State v. Miller

• Decision Date: 04 May 1988
• Docket Number: No. 87-261,87-261
• Citation: 45 St.Rep. 790,757 P.2d 1275,231 Mont. 497
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Kenneth Albert MILLER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1275

757 P.2d 1275

231 Mont. 497

The STATE of Montana, Plaintiff and Respondent, v. Kenneth Albert MILLER, Defendant and Appellant.

No. 87-261.

Supreme Court of Montana.

Submitted March 2, 1988.

Decided May 4, 1988.

Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, John P. Connor, Jr., Asst. Atty. Gen., Richard J. Llewellyn, Co. Atty., Boulder, for plaintiff and respondent.

GULBRANDSON, Justice.

Kenneth Albert Miller (Miller) appeals his conviction by jury trial and denial of his motion for a new trial. The Fifth Judicial District Court, Jefferson County, Montana, sentenced Miller to a 180-year sentence, 75 years on two counts of deliberate homicide under the felony murder rule, 20 years for robbery, and 10 years for felony assault by accountability. We affirm.

The issues we are presented with are stated as follows:

1. Did the District Court err in failing to grant Miller's motion for a change of venue?

2. Did the District Court err in limiting the introduction of character evidence pertaining to codefendant Sean Wentz?

3. Did the District Court err in denying Miller's motion to dismiss at the close of the State's case-in-chief?

4. Did the District Court err in disallowing Miller from cross-examining Wentz on the basis of a report prepared for the defense but not supplied to the State?

5. Did the District Court err in disallowing introduction of Exhibit 1 which portrayed Miller's version of the crimes?

6. Was the jury verdict supported by sufficient evidence?

7. Was Miller properly sentenced by the District Court?

8. Did the District Court err in classifying Miller a "Dangerous Offender"?

9. Did the District Court err in denying Miller's motion for a new trial?

10. Should Miller be eligible for parole in 17 1/2 years?

Miller was charged by amended information with four counts of deliberate homicide under Sec. 45-5-102(1)(a) and (b), MCA; robbery, Sec. 45-5-401, MCA; and felony assault by accountability, Secs. 45-5-202 and 45-2-302, MCA. On March 19, 1987, he was convicted by a jury of deliberate homicide under the felony murder rule, robbery and felony assault by accountability. He was found not guilty of purposely and knowingly committing deliberate homicide. He was sentenced as stated above. A motion for new trial was filed June 22, 1987. After a hearing, the District Court denied the motion for new trial on July 24, 1987. Miller appeals.

On November 18, 1986, Miller and Sean Wentz went hunting after completing work for the same janitorial service. They were drinking. After failing to drop a deer that Miller shot at, they returned to Helena. Wentz picked up his 12-gauge shotgun and they purchased more beer.

Miller and Wentz then proceeded south from Helena. After hunting near Clancy for awhile, they went to Tings bar, in Jefferson City, and consumed more alcohol. Miller suggested they go to Boulder Hot Springs. The two departed at approximately 8:45 p.m. and arrived in Boulder at the Lounge bar. During this portion of the trip, Wentz fired his shotgun four or five times out the window of Miller's white 1968 Volkswagen.

Once at the Lounge, Miller and Wentz drank tequila and received instructions to the hot springs from Terrance Duffy, the owner and bartender. They headed south but could not find the resort. Wentz testified that they agreed to a robbery plan about eleven miles south of Boulder and turned off the highway onto a lane that led to the Wortman family residence. Miller claimed he turned off to urinate. He stated that the door to the car was open and he was unaware of what Wentz was doing due to loud rock music from the car stereo. Wentz, with a shotgun, was observed by Bill Wortman, who opened the door to the trailer house when he heard dogs barking. Wortman, a 14 year-old-boy, testified that he was frightened and slammed the door when Wentz pointed the gun at him.

Wentz testified that he and Miller were at the trailer and Wentz had the shotgun. Marilyn Wortman testified to hearing a car start and seeing lights. She and another son, Shannon, both saw taillights. Marilyn called the police. Shannon Wortman also testified to finding a shotgun shell in the yard the next morning. The shell was taken by Mrs. Wortman to the Sheriff's Office and identified later at trial by experts as being ejected from Wentz's shotgun.

Deputy D.D. Craft responded to Wortman's call at 9:10 p.m. At approximately 9:15 to 9:20 p.m. he saw a white Volkswagen heading toward Boulder and radioed Chief of Police Dennis Sullivan. Sullivan testified to observing a white Volkswagen at the Lounge at approximately 9:20 p.m.

Wentz and Miller testified that they drove back to the Lounge in Boulder. Wentz claimed they returned for the purpose of robbing the bar. Wentz testified he brought the shotgun in to frighten the victims and that Miller entered the bar in front of him. He said Duffy came from around the bar and a struggle ensued. Wentz said Miller encouraged him to shoot Duffy. During the struggle, according to Wentz's first statement, the shotgun discharged. The County Attorney, John Conner, challenged Wentz as to conflicting previous statements and physical evidence. Wentz recanted this statement and testified that Miller grabbed the gun and shot Duffy. He said Miller handed the gun back to him and began picking up the spent shotgun shell when Marie Duffy entered the bar. According to Wentz, as Mrs. Duffy came into the bar, Miller reached around him and pulled the trigger while Wentz held the gun.

Miller claimed they returned to the Lounge for further directions to Boulder Hot Springs. He stated that as he and Wentz sat drinking at the bar, Wentz and Duffy began to argue. Wentz left the bar and returned with the shotgun. Upon seeing the gun, Duffy struggled with Wentz and the gun fired. Miller said he went to the side of the bar next to a beam and did not see the actual shooting of Duffy because he was on his knees facing the wall.

After the shooting, Miller stated Wentz ordered him to retrieve the casing and threatened to shoot Miller if he did not comply. Miller claimed Mrs. Duffy then entered the rear of the bar and Wentz shot her. Miller claimed Wentz forced him to grab money from the cash register and some liquor bottles. Miller gave the cash to Wentz. The two returned to the Volkswagen and proceeded to Helena. Miller said Wentz claimed he killed 32 people in California, had made it 34 and could make it 35.

The local Boulder authorities were notified of the homicides at approximately 10:00 p.m. The Helena authorities were notified by an all points bulletin. Upon returning to Helena, Miller and Wentz proceeded to steal a Jeep and pickup at a local car dealership. They then drove the stolen vehicles to the residence of Tammy Harding, Wentz's fiancee. She testified that Wentz and Miller entered the apartment and Wentz told her two people were down in Boulder and Miller had shot them. At trial, inconsistent testimony was presented that Wentz told Harding he had shot the Duffys after Mr. Duffy and he had argued.

Wentz grabbed clothes and additional ammunition from the apartment. He and Miller then drove to a local car wash, left the Jeep and returned to the automobile dealership to retrieve Miller's Volkswagen. Chester Richey, a fellow employee of Wentz and Miller for the janitorial service, testified Wentz was brandishing the shotgun when he returned to the dealership. Wentz told Richey not to call the police. Richey stated Miller did what Wentz told him.

After Wentz and Miller left Tammy Harding's residence the first time, she telephoned her father and he had his wife notify the Helena police to dispatch an officer to Tammy Harding's residence. Mr. Harding went to Tammy Harding's residence and testified to seeing the two vehicles return with "the black Chevy pickup coming first into the driveway." With Miller driving the Volkswagen and Wentz driving the pickup, the two did return to the circular driveway next to Harding's apartment but did not leave their vehicles. Miller claimed he drove to Harding's residence hoping the police would stop them on the street. Miller and Wentz sped away from the complex when they saw Helena Police Officer Brad Hampton through Tammy Harding's windows. The two individuals fled with Hampton in pursuit ultimately returning to the car wash.

Hampton testified that he stopped Wentz and told him to get on the ground face down. As Wentz did so, he threw some money and stated that Miller had done the shooting. Miller at this time did not stop but instead drove over a rocky embankment and onto the road heading away from the car wash. Miller was stopped shortly thereafter by officer Frank Melton who ordered Miller to go "down into a prone position on the ground" at which time keys to the stolen Jeep fell out of his pocket. These keys were found underneath Miller but he stated they were not his. Miller denied any knowledge as to why he was stopped.

Wentz, after being read his Miranda rights, made several statements to the arresting officers and officers at the Lewis and Clark County Jail to the effect that Miller had done the shootings. Wentz also gave a recorded statement to Jefferson County authorities. Miller denied that he was ever in Boulder but was too intoxicated to make any other statements.

After the trial and sentencing, Wentz, while incarcerated at the state prison, wrote two letters to defense counsel for Miller exculpating Miller of the crimes. In the letters Wentz admitted to contriving the robbery scheme, committing the murders and threatening Miller into assisting. At the hearing on the motion for a new trial, the District Court disallowed the letters saying they were hearsay and even if they were not, the court would not overturn the jury's decision.

Motion to Change Venue

Miller contends the District Court erred in denying his motion to change venue. This motion was properly filed...