State v. Miller

• Decision Date: 12 July 2002
• Docket Number: No. 86,761.,86,761.
• Parties: STATE OF KANSAS, Appellee, v. MICHAEL J. MILLER, Appellant.
• Court: Kansas Supreme Court

274 Kan. 113

49 P.3d 458

STATE OF KANSAS, Appellee, v. MICHAEL J. MILLER, Appellant.

No. 86,761.

Supreme Court of Kansas.

Opinion filed July 12, 2002.

John Jenab, of Jenab & Kuchar, of Olathe, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Appellant Michael J. Miller appeals his conviction for criminal use of a financial card under K.S.A. 21-3729. Miller contends the trial judge's comments during his bench trial constituted judicial misconduct and deprived him of his constitutional right to a fair trial.

At approximately 6 p.m., while at the Oak Park Mall on the evening of August 5, 2000, Mary Gorski discovered that the credit card she had been using to make purchases at the mall was missing. Mary called the "The Walking Company," the last store she had visited, and asked if her credit card was there. The clerk that had waited on her, Vikshit Patel, was on break at the time. The store manager told Gorski that she did not see the card. Gorski and her son then returned to The Walking Company and observed Patel return from his break with a bag from "Champs" and a bag from "Eddie Bauer." Patel denied having the card.

After leaving the mall, Gorski contacted the credit card company and learned that the last purchase on her card was at Champs in the Oak Park Mall. Gorski had not been to Champs. Immediately, Gorski went to Champs. The man she spoke with at Champs, Tyrone Johnson, initially told her that he was unable to check the credit card receipts and that she would have to come back when a manager was there. Johnson later agreed to check the receipts, and Gorski observed the receipt from her card at the bottom of the pile. Johnson told Gorski that he did not know who had conducted the sale. Gorski left Champs and called the police. A police officer accompanied Gorski back to Champs. When questioned, Johnson admitted that he was the store manager and had conducted the sale. Johnson's employee number was located on the top of the receipt, indicating that he had conducted the sale.

After further investigation, Miller, Johnson, and Patel were criminally charged. Miller was charged with criminal use of a financial card, a class A nonperson misdemeanor, pursuant to K.S.A. 21-3729. Miller waived his right to a jury trial. A bench trial was held January 19, 2001. Patel, who was on probation, pled guilty in exchange for his testimony against Johnson and Miller.

During the bench trial, Patel testified that he found Gorski's credit card while working at The Walking Company. Patel remembered that Miller, also known as "Mickey," had told Patel to come to him if he ever found a lost credit card. Miller had indicated that he would help Patel buy things with it. Miller worked at the "Watch Station" in the mall and had worked there for 2½ to 3 years. Patel went to the Watch Station with Gorski's credit card. Patel testified that he and Miller then went to Champs at Miller's suggestion. When they arrived at Champs, Miller and Johnson went off to the side to talk. Patel had not met Johnson before. When they were finished talking, Johnson asked Patel what he wanted. Johnson told Patel and Miller to bring the items to the counter. Patel purchased two pair of shoes, a football, and a pair of gloves, totaling approximately $395, with Gorski's credit card. One pair of shoes was for Miller. Johnson rang up the sale, and Patel signed the receipt "Mary Gorski." The receipt noted the time of purchase as 6:24 p.m. Patel then took the merchandise to the Watch Station and left it there, taking an empty bag back with him to The Walking Company. Miller had told Patel to leave the merchandise at the Watch Station so that if anyone came looking for it Patel could deny everything.

Later that evening when the police came to talk to Patel, Patel confessed. Patel and a police officer then went to retrieve the merchandise from Miller. When they arrived at the Watch Station, Patel retrieved all the merchandise from Miller, except for one pair of shoes. Miller indicated the shoes were at the store next door, "Babbages." Patel and the officer then went to Babbages and retrieved the pair of shoes.

During a subsequent conversation with Miller, Patel wore a wire. Miller did not admit to using Gorski's credit card during that conversation. Instead, Miller commented on how Patel had gotten caught without any merchandise on him. Patel testified that Miller has threatened him since the incident, telling him to "[w]atch what you do or say."

Johnson pled no contest as to his involvement and was sentenced to probation. Johnson was not required to testify against Miller as a part of any agreement. Johnson testified that Miller had come into Champs that evening and that he had talked to Miller before Gorski had come to the store asking about the transaction with her credit card. When asked if Patel accompanied Miller to Champs that evening, Johnson stated that he did not know Patel and that he did not remember talking to him. Johnson knew Miller from working at the mall. After being interviewed by police, Johnson waited around for Miller and gave Miller a ride home.

Officers investigating the incident testified that Johnson had told them that he did not remember if Patel or Miller had been in Champs that evening and that he had not spoken to either of them. Johnson had also claimed he did not remember the transaction with Gorski's credit card, although he did admit that he had completed the transaction because his employee number was on the receipt. Commissions made up a portion of Johnson's paycheck from Champs.

When questioned by police, Miller denied any knowledge of the incident. Miller told police that Patel had left the merchandise with him to hold because Patel said his mother becomes angry when he spends his paychecks at the mall. At first, Miller denied that he had gone to Champs that evening, but later told police that he had. One officer testified that Miller admitted to talking to Johnson while at Champs, while another officer testified that Miller denied having any contact with Johnson. Miller indicated that he had gone to Champs to look for a pair of shoes for his brother. Miller denied knowing Patel and indicated he only barely knew Johnson.

An employee of an affiliated store located directly across from the Watch Station told police that at some point later in the evening Miller had left the Watch Station for 2 to 3 minutes. This employee watches over the Watch Station when the Watch Station's employees have to step away.

A few days after the incident, Detective Roger Ware was in the mall. At the time, Detective Ware knew little about the incident because he had been out of town. Detective Ware had known Miller from working as a community police officer at the mall and liked him. Miller waved Detective Ware over and asked him whether he had heard any rumors about what was going on in the mall regarding credit cards. Detective Ware thought Miller was acting suspiciously. Upon telling Miller this, Miller told Detective Ware that he knew everything about the incident. When Detective Ware asked Miller whether he had been involved, Miller looked down and nodded his head up and down. Detective Ware testified that because of Miller's personality, it was possible Miller knew everything about the incident but was not involved.

A clerk from Babbages testified that Miller had brought the pair of shoes over and had indicated that he was holding them for someone else and that he would be bringing over more items. Miller never brought any additional items to Babbages. Miller had told the clerk that he needed the clerk to hold the merchandise because he (Miller) would not be around to deliver it. A coworker of Miller's testified that she had left work about 6:40 or 6:45 p.m. that evening. She testified that from early afternoon until the time she left, Miller never left the store. She did not believe it likely that Miller could have left the store for a few minutes without her knowing, but testified that it was possible.

Miller testified that at approximately 6:50 p.m. he spoke with Patel for a few minutes at The Walking Company about a phone Patel was thinking of buying from him. Within a few minutes of returning to the Watch Station, Miller testified that Patel arrived carrying a Champs bag and an Eddie Bauer bag. Patel asked Miller to hold the items for him until later that evening because his mom became angry when he spent his whole paycheck at the mall. Miller testified that he informed Patel that he would be leaving at 9 p.m. exactly, so he would take the items next door and Patel could pick them up there. Miller testified that he then went to get something to eat. While waiting for his food, Miller indicated that he went to Champs to look for shoes for his brother, denying having talked to Johnson at that time. Miller then picked up his food and returned to his store. A food receipt was admitted into evidence showing a purchase at 7:07 p.m. Miller testified that at approximately 8 p.m. he took one pair of shoes over to Babbages. He intended to take the rest of items over later, but did not accomplish it before Patel and the officer arrived to retrieve the merchandise. Miller testified that he did not take all the items at one time because they were not in a bag and it was too difficult to carry them all. Miller testified that he had caught a ride home from Johnson after the questioning because he did not have any other ride.

Miller was found guilty and sentenced to 1 year's probation, with an underlying sentence of 8 months in the county jail. Miller was also ordered to serve 7 days in the county jail as a condition of his probation. A timely notice of appeal was filed. This court has...