State v. Justin B. Miller , 157 Idaho 838 ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 40662
STATE OF IDAHO, )
) 2014 Opinion No. 76
Plaintiff-Respondent, )
) Filed: September 24, 2014
v. )
) Stephen W. Kenyon, Clerk
JUSTIN B. MILLER, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Benjamin R. Simpson, District Judge.
Judgment of conviction and sentences for aggravated assault and
battery, affirmed.
Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GUTIERREZ, Chief Judge
Justin B. Miller appeals from his judgment of conviction after a jury found him guilty of
aggravated assault and of battery. Specifically, he challenges several evidentiary rulings. For
the reasons that follow, we affirm.
I.
FACTS AND PROCEDURE
This case arises out of a New Year’s celebration that went awry. Several people were at
Miller’s house in Post Falls in the early hours of New Year’s Day. Testifying at trial, a female
house guest (the battery victim) recalled that she was in the kitchen when another guest asked the
battery victim if she heard screams. The battery victim proceeded to the living room and could
hear screams coming from the bedroom, which adjoined the living room. Opening a door to the
bedroom, the battery victim saw Miller standing in front of his wife, who was sitting on the edge
of the bed, and saw Miller with his hands around his wife’s neck, choking her. The battery
1
victim intervened, but she was pushed away by Miller and hit her head on the open door. Two
male guests also intervened, and the battery victim crawled out of the bedroom. The battery
victim and the wife made their way to the kitchen where the wife and the battery victim
discussed what happened.
Another female attendee (the assault victim), also testifying at trial, recalled that she was
in the living room with one of the male guests. When the male guests went into the bedroom, the
assault victim heard the wife say that Miller hit her and saw the battery victim on the floor trying
to escape the bedroom. Miller directed people to get out of his house, 1 and the assault victim
exited through a sliding door to the backyard of the house, but she left her coat and shoes in the
house. Minutes later, the assault victim decided to go back into the house to get her belongings.
As the assault victim went back in, Miller appeared with a shotgun, pointed the firearm at the
assault victim, pumped the action, and told the assault victim that he was going to shoot her.
Another house guest hollered at Miller, garnering his attention, and the assault victim grabbed
her coat and shoes and ran out the front door.
The assault victim subsequently called 911 and reported the incident. Deputies with the
Kootenai County Sheriff’s Office responded to Miller’s residence. Miller was charged by
second amended information with domestic battery against his wife, aggravated assault against
the assault victim, and misdemeanor battery against the battery victim. At trial, the State
presented testimony from deputy sheriffs who arrived on the scene, including a deputy who
spoke to the wife (the deputy); from a male house guest; from the battery victim; and from the
assault victim. The defense presented testimony from Miller and from his wife. The defense
also proffered testimony from two other house guests present for the events on New Year’s Day.
In rebuttal, the State called the deputy. The jury returned a guilty verdict on the aggravated
assault and battery charges, but the jury found Miller not guilty of the domestic battery charge.
For the aggravated assault charge, Miller was sentenced to a unified sentence of five years, with
three years determinate, and the court retained jurisdiction. 2 Miller appeals.
1
Although Miller testified that he was “frustrated,” there is little doubt from testimony of
other witnesses that Miller was angry when he directed people to “Get the f**k out of [his]
house.”
2
For the misdemeanor battery, the district court imposed a sentence of 180 days with
178 days suspended and two days’ credit for time served. Additionally, the court imposed a
2
II.
ANALYSIS
On appeal, Miller contends that the district court improperly admitted two irrelevant
statements over objection. In addition, Miller argues that the district court improperly admitted
two hearsay statements over objection. Finally, if we determine that more than one error was
committed below, but we nonetheless determine that each individual error is harmless, Miller
contends that the cumulative error doctrine applies. We review the district court’s decision to
admit evidence for an abuse of discretion. State v. Thorngren, 149 Idaho 729, 731, 240 P.3d
575, 577 (2010). When a trial court’s discretionary decision is reviewed on appeal, the appellate
court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly
perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries
of such discretion and consistently with any legal standards applicable to the specific choices
before it; and (3) whether the lower court reached its decision by an exercise of reason. State v.
Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
A. Relevancy
Miller argues that the district court improperly permitted the deputy to provide irrelevant
testimony and improperly permitted the prosecutor to cross-examine the wife with irrelevant
statements. Evidence that is relevant to a material and disputed issue concerning the crime
charged is generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008).
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” I.R.E. 401. Whether a fact is of consequence or material is determined
by its relationship to the legal theories presented by the parties. State v. Johnson, 148 Idaho 664,
671, 227 P.3d 918, 925 (2010). We review questions of relevance de novo. State v.
Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993).
1. The deputy’s testimony
The State’s first witness was the deputy. He testified that he responded to a call,
approached Miller’s residence, and made contact with the assault victim. The prosecutor then
$250 fine, placed Miller on probation for two years, and ordered Miller to not have contact with
the assault victim.
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asked the deputy to use a whiteboard and “draw the house and where you contacted [the assault
victim] for us . . . .” Presumably, the deputy used the whiteboard and continued to explain how
he contacted the assault victim:
[Deputy]: Myself and Deputy Dyre were the first ones and Deputy
Mumford were the first ones to arrive on scene. Deputy
Mumford came in from another access street on the west
side of the residence. Deputy Dyre and I came in on the
east side of the residence. We parked probably a residence
away due to officer safety, I mean threat of a gun being
used to force people out of the house.
[Defense counsel]: I object. I object. Move to strike. Hearsay.
[The Court]: Overruled. It wasn’t hearsay.
[Defense counsel]: Not relevant.
Although Miller’s defense counsel interjected “Not relevant,” the transcript does not reveal a
response by the district court, and the deputy continued to explain the contact with the assault
victim. Miller argues that the district court’s admission of the testimony was erroneous because
the testimony of where the deputies parked their vehicles was not relevant. The State contends
that there is not an adverse ruling for this Court to consider. In the alternative, the State contends
that the admission of the testimony concerning where the deputies parked was not erroneous.
We reject the State’s first argument that the relevance objection was not preserved.
Miller clearly objected on that ground, and the district court implicitly overruled the objection by
allowing the testimony to proceed.
We also disagree with the State’s contention that the testimony was relevant. Generally,
“leeway is allowed even on direct examination for proof of facts that merely fill in the
background of the narrative and give it interest, color, lifelikeness.” 1 KENNETH S. BROUN,
MCCORMICK ON EVIDENCE § 185 (6th ed. 2006); accord State v. Walker, 121 Idaho 18, 19, 822
P.2d 537, 538 (Ct. App. 1991) (“Generally, some leeway is allowed even on direct examination
for preliminary facts that do not bear directly on the legal issues, but merely provide background
for the narrative, to give it interest and context.”). In this case, however, the officer’s testimony
was not needed to enable the jury to understand how the charged offenses came about or to
provide needed background about the offenses. Rather, the officer described events that took
place after Miller’s alleged criminal conduct had ceased. Information about where the
investigating officers parked and why they parked there was entirely irrelevant. Admission of
that testimony allowed the jury to hear that the officer feared for his safety because a gun had
4
been used in the house, thereby conveying hearsay information received from the 911 call.
Although courts are sometimes permitted to admit evidence of events that are not, strictly
speaking, part of the charged criminal episode in order to give the jury a “complete story” if
exclusion of the evidence could result in jury confusion or misleading inferences, e.g., State v.
Truman, 150 Idaho 714, 721, 249 P.3d 1169, 1176 (Ct. App. 2010); State v. Blackstead, 126
Idaho 14, 18, 878 P.2d 188, 192 (Ct. App. 1994), that principle has no application here. The
officer’s testimony about his concern for officer safety was not necessary to give the jury a
complete story, and its absence would not have left any confusing gap in the narrative or resulted
in misleading inferences. Accordingly, the testimony was irrelevant.
Having determined that the district court erred by admitting the testimony concerning
where the officers parked and why they did so, we now examine whether the State has proved
beyond a reasonable doubt that the error was harmless. See State v. Perry, 150 Idaho 209, 222,
245 P.3d 961, 974 (2010) (“A defendant appealing from an objected-to, non-constitutionally-
based error shall have the duty to establish that such an error occurred, at which point the State
shall have the burden of demonstrating that the error is harmless beyond a reasonable doubt.”).
Miller alleges that the error was not harmless because the information that the officers were
concerned for their safety lent credibility to the assault victim’s testimony that a firearm was
used at the residence. The State argues that the deputy’s testimony did not make the assault
victim’s report of what happened and her testimony any more or less credible, as it simply
described the precautions used by the officers.
Here, the deputy’s statement that there was a threat of a gun being used to force people
out of the house was cumulative of what the assault victim testified to. Upon hearing the
deputy’s testimony and the assault victim’s testimony, the jury would have known that his belief
that a gun had been brandished was based solely upon information derived from the 911 call
made by the assault victim. Therefore, the deputy’s testimony logically did nothing to
corroborate the assault victim’s testimony or enhance her credibility. Further, although the
various witnesses’ testimony about Miller’s handling of the shotgun was conflicting, one of the
other guests confirmed the assault victim’s testimony by saying that Miller had pointed the gun
5
at “everyone” and ordered everyone to leave. In short, the error admitting the irrelevant
testimony was harmless. 3
2. The wife’s cross-examination
Testifying in Miller’s defense at trial, the wife claimed that the red marks on her neck
were from her baby’s fingernails and from a necklace being pulled by her baby. During cross-
examination, the prosecutor questioned the wife about her testimony as compared to statements
she had previously made. Amongst the topics covered by the prosecutor, the prosecutor
questioned the wife about statements she had made to the deputy on the morning of the incident.
The prosecutor inquired of whether the wife had told the deputy that “it was a family tradition to
go out on New Year’s and shoot their guns.” After the wife answered that she did not, the
prosecutor then asked the wife, “Is it a family tradition to go out and shoot guns on New
Year’s?” The wife answered that it was not, and Miller objected, contending that the statements
were not relevant. The court overruled Miller’s objection, and subsequently, the detective
testified in rebuttal that the wife did inform him of the family tradition.
Miller argues that the statements were not relevant. Under Idaho Rule of Evidence 607,
any party may attack the credibility of a witness. The party challenging the credibility of the
witness may examine the witness about a prior statement by the witness. I.R.E. 613(a). “To be
admissible for impeachment purposes evidence of a witness’s prior inconsistent statement must
be relevant to the witness’s trial testimony.” Perry, 150 Idaho at 219, 245 P.3d at 971
(referencing I.R.E. 401). In this case, it is apparent from the context of the questioning that the
prosecutor was attempting to elicit facts from the wife in an attempt to discredit the wife with a
prior inconsistent statement. 4 However, the statements used by the prosecutor were not relevant.
Before the prosecutor referred to the discussion between the deputy and the wife, there had not
been testimony about a family tradition. Furthermore, the witnesses at trial, including the wife,
testified that Miller grabbed a shotgun and was holding it when the assault victim was back in
3
Given our holding that the statements used by the prosecutor were not relevant, we need
not address Miller’s argument that the danger of unfair prejudice substantially outweighed the
probative value of the statements.
4
Although the wife did not testify on direct examination about the family tradition, a party
is permitted to draw out the statements on cross-examination that they wish to attack with a prior
inconsistent statement. 1 KENNETH S. BROUN, MCCORMICK ON EVIDENCE § 34 (6th ed. 2006).
6
the house. The disputed issue was whether Miller had pointed the shotgun at the assault victim
and not whether Miller had access to a shotgun. Accordingly, the court erred by overruling the
relevance objection. Under Perry, the burden is now upon the State to demonstrate that the error
is harmless beyond a reasonable doubt. Perry, 150 Idaho at 222, 245 P.3d at 974.
The State argues that the district court’s error is harmless because it did not contribute to
the jury’s verdict finding Miller guilty of aggravated assault. We agree. The wife testified on
direct examination that when the assault victim was back in the house, Miller removed a shotgun
from a closet and held it in his hands before another house guest grabbed it from him. The wife
specifically testified that Miller did not point the shotgun at the assault victim. The wife’s
testimony was consistent with testimony from Miller and from two other house guests, including
the house guest who claimed that he grabbed the gun from Miller. Accordingly, even if the
wife’s credibility concerning her testimony about the shotgun and her husband’s actions were
downplayed by the jury, there were multiple witnesses who testified consistent with her
testimony, and the jury chose to disbelieve the other witnesses’ account of the events.
Accordingly, we are persuaded beyond a reasonable doubt that the error is harmless. 5
B. Hearsay
Miller also argues that the district court erred by admitting inadmissible hearsay from the
battery victim and from the assault victim. Hearsay is defined as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” I.R.E. 801(c); State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729,
733 (Ct. App. 1994). Hearsay is inadmissible unless otherwise provided by an exception in the
Idaho Rules of Evidence or other rules of the Idaho Supreme Court. I.R.E. 802.
1. The battery victim’s statement
During the trial, the battery victim testified to her memory of the events. Relevant to this
issue, she testified to her interaction with Miller’s wife in the kitchen after the incident in the
bedroom. According to the battery victim, the wife was shaky, was crying, and had a red face.
Additionally, the battery victim testified that the wife made a statement to her:
5
Given our holding that the statements used by the prosecutor were not relevant, we need
not address Miller’s argument that the danger of unfair prejudice substantially outweighed the
probative value of the statements.
7
[The prosecutor]: How long after you witnessed her husband choking her did
she make this statement?
[The battery victim]: I would say a minute, maybe.
[The prosecutor]: And did the statement she make [sic] pertain to what had
just happened?
[The battery victim]: Yes.
[The prosecutor]: What did she tell you?
[Defense counsel]: I object, hearsay.
[The prosecutor]: Laying the grounds for an excited utterance.
[The Court]: Do you wish to respond to excited utterance?
[Defense counsel]: Sorry, your Honor?
[The Court]: He has asserted excited utterance as an exception. Do you
wish to respond?
[Defense counsel]: Yes. It has to be a foundation that was made under the--
what’s the language used--still under the influence of the --
[The Court]: Enough time to reflect.
[Defense counsel]: -- enough time to reflect on the circumstances. And there is
also the confrontation clause issue, Judge.
[The Court]: I am going to allow her to answer the question.
[The prosecutor]: What did [the wife] say there in the kitchen?
[The battery victim]: She stated he hit me. And my response to her was hit you.
He was choking you.
[Defense counsel]: I object to that as hearsay.
[The Court]: It is this witness’s statement.
[Defense counsel]: That witness’s statement is hearsay, yes.
[The Court]: This is what the witness said to [the wife], he was choking
you. That’s not hearsay. She is here and she is testifying.
[Defense counsel]: Well, she has testified as to what she said back then, Judge.
It makes it an out-of-court statement. If it is offered for the
truth, in my opinion, it makes it hearsay.
[The Court]: It is not hearsay. Overruled.
(Emphasis added.) Miller maintains that the battery victim’s testimony about what she said to
the wife--that Miller was choking the wife--was hearsay and was improperly admitted. We
agree.
Generally, a testifying witness’s testimony relaying the witness’s prior statements is
hearsay, if offered for the truth of the matter asserted in the statements. I.R.E. 801(c); see 2
KENNETH S. BROUN, MCCORMICK ON EVIDENCE § 251 (6th ed. 2006) (“[A] prior statement, even
one made by the witness, is hearsay if offered to prove the matters asserted therein.”); D. CRAIG
LEWIS, IDAHO TRIAL HANDBOOK § 19:2 (2nd ed. 2005) (“[A] testifying witness’s present
testimony relating the witness’s own past statements is hearsay.”). Under Rule 801(d)(1), a prior
8
statement by a witness who has testified and is available for cross-examination, is nonhearsay
only if:
the statement is (A) inconsistent with the declarant’s testimony and was given
under oath and subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition, or (B) consistent with declarant's testimony and is
offered to rebut an express or implied charge against declarant of recent
fabrication or improper influence or motive, or (C) one of identification of a
person made after perceiving the person.
See State v. Trevino, 132 Idaho 888, 895, 980 P.2d 552, 559 (1999) (analyzing under
Rule 801(d)(1) an attorney’s testimony relaying statements made to him by his client, who
testified at trial).
In this case, the battery victim’s testimony, relaying her own out-of-court statement, was
offered for the truth of the matter asserted in the statement and would thus fall under the
definition of hearsay. The Rule 801(d) nonhearsay categories are inapplicable, and thus the
testimony relaying the statement is hearsay. The State has not argued, either at trial or on appeal,
that the hearsay statement at issue falls within one of the hearsay exceptions identified in
I.R.E. 803 and 804. The State argues only that the challenged testimony was admissible for the
nonhearsay purpose of showing “the course of events” after the charged offenses occurred.
However, the State did not indicate at trial that the evidence was proffered for this narrow,
nonhearsay purpose, and the jury was not instructed to consider it only for such purpose.
Moreover, the State does not explain how the course of events after the criminal conduct had
concluded is relevant. Accordingly, the court erred by admitting the out-of-court statement.
We turn to the Perry analysis of whether the error was harmless. The State has the burden
of demonstrating that the error is harmless beyond a reasonable doubt. Perry, 150 Idaho at 222,
245 P.3d at 974. Although Miller acknowledges that he was acquitted of the charge against the
wife, to which the statement pertains, he maintains the error was not harmless because the error
would have affected the outcome of the aggravated assault charge. For the aggravated assault
charge, Miller argues that the statement reduced his wife’s credibility with the jury; as discussed
above, Miller’s wife testified that Miller did not point the gun at the assault victim. However,
Miller overlooks the fact that the credibility of his wife’s testimony was challenged on several
occasions during her cross-examination by the prosecutor. The prosecutor challenged the wife’s
testimony concerning the amount of alcohol she had consumed based on the wife’s statements at
9
the preliminary hearing. Next, the prosecutor impeached the wife’s testimony at the trial, in
which she testified that Miller did not hit her with the back of his hand, with testimony at the
preliminary hearing, in which she testified that Miller “backhanded me off the bed.” The
prosecutor also impeached the wife with her testimony concerning the course of events when
Miller grabbed the shotgun, using a written statement the wife made approximately two weeks
after the incident. In addition, the prosecutor challenged the wife’s testimony that the baby’s
fingernails had caused the injury to her neck, using her testimony at the preliminary hearing. In
short, the statements made by the battery victim, even if they impacted the wife’s credibility,
were not the only statements that impacted the wife’s credibility. Accordingly, we are persuaded
beyond a reasonable doubt that the error in admitting the battery victim’s statements was
harmless.
2. The assault victim’s testimony
During the trial, the assault victim testified to the events at the house, including Miller
pointing the firearm at her. Relevant to this issue, she also discussed the 911 call she made:
[The prosecutor]: How long do you think your conversation was with the 911
operator?
[The assault victim]: I would say approximately five minutes.
[The prosecutor]: Did you tell the 911 operator what had just happened to
you?
[Defense counsel]: I object, your Honor, as to relevance and hearsay.
[The Court]: I am going to allow it. It is not hearsay. It is marginally
relevant.
[The assault victim]: Yes, I did.
[The prosecutor]: Did you indicate to the 911 operator that Mr. Miller pointed
a shotgun at you?
[The assault victim]: Yes.
[Defense counsel]: That does call for hearsay, the content of what she said.
[The Court]: Overruled. The witness is present under oath and subject to
cross-examination.
[The prosecutor]: Go ahead and answer.
[The assault victim]: Yes, I did.
Miller contends that the court erred by admitting the assault victim’s statement
acknowledging that she told the 911 operator that Miller pointed the firearm at her. Miller
argues this statement was only offered for the truth of the matter asserted in the statement. The
State maintains that the assault victim’s statements were offered to establish the course of events
after the assault.
10
As with the battery victim’s statements, the assault victim’s testimony contains hearsay
statements, specifically the statements concerning what the assault victim told the 911 operator.
I.R.E. 801(c); see 2 KENNETH S. BROUN, MCCORMICK ON EVIDENCE § 251 (6th ed. 2006) (“[A]
prior statement, even one made by the witness, is hearsay if offered to prove the matters asserted
therein.”); D. CRAIG LEWIS, IDAHO TRIAL HANDBOOK § 19:2 (2nd ed. 2005) (“[A] testifying
witness’s present testimony relating the witness’s own past statements is hearsay.”). The
statements were offered for the truth of the matter asserted, and none of the Rule 801(d)
nonhearsay categories apply. The State has not argued, either at trial or on appeal, that the
hearsay statements at issue fall within one of the hearsay exceptions identified in I.R.E. 803 and
804. The State argues only that the challenged testimony was admissible for the nonhearsay
purpose of showing “the course of events” after the charged offenses occurred. However, the
State did not indicate at trial that the evidence was proffered for this narrow, nonhearsay
purpose, and the jury was not instructed to consider it only for such purpose. Moreover, the
State does not explain how the course of events after the criminal conduct had concluded is
relevant. Accordingly, the court erred by admitting the out-of-court statements.
We turn to the Perry analysis of whether the error was harmless. The State has the burden
of demonstrating that the error is harmless beyond a reasonable doubt. Perry, 150 Idaho at 222,
245 P.3d at 974. Prior to her testimony about the 911 call, the assault victim explained the
events leading up to her exiting through a backdoor without her coat and shoes. She then
testified that she went back into the house and that Miller approached her with a shotgun and
pointed the firearm at the assault victim, pumped the action, and told the assault victim that he
was going to shoot her. According to her, another house guest garnered Miller’s attention, and
the assault victim grabbed her coat and shoes and ran out the door. There was no objection to
this testimony. The assault victim’s acknowledgement that she told the 911 operator that Miller
pointed a shotgun at her was “simply cumulative to evidence already introduced without
objection.” State v. Crawford, 110 Idaho 577, 581, 716 P.2d 1349, 1353 (Ct. App. 1986)
(explaining that a doctor’s testimony was cumulative because other witnesses had already
testified as to Crawford’s wife’s incriminating statements). Under these circumstances, we hold
that any error in allowing the assault victim’s testimony was harmless and does not justify
reversal of the conviction. Id.
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C. Cumulative Error
Under the doctrine of cumulative error, a series of errors, harmless in and of themselves,
may in the aggregate show the absence of a fair trial. State v. Adamcik, 152 Idaho 445, 483, 272
P.3d 417, 455 (2012). In this case, Miller established four errors, and we concluded that each
error was harmless. “The presence of errors, however, does not by itself require the reversal of a
conviction, since under due process a defendant is entitled to a fair trial, not an error-free trial.”
State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 183 (1998) (citing Bruton v. United States,
391 U.S. 123, 135 (1968)). As to the statements made by the deputy, they did not corroborate
the assault victim’s testimony about what happened inside the household; other household guests
testified Miller grabbed the shotgun, with one guest noting that Miller pointed the firearm at
everyone. The wife’s testimony relating to the alleged aggravated assault was consistent with
the testimony of other witnesses at trial, yet the jury ultimately did not accept their testimony. In
addition, the wife’s credibility was challenged on multiple occasions during cross-examination,
as discussed above. As to the error involving the statements made by the assault victim on the
911 call, the assault victim had already provided unchallenged testimony about the shotgun
incident. In sum, the errors, when viewed in relation to the totality of the testimony at trial, did
not deprive Miller of a fair trial.
III.
CONCLUSION
The court erred in admitting the testimony concerning where the deputy parked his car,
the family tradition of shooting, what the wife and battery victim discussed in the kitchen, and
the statements made during the 911 call. However, we are persuaded that the errors were
harmless. Therefore, Miller’s judgment of conviction is affirmed.
Judge LANSING and Judge MELANSON, CONCUR.
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