State v. Miller

• Decision Date: 24 April 2007
• Docket Number: No. WD 65893.,WD 65893.
• Citation: 220 S.W.3d 862
• Parties: STATE of Missouri, Respondent, v. Dennis G. MILLER, Appellant.
• Court: Missouri Court of Appeals

220 S.W.3d 862

STATE of Missouri, Respondent, v. Dennis G. MILLER, Appellant.

No. WD 65893.

Missouri Court of Appeals, Western District.

April 24, 2007.

Ruth Sanders, Kansas City, MO, for Appellant.

Shaun J. Mackelprang, Jefferson City, MO, for Respondent.

Before ROBERT G. ULRICH, P.J., THOMAS H. NEWTON, J., and GENE R. MARTIN, Sp.J.

ROBERT G. ULRICH, Presiding Judge.

Dennis Miller appeals his conviction following jury trial for murder in the first degree, section 565.020, and assault in the first degree, section 565.050, and his sentence of life imprisonment without the possibility of parole for murder in the first degree and fifteen years imprisonment for assault in the first degree. In his sole point on appeal, Mr. Miller claims the trial court erred in excluding the testimony of a doctor and counselor that he was suicidal in the weeks prior to the incidents for which he was convicted. The point is denied, and the judgment is affirmed.

Facts

The facts presented at trial are viewed in the light most favorable to the verdict. State v. Barriner, 111 S.W.3d 396, 397 (Mo. banc 2003).

Dennis and Jewell Miller were married in 1984. Mr. Miller moved out of the marital home in February 2003. James Pat Hughes, Ms. Miller's boyfriend, moved in with Ms. Miller in March 2004.

Mr. Miller went to the marital home, which Ms. Miller was sharing with Mr. Hughes, on August 14, 2004. Surveillance cameras placed around the house reveal that Mr. Miller hid in the bushes in front of the house from approximately 4:20 A.M. until approximately 7:20 A.M. Mr. Miller confronted Mr. Hughes in the driveway at approximately 7:20 A.M. Mr. Hughes called 911 on his cell phone. The 911 operator heard the caller say: "It will be the last thing that you'll ever do in your life." The operator heard another person respond: "No. It will be the last thing you do in your life." The 911 call was terminated, and Mr. Miller shot Mr. Hughes in the chest with a .38 caliber revolver Mr. Miller brought with him to the marital home.

At approximately 7:20 A.M., a neighbor heard loud voices, looked out her kitchen window, and saw Mr. Miller and Mr. Hughes in the driveway of the marital home. Mr. Hughes was talking on his cell phone. The neighbor testified that Mr. Miller looked at her, and she made eye contact with him. The neighbor shut her blinds and then heard a loud noise sounding like "metal on metal."

After shooting Mr. Hughes, Mr. Miller walked into the house and went into the bedroom where Ms. Miller was waking up. Mr. Miller stared at Ms. Miller in the bed and looked into the bathroom. He reached into a closet, picked up a shotgun owned by Mr. Hughes, and then put it back down. Ms. Miller left the bedroom. Mr. Miller followed her, caught her, and pulled her by her arm and by her hair while she tried to leave the house. Mr. Miller displayed a gun during this struggle, but he did not point it at her. Mr. Miller eventually let Ms. Miller go, and she ran to a neighbor's house. Ms. Miller sustained numerous cuts and bruises during her struggle with Mr. Miller.

After Ms. Miller ran outside, Mr. Miller closed and locked the door. The police found him in the basement of the marital home, and he was arrested. The police found Mr. Hughes lying in the driveway. He had been fatally shot once in the upper chest.

Mr. Miller was charged with murder in the first degree, section 565.020, assault in the first degree, section 565.050, and two counts of armed criminal action, section 571.015, for Mr. Hughes' death and the assault on Ms. Miller. On the morning of the second day of the trial, during jury selection, Mr. Miller made an offer of proof of the testimony of Dr. John Schmitz and of JoAnn Hall. The witnesses were presented for two purposes: (1) to testify as expert witnesses that Mr. Miller was entitled to present a defense under Chapter 552¹ and (2) to testify as fact witnesses as to Mr. Miller's location the month prior to the shooting, the medications he was prescribed, and his suicidal state. As relevant to the second purpose,² Dr. Schmitz testified Mr. Miller was a patient at Two Rivers Psychiatric Hospital intermittently from July 9, 2004, until August 6, 2004, and was an outpatient until August 19, 2004, the day of the shooting. Dr. Schmitz described Mr. Miller as suicidal. JoAnn Hall, Mr. Miller's therapist at Two Rivers Psychiatric Hospital, also described Mr. Miller as suicidal.

Mr. Miller's counsel argued that, even if this evidence were inadmissible under Chapter 552, it was admissible as evidence that would tend to negate the elements of intent and deliberation. The trial court ruled that the evidence was inadmissible because the defense had not given notice of intent to rely on evidence of mental disease or defect excluding responsibility as required by Chapter 552.

Mr. Miller admitted at trial that he shot Mr. Hughes and struggled with Ms. Miller. He argued, however, that he did not deliberate before shooting Mr. Hughes and that he did not intend to kill or injure Ms. Miller. The defense informed the jury that it would present evidence that Mr. Miller did not intend to encounter or shoot Mr. Hughes. Mr. Miller's counsel made two arguments in his defense.

First, he argued that Mr. Miller went to the marital home with the plan of committing suicide in front of Ms. Miller. In its closing argument, the defense argued that when Mr. Hughes stated: "don't let this be the last thing you do," he meant, "don't kill yourself." Second, he argued Mr. Miller shot Mr. Hughes either in self-defense or accidentally during a struggle. Mr. Miller called his mother, father, and sister as witnesses. They testified that Mr. Miller and Mr. Hughes had a contentious relationship, and Mr. Miller had been informed that Mr. Hughes was a prior member of the special forces in the military and had killed over 120 men. The purpose of this testimony was to demonstrate Mr. Miller believed Mr. Hughes posed a threat, had reason to fear Mr. Hughes, and believed that he could and would harm him when the two encountered one another in the driveway on the morning of the shooting. Thus, the defense was that Mr. Miller went to the marital home planning to commit suicide, encountered Mr. Hughes, believed Mr. Hughes posed a threat, and shot Mr. Hughes in self-defense. Further, Mr. Miller attempted to restrain Ms. Miller so as to commit suicide in her presence, and not for the purpose of harming her.

At the end of the trial, Mr. Miller elected not to testify. Without Mr. Miller's testimony, there was insufficient evidence to warrant the giving of a self-defense instruction to the jury.³ Thus, the defense of self-defense was unavailable. The testimony of Mr. Miller's mother, father, and sister did not reference suicide or Mr. Miller's purported suicidal ideation, and Mr. Miller presented no evidence that he was suicidal.

Mr. Miller was convicted on all four counts and sentenced as recommended by the jury. He was sentenced to life imprisonment without the possibility of parole for murder in the first degree, life imprisonment for the first count of armed criminal action, fifteen years imprisonment for assault in the first degree, and fifteen years imprisonment for the second count of armed criminal action, with the fifteen year sentences to run consecutive to the life sentences. His timely appeal followed.

Standard of Review

"A trial court enjoys considerable discretion in the admission or exclusion of evidence." State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005). "`This standard of review compels the reversal of a trial court's ruling on the admission of evidence only if the court has clearly abused its discretion.'" State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006) (citation omitted). When a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration, that discretion is abused. Gonzales, 153 S.W.3d at 312. "`The denial of the opportunity to present relevant and competent evidence negating an essential element of the state's case may, in some cases, constitute a denial of due process.'" State v. Boyd, 143 S.W.3d 36, 40 (Mo.App. W.D.2004) (citation omitted). "The due process clause does not require the admission of irrelevant evidence or even the admission of all relevant evidence, however." Id.

"Additionally, on direct appeal, this Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Forrest, 183 S.W.3d at 223-24 (quote marks and citation omitted). "Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial." Id. at 224. "The erroneous exclusion of evidence in a criminal case creates a presumption of prejudice which can only be overcome by a showing that such erroneous exclusion was harmless error beyond any reasonable doubt." State v. Gerhart, 129 S.W.3d 893, 900 (Mo.App. W.D.2004)(quotation marks and citation omitted). "If the proof of defendant's guilt was overwhelming, the [S]tate will have rebutted the presumption of prejudice." Boyd, 143 S.W.3d at 46-47.

Analysis

In his sole point on appeal, Mr. Miller argues the trial court erred in excluding the testimony of Dr. Schmitz and Ms. Hall that he was suicidal in the weeks before the shooting. He claims the trial court violated his rights to due process of law, to a fair trial, and to present a defense as guaranteed by the Fifth, Sixth, and Fourteenth amendments to the United States Constitution and by article 1, sections 10 and 18(A) of the Missouri Constitution. He claims the excluded testimony was outside the purview of Chapter 552 because being suicidal is not a mental disease or defect. He also claims the excluded testimony was logically and legally relevant to prove a fact at issue in the case as it would have tended to disprove that he...