State v. Miller

• Citation: 429 N.W.2d 26
• Decision Date: 07 September 1988
• Docket Number: No. 15396,15396
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Todd Micheal MILLER, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 26

429 N.W.2d 26

STATE of South Dakota, Plaintiff and Appellee, v. Todd Micheal MILLER, Defendant and Appellant.

No. 15396.

Supreme Court of South Dakota.

Argued Nov. 16, 1987.

Decided Aug. 3, 1988.

Rehearing Denied Sept. 7, 1988.

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen Atty. Gen., Dennis R. Holmes, Asst. Atty. Gen., Pierre, on brief.

Drew C. Johnson of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendant and appellant; Greg L. Peterson of Bantz, Gosch, Cremer, Peterson & Oliver, Aberdeen, on brief.

HENDERSON, Justice.

PROCEDURAL HISTORY

Defendant Todd M. Miller (Miller) was arrested on May 14, 1985, in connection with events surrounding the disappearance of Michael Kinney (Kinney), whose shot and bludgeoned corpse was subsequently found in an abandoned icehouse located in Brown County. After a six-week jury trial held in the circuit court for Brown County, Miller was convicted of first-degree murder, kidnapping, possession of ransom money, and forgery. The trial court sentenced him to two terms of life imprisonment (murder/kidnapping), a fifteen-year term (possession of ransom money), and a five-year term (forgery). The sentences were to run concurrently. Miller appeals his convictions alleging trial court errors in the following regards:

1) Admission into evidence of items seized pursuant to three search warrants;

2) Production of handwriting samples compelled under a grand jury subpoena;

3) Denial of his motion for change of venue;

4) Hypothetical questioning by the State during voir dire;

5) Sufficiency of evidence to support the murder and kidnapping convictions;

6) Denial of his motion in limine concerning hair and fiber evidence;

7) Admission of expert testimony provided by a "forensic anthropologist" on behalf of the State; and

8) The trial court's use of aiding and abetting jury instructions in the absence of such language in the indictment.

We affirm each conviction.

FACTS

On the morning of May 8, 1985, Kinney left the home he shared with his mother, Mrs. Sandra McNeil, to attend classes at nearby Northern State College in Aberdeen. He never returned.

The next morning, while driving to town, Mrs. McNeil spotted Kinney's car parked on a side road near their home. The car was locked, with Kinney nowhere in sight. After searching the area without results, she became worried and contacted the Sheriff's Department.

At approximately 9:00 a.m. on May 10, Mrs. McNeil received a telephone call from an unidentified man. The caller told her that she should go to a phone booth in an Aberdeen bar and retrieve an envelope from under the pay phone, if she wanted to know what had happened to her son. Mrs. McNeil did so, and found a ransom note demanding $200,000 in exchange for her son. Police agents then secured $190,000 from local banks and took the money to the McNeil residence.

Mrs. McNeil received a second telephone call three days later, in which she was instructed to leave the money near a statue in an Aberdeen park at 9:00 p.m. that night. The caller informed her that Kinney was "okay," and was wearing Nike shoes and jeans, but refused to let her speak to Kinney until "I get the money."

The money was delivered as the caller had directed. Miller picked up the briefcase containing the money and drove off in a blue Oldsmobile, unaware that he had been observed by federal, state, and local law enforcement agents. These agents had previously placed a radio tracking device under a false bottom in the briefcase containing the money. Led by the beeper, the agents followed Miller across the state border to Starbuck, Minnesota, where they stopped his car at a roadblock and arrested him. Prior to the stop, the car attained varying high speeds in excess of 85 miles per hour. Miller had, before leaving Aberdeen changed clothes, switched to an orange Camaro and picked up his seventeen-year-old sister Paula.

At the scene of the arrest, the briefcase was found in the Camaro, which briefcase contained most of the ransom money. Found in Miller's wallet was $862, $760 thereof identified by serial numbers as bills which had been part of the ransom. Miller initially said that the money in his wallet was $500 which he withdrew from his bank account. When advised that there was more than $500 in the wallet, he told the officers the money was given to him by a Mr. Bob Jacobs, as traveling money. ^* This Mr. Jacobs was supposedly going to buy a horse from Miller in Alexandria, Minnesota. During this conversation, Department of Criminal Investigation (DCI) Agent Douglas Lake asked Miller where "Mike" was. He responded, "I wouldn't hurt Mike McNeil. He's my best friend." (Emphasis supplied.) Up to that point, none of the agents had mentioned Kinney's last name. Miller did not, at this time, say that Kinney was in any danger or was involved in an extortion plot.

Agent Lake turned Miller over to two members of the Aberdeen Police Department. Miller told these officers that Bob Jacobs, a casual acquaintance, had asked him to pick up a package behind the statue in the park, and deliver it to Jacobs in Alexandria, Minnesota, in exchange for which Jacobs would buy a horse from him for $45,000. Miller speculated that Jacobs was involved with drugs.

The officers suggested that his story seemed untrue, and, as they were interested in saving Kinney's life, this was a time to be truthful. Miller then told them that Jacobs had instructed him, by telephone, to call Mrs. McNeil and deliver the envelope to the bar. If Miller refused, he would never see "his friend" again, he told the officers. He claimed he later received a second call from Jacobs, in which Jacobs threatened Miller's newborn child. According to Miller, he was to pick up the money and take it to an Alexandria motel. This was Miller's third explanation of the events at issue.

Miller was taken to the motel by the FBI. The next morning, Miller was set out as a decoy at a predetermined time and place, but no Mr. Jacobs materialized.

Miller was then taken back to Aberdeen, where he was held in custody until May 23, 1985. FBI Agent Adrian Mohr interviewed Miller on May 16, at which time Miller related a new, different story, as follows: On May 7, the evening after his son was born, he was celebrating the birth in an Aberdeen bar with some friends. Around 11:00 p.m., he left the bar. He was approached by two individuals, a white man and an Indian, who pulled him into an alley and asked him for a favor, at which point the white man punched him in the stomach. The white man made a veiled threat against Miller and his baby, then the two strangers let him go. Miller went home. A man, whose voice Miller identified as that of the unknown white man, called Miller on May 9, and instructed him to take a note from his mailbox and deliver it to Mrs. McNeil, or Kinney and Miller's baby would be killed. The caller told Miller that Kinney was wearing blue jeans and Nikes. Miller did as he was told, in the process making the May 10 call to Mrs. McNeil. On May 12, Miller received another call from the unidentified white man. He was given instructions regarding the ransom money, which he relayed to Mrs. McNeil. Miller was promised "some money" if he followed orders. As a cover story to explain his trip to Minnesota, Miller told Mohr, he made up the horse tale. After gathering up the ransom money, he went to an Aberdeen bar and tried to recruit a friend, Toby Whittlinger, to join him on his trip. Toby declined, so he called his sister Paula, who went along.

Two days later, on May 18th, Miller related still another story (the fifth) to Agent Mohr: Kinney had initiated the whole thing, and enlisted Miller in an extortion scheme. This scheme required Miller to call Mrs. McNeil and pick up the ransom. Miller suggested the Alexandria motel rendezvous. Kinney indicated that he was in some kind of trouble, which Miller assumed was drug related. On May 7, Miller told Kinney he was backing out. The next day, according to Miller, he received a call from an unknown man with a deep voice. This person informed him that he had to follow through with the plan, or his baby would be killed. Miller admitted that he had written the ransom note and made the calls to Mrs. McNeil. On May 12, the man called again and said: "Do as you're told, nobody else is involved, and nobody gets hurt." Despite this warning, after picking up the money, Miller took his younger sister with him, apparently for protection as, he said, "There's safety in numbers."

Partly as a result of this interview, a warrant for Kinney's arrest was issued. The investigators also found an eyewitness who claimed to have seen Kinney in the motel at Alexandria on the evening of May 13, and had received an anonymous phone tip from a woman who indicated that the kidnapped man could be found at an abandoned farm southeast of Aberdeen. The tip triggered a search in a five- to six-mile radius of Aberdeen, but results were negative.

On May 28, 1985, a farmer found Kinney's badly decomposed body in a derelict icehouse seven miles west of Aberdeen. Kinney's body bore evidence of three .22 caliber bullet wounds and head injuries apparently inflicted with a square-edged instrument. The doctor who performed the autopsy estimated that either set of wounds could have been fatal but that a gunshot wound to the aorta was the actual cause of death. The corpse was in a partially mummified state and showed no signs of having been tied up. Samples of stomach contents were taken which, when analyzed, included part of an olive and degenerated vegetable matter and meat fibers which were consistent with Kinney's last known meal, a pizza topped with pepperoni, sausage, mushrooms, and olives, consumed on May 8, at approximately 6:30 p.m. The doctor testified that normally food passes through the stomach in four to six hours, with some variation. He also opined that Kinney had been dead for...