of the evening watching movies in the living room with Miller, who ended up spending the night at the family's home. Miller slept on a loveseat in the living room, while N.A. slept on the living room couch. The other members of the family slept in their bedrooms, except for N.A.'s grandmother who left around 9:30 p.m. for work.

According to N.A.'s mother, Miller left the home “quickly” after waking the next morning. That evening, N.A.'s mother asked if N.A. wanted “Uncle Saul” to spend another weekend at the house watching movies. N.A. said “No.” When her mother asked why not, N.A. stated Miller had “hurt her.” N.A. pointed to her vaginal area and told her mother that Miller had “touched her with his thingy and his fingers.” N.A. also stated Miller held her arms down and her mouth shut during the attack. When asked why she did not tell her mother about the incident sooner, N.A. explained that Miller told her not to tell her parents. Upon N.A.'s complaint of vaginal pain, N.A.'s mother and grandmother examined N.A. and discovered that N.A.'s vagina was very red and irritated.

N.A.'s mother contacted law enforcement and N.A. was taken to the hospital emergency room, where she was examined by a SANE. The examination revealed several tears and abrasions on N.A.'s vagina and anus. The SANE did not observe any signs of handprints, bruising, discoloration, or scraping to N.A.'s arms or mouth.

Based on N.A.'s allegations, officers took Miller into custody on July 23, 2005, and Officer Shane Ashton interviewed Miller. According to Ashton, during the 1–hour interview Miller did not initially admit to any inappropriate touching of N.A. However, Miller eventually agreed to tell Ashton “what really happened between him and [N.A.]” in exchange for a cigarette. Ashton agreed, and Miller admitted to touching N.A.'s vagina with his hand, both on top of and underneath her underwear, and to inserting his finger into N.A.'s vagina. Miller did not admit to using his penis for penetration or to any anal penetration. Miller informed Ashton the incident occurred in the living room while N.A.'s mother was on a nearby computer and the mother's fiancé was upstairs.

Miller completed a written statement: “I touched her vagina with my finger throw [ sic ] her underwear[.] I might have touched her skin. I did put [it] on bear [ sic ] skin. I put finger in her not my penis.”

The State charged Miller with rape, aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child.

The State filed a pretrial motion requesting a hearing to determine whether, in the event N.A. was disqualified as a witness at trial, N.A.'s statements to her mother, her grandmother, and the SANE were admissible under the child-witness hearsay exception contained in K.S.A. 60–460(dd). The court held a hearing on the matter the day before the first trial. Miller argued that N.A.'s statements to all three women were testimonial and, therefore, the admission of this evidence would violate his confrontation rights. The State proffered the testimony of N.A.'s mother and grandmother, which the court found admissible because N.A.'s statements were nontestimonial.

In addressing whether N.A.'s statements to the SANE were testimonial, the State acknowledged the SANE would not be able to say “who did it ... the name and identity.” Nevertheless, the State questioned whether N.A.'s statements of “what happened” were testimonial. The prosecutor stated, “Saul Miller will not be, would not be mentioned, but [N.A.'s] statements, that [she] was touched with a thingy in this area, I believe those are admissible statements.”

Upon inquiry from the trial court, the State explained the purpose of the SANE's examination was two-fold: (1) examination and treatment of injuries, and (2) testimony in court. The trial court ultimately ruled:

“The [SANE] ... can testify as to what is medically relevant, ... to the actual injuries observed. Because, as counsel has pointed out, this is a nurse and it is a medical treatment, a medical procedure. Who is not relevant. When is not necessarily relevant. Where...