State v. Miller
| Decision Date | 02 October 2002 |
| Docket Number | No. 2001-1481.,2001-1481. |
| Citation | 775 N.E.2d 498,2002 Ohio 4931,96 Ohio St.3d 384 |
| Parties | The STATE of Ohio, Appellant, v. MILLER, Appellee. |
| Court | Ohio Supreme Court |
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, Angela M. Scott and Ariana E. Tarighati, Assistant Prosecuting Attorneys, for appellant.
Richard J. Perez, Rosplock & Perez, Willoughby, for appellee.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Kelli K. Norman, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.
{¶ 1} On October 7, 1998, the Ashtabula County Grand Jury indicted Jeffrey Miller, defendant-appellee, `on charges of aggravated murder in violation of R.C. 2903.01(A) and felony murder in violation of R.C. 2903.02(B). Both counts carried firearm specifications. The charges were in connection with the shooting death of defendant's wife, Lisa.
{¶ 2} On September 4, 1998, Jeffrey Miller, defendant-appellee, stayed home while his wife, Lisa, went to work. Defendant spoke briefly with his neighbor, Ed Capp, and mentioned that a couple of checks were missing and that he had asked Lisa about them earlier. Defendant told Capp that he planned to go over to his uncle's property that afternoon to go shooting.
{¶ 3} Defendant arrived at his uncle Allen Massena's home around 12:30 p.m. and they left to look at a truck that defendant was considering purchasing. After being unable to find the truck, the two men returned to Massena's home to target practice. Defendant and Massena shot defendant's .357 Magnum. After the two finished target practice, defendant unloaded the gun, put the gun back into the holster, placed the remaining unfired ammunition in the back of his truck, and put the unloaded .357 in a separate place in his truck.
{¶ 4} Around 4:00 p.m., Capp observed defendant sitting on his sun porch and went over to invite him to join him in an area of Ashtabula that includes several bars. Defendant declined, stating that he was going to wait for Lisa to come home.
{¶ 5} Later that night, around 9:00 p.m., defendant went to the Iroquois Lounge and found Capp. Capp noticed that defendant had been drinking prior to entering the Iroquois. Capp bought defendant a beer, and the two men drank a shot. Defendant told Capp that Lisa did not come home and that he had left her a note stating that he was going to leave her. Defendant asked Capp if he would come over to his home and "get his hardware." Capp understood this to mean that defendant wanted Capp to help him remove his guns from his home. The two men left the bar in separate cars and met back at defendant's home.
{¶ 6} After defendant and Capp tried unsuccessfully to light a bonfire, the two men entered defendant's house, and Capp sat down at the kitchen table while defendant went upstairs to bring down his guns. While Capp was seated at the kitchen table, he read a note that defendant had left there for Lisa. Capp testified that defendant stated in the note that he was leaving Lisa and that her crafts, her gambling, and her interests meant more than their marriage. According to Capp, defendant stated in the note that he was leaving to "pursue other interests or avenues." The note also indicated that defendant did not think that Lisa's work schedule, which included working weekends, was necessary.
{¶ 7} Defendant came back downstairs carrying a .357 Magnum revolver in a holster. Capp told defendant that he did not want to bring defendant's guns into his own home unless they were unloaded. Defendant unloaded the .357 Magnum revolver and handed the gun to Capp. Capp took the revolver and checked to be certain that there were no bullets in the gun and then placed the gun back into its holster. Capp handed the gun back to defendant, who placed it on the kitchen table before going upstairs to retrieve his other guns.
{¶ 8} Defendant returned with two shotguns that were both loaded. Capp watched as defendant unloaded the rifles and returned upstairs. Capp walked over to the stairs and saw defendant at the top of the stairs holding an ammunition box when Capp heard the sound of the automatic garage door opening.
{¶ 9} Capp said, "Lisa's home," and he went back into the kitchen and picked up the revolver and the two shotguns. As Capp was leaving, he dropped one of the shotguns. Defendant told Capp, Capp left without the guns.
{¶ 10} Lisa's daughter-in-law, Karen Garside, later testified that she received a telephone call from the defendant at approximately 10:00 p.m. Defendant asked to speak to Karen's husband, Scott, Lisa's son. Karen informed defendant that Scott was not at home. Karen testified that defendant told her that he was looking for Lisa and wondered whether she knew where she was or whether she was with Scott. Karen told defendant that she did not know, and defendant asked Karen to have Scott call him when he returned. Defendant told Karen he was coming over to her home, but Karen asked him not to. Karen testified that defendant sounded drunk and upset.
{¶ 11} Karen testified that she received another call from defendant around 10:20 p.m. in which he informed her that Lisa had returned, and he asked whether Scott had returned as well. Karen informed defendant that Scott had not returned, and defendant asked again that Karen have Scott call him when Scott returned. Karen again agreed to do so. Karen testified that she could hear Lisa in the background during this telephone call. Karen also testified that the tone of defendant's voice would stagger; he would be irritated one moment, anxious and worried the next, and she could tell once again that he had been drinking.
{¶ 12} Melissa Garside, Lisa's daughter, testified that on September 4, 1998, she and Lisa had planned to meet at Lisa's home at 9:00 p.m. so Melissa could pick up a bed. Melissa called her mother's house at 8:55 p.m. to tell her that she was running late but received no answer, and the answering machine did not activate. Melissa tried again unsuccessfully to call her mother at 9:30 p.m. and 10:00 p.m. At approximately 10:20 p.m., Melissa reached her mother on the phone. Lisa informed her daughter that her husband, defendant, was "drunk off his ass and he's playing with all his guns." Immediately after that, defendant got on the phone and told Melissa, Defendant then hung up on Melissa.
{¶ 13} Jason White, the Millers' other next-door neighbor, observed Lisa pull into her driveway and park in the garage. White heard the car door close and then heard defendant, who sounded angry state, "If you don't shut up bitch, I'll kill you." White testified that an hour later, he heard a gunshot. He testified that he did not attempt to call 911 because he often heard gunshots coming from the Miller residence. White also testified that defendant drank a lot and had a beer in his hand every time White saw him.
{¶ 14} Kimberly Cook, a dispatcher for the Ashtabula County Sheriffs Department, testified that defendant made two calls that night regarding an incident at his home. Defendant made the first call at 10:28 p.m. and claimed that the shooting was an accident. The second call was received at 10:30 p.m. Both calls were recorded by the 911 recording equipment and both calls were played for the jury.
{¶ 15} Officer Ronald Kaydo of the Ashtabula Police Department was the first to arrive at the scene. Officer Kaydo testified that the revolver was lying on the kitchen table, about three feet from Lisa's body. He also observed a holster lying on the floor. Officer Kaydo testified that the holster had some damage to the end of it. Officer Kaydo observed Lisa slumped over the table and defendant with his left hand on the back of Lisa's neck, who stated that he was trying to stop the bleeding. Defendant said that "it was an accident, that he accidentally shot her." Officers conducted a safety sweep of the house. In the upstairs bedroom they found a large ammunition box, ammunition, and shotguns.
{¶ 16} Richard Turbok, a firearms examiner with the Ohio Bureau of Criminal Identification and Investigation, testified that to a reasonable degree of certainty, the bullet found lodged in the wall stud of the kitchen in the Miller home was fired from defendant's .357 Magnum revolver. Turbok also testified as to the amount of force necessary to pull the trigger of the .357 Magnum revolver to make it fire. Turbok explained that the revolver could be discharged in single action or double action mode. He testified that the amount of weight it takes for the trigger to be pulled to fire the weapon was 6 pounds when the gun was in single action mode and 12 ½ pounds of pressure when the gun was in double action mode. Dr. Robert Challener, the Chief Deputy Coroner in Cleveland, performed the autopsy on Lisa Miller and determined that she had bled to death from having been shot once in the face from a distance of approximately 18 inches.
{¶ 17} Defendant was indicted on charges of aggravated murder with a firearm specification in violation of R.C. 2903.01(A), and felony murder with a firearm specification in violation of R.C. 2903.02(B). A jury returned a verdict finding defendant not guilty of aggravated murder but guilty of murder while committing an offense of violence (felonious assault) and found that defendant had had a firearm while committing the offense of violence and had used it to facilitate the offense of murder while committing that offense. Defendant was sentenced to serve fifteen years to life in prison for felony murder and three years for the firearm specification with the two sentences to run consecutively.
{¶ 18} In a split decision, the Ashtabula Court of Appeals reversed the judgment of the trial court and remanded the matter to the trial court for a new trial. The court of appeals...
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