State v. Miller, s. WD
| Decision Date | 01 October 1996 |
| Docket Number | Nos. WD,s. WD |
| Citation | 935 S.W.2d 618 |
| Parties | STATE of Missouri, Respondent, v. Clifford MILLER, Appellant. 50202, WD 51692. |
| Court | Missouri Court of Appeals |
Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant.
Philip M. Koppe, Assistant Attorney Gen., Kansas City, for respondent.
Before HANNA, P.J., and SMART and EDWIN H. SMITH, JJ.
Clifford Miller appeals his conviction, after jury trial, for forcible sodomy, § 566.060, RSMo 1994 1, assault in the second degree, § 565.060, assault in the first degree, § 565.050, kidnapping, § 565.110, and four counts of armed criminal action, § 571.015. Miller was sentenced as a class X offender to consecutive terms of life imprisonment for sodomy and first degree assault charges, fifteen years for the second degree assault charge, twenty-five years for the kidnapping charge, and fifty years for each of the armed criminal action charges. Miller also appeals from the motion court's action in overruling his Rule 29.15 motion for post-conviction relief. In his direct appeal, Miller claims that the trial court abused its discretion in excluding the testimony of defense witness Jimmy Briggs because of defense counsel's late endorsement. Miller claims that Briggs' testimony was crucial to Miller's alibi defense because Briggs was the only unbiased witness that could establish Miller's whereabouts at the time the crimes were committed. Miller, in his appeal of the motion court's denial of his Rule 29.15 motion, claims that the motion court clearly erred because defense counsel was ineffective in his late endorsement of Briggs as an alibi witness. The judgment of the trial court is affirmed. The judgment of the motion court is affirmed.
On June 5, 1992, Angela Hunter left Jimmie's Steakhouse after it closed. Ms. Hunter estimated that she left the bar at approximately 3:20 a.m., but it could have been earlier. As she went out to her car, a man driving a dark Camaro or Trans Am pulled up beside her. The man pointed a gun at her head and told her to get in the car. As she struggled with him, the gun went off and the bullet struck Ms. Hunter in her arm. Ms. Hunter noticed that her attacker was Ms. Hunter was driven to a house at 2520 Olive. At the house, her attacker ordered her to perform oral sex upon him, keeping the gun pointed at her head. The man told Ms. Hunter to go up the stairs and when they reached the top of the porch he once again forced her to perform oral sex. He then hit her in the head with his gun and left her, dazed and drifting in and out of consciousness. After falling off the porch, Ms. Hunter made her way down the street, naked and bloody, attempting to get help. Eventually, she knocked on the door at 2453 Olive and the person at that house called the police. Ms. Hunter was taken to Truman Medical Center where she remained for two and one-half months. In addition to the gunshot wound in her arm, Ms. Hunter also had a fractured skull, a broken jaw and smashed cheekbones. Police found a blood trail leading to 2520 Olive. No one was apprehended for the crime at that time. Police found a large amount of blood and some woman's clothing, later identified by Ms. Hunter as belonging to her, at the house at 2520 Olive.
wearing a white shirt with silhouettes of bears kissing and green army fatigue pants. The man had a "jerry curl" and a gold tooth.
Almost a year after her ordeal, on May 21, 1993, Ms. Hunter was persuaded by a friend to go out to the El Capitan. While Ms. Hunter was standing at the bar, a man grabbed her and began talking to her. He said that he had seen Ms. Hunter at Jimmie's. Ms. Hunter recognized the man as her attacker. She asked him what kind of car he had been driving the previous summer and he told her that he had been driving a gray or blue sports car. He also told her that he lived at 25th and Olive. The police were called and spoke briefly to the man who identified himself as Clifford Miller, the appellant in this case. Mr. Miller gave his address as 2454 Olive. Miller was subsequently arrested and tried for the crimes committed against Ms. Hunter.
On June 10, 1993, Ms. Hunter identified Miller as her attacker from a photo array. When questioned by the police, Miller claimed that he had never owned a Camaro. However, investigation showed that two weeks before Ms. Hunter was attacked, Miller was involved in a car accident. He was driving a 1979 Camaro. Confronted with the incident, Miller admitted that he owned the Camaro.
At trial, Miller presented a defense based upon misidentification and alibi. Joseph Lee Willoughby testified that he was with Miller and a group of friends at the Deluxe, a restaurant located at 28th and Brooklyn. He stated that the group left between 2:30 a.m. and 3:00 a.m. and that he knew Miller went home because he had to pass Miller's house in order for him to get to his home. Willoughby stated that Miller was wearing his hair in cornrows and not in a jerry curl on the night in question. He also stated that Miller was driving a brown Impala that evening. Willoughby testified that he and Miller had been friends for twenty-three or twenty-four years but that he had not known that Miller had been arrested and charged with these offenses until the Sunday before trial.
Anthony Wright also testified that Miller was with the group until 2:30 a.m. or 3:00 a.m. on the morning of June 5, 1992. Wright claimed that Miller was wearing his hair in cornrows with beads on the night in question. He also claimed not to have known that Miller had been arrested or charged in this case until the week before the trial.
Velma Chapman, Miller's girlfriend and the mother of his three children, also testified on Miller's behalf. She testified that Miller was wearing his hair in braids and beads at the time in question. She claimed that Miller returned home at about 3:00 a.m. and that she asked him if he had been at Jimmie's because she had heard about a disturbance over the police scanner. He told her that he had not been there. She testified that the two of them went to bed and fifteen to twenty minutes later heard a disturbance reported on the scanner, that a woman had been raped or robbed at 24th and Olive, near where Miller's grandmother lived. She could not recall, however, what she heard on the scanner on any other night she was questioned about. During cross-examination, Chapman admitted that she had earlier told investigators that she did not know what Miller did on the night in question.
The defense attempted to call Jimmy Briggs to the stand. No witness by that name had been disclosed by the defense. The prosecution objected. Defense counsel informed the court that Miller had told him about Briggs only the night before and that he had not spoken to Briggs until that morning. The prosecution was allowed to question Briggs, outside the hearing of the jury, in connection with the motion to exclude Briggs' testimony:
Q. Who came to you to talk to you about a defense in this case?
A. Mr. Miller.
Q. And when was that?
A. He told me he needed me to testify because I told him I didn't want to testify.
Q. When did he tell you that he needed you to testify?
A. It's been a week ago.
* * *
Q. --he came and he said he needed you to testify? Did he tell you what he needed you to testify about?
A. Well, the night of the 5th of '92.
Q. The night of the 5th?
A. Well, of a morning. It was 3:00 o'clock in the morning.
Q. And had you remembered that date?
A. Yes, I did.
Q. Had you spoken to him previously about this date?
A. No.
Q. So this was the first time that you talked to him, a week ago, about that night?
A. Uh-huh.
Q. And how is it, sir, that you're able to remember that night?
A. Because my wife and I, we had a disagreement and she left the 5th and I've never seen her again.
Q. You've not seen your wife since the 5th of June, the early morning hours the 5th of June?
A. Yes.
Q. And when Mr. Miller came to talk to you a week ago you were able to tell him that you remembered that night because your wife left you?
A. Yes. I remember that night because Friday was a working day for me.
Q. Friday was a working day?
A. Yeah, I was up getting dressed for work.
Q. Up getting dressed for work, what time?
A. Well, after I went back in the house I guess I got dressed about 4:00.
Q. About 4:00 o'clock?
A. Uh-huh.
Q. Did you see Clifford at 4:00?
A. No, I didn't.
Q. When did you see Clifford?
A. I saw him at 3:00 o'clock when he was standing in his house.
Q. You saw Clifford at 3:00 o'clock?
A. Yes, I did.
Q. Did you see what--did you see him pull up to come home that night?
A. No, I didn't.
Q. You didn't see him come home that night? You didn't see what kind of car he was driving?
A. No.
Q. Did you see him after 3:00 o'clock standing up in his house?
A. No. I was in the house.
Q. So on that date you saw him for a moment standing at his house at 3:00 o'clock.?
A. Yes.
Q. Do you remember what he was wearing?
A. No, I don't.
* * *
Q. And you got up at 4:00 and went in and got dressed?
A. Yeah.
Q. At 3:00 o'clock after you saw Clifford Miller go in the house did you sit on your porch until 4:00?
A. No. I said I got up and went in the house and got dressed at 4:00. I didn't say I'd set there until 4:00.
Q. Okay, what did you do between 3:00 and 4:00?
A. I drunk coffee.
Q. Drank coffee?
A. Yes, I did.
Q. Where?
A. At my house.
Q. Inside?
A. Yes.
Q. Inside the house?
A. Yeah.
Q. So if I understand your testimony, you saw Clifford Miller at 3:00 o'clock, then you drank some coffee inside your house, and at 4:00 o'clock got ready to go to work?
A. I said I saw Mr. Miller at 3:00 o'clock and he went in his house and I set there until about 3:30 and I went in the house and got dressed at 4:00.
Q....
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