Petition for Writ of Certiorari — Miller v. Kansas

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1 FILED |}

2 JUL 5 1988

JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

No.

HUGH MILLER,

Petitioner,

Vs.

STATE OF KANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

COURT OF APPEALS OF KANSAS

LESLIE F. HULNICK

KIEHL RATHBUN

Attorneys at Law

924 North Main

Wichita, Kansas 67203

316-265-3391

Attorneys for

Petitioner

QUESTIONS PRESENTED FOR REVIEW

Did the trial Court's denial of

Defendant's Motion for Mistrial deny him due

process of law?

Did the prosecution, by stating its

belief that the Defendant would offer perjured

testimony cause the jury to infer the existence

of perjury from the absence of testimony?

INDEX

OPINION BELOW

JURISDICTION

QUESTION PRESENTED FOR REVIEW

my NY N F

CONSTIUTIONAL PROVISIONS,

STATUS AND RULES

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE WRIT 4

CONCLUSION 11

AFFIDAVIT OF SERVICE 12

APPENDIX A: Opinion of the Kansas State

Supreme Court

APPENDIX B: Opinion of the Kansas Court

of Appeals

APPENDIX C: Journal Entry of Judgment

APPENDIX D: K.S.A. 21-3414

TABLE OF CASES

Frazier v. Cupp, 394 U.S. 731, 22 L.Ed.

2d 684, 89 S.Ct. 1420 (1969) 11

Hendricks v. Phillips Petroleum Company,

203 Kan. 140 9

State v. Culbertson, 214 Kan. 884 (1974) 8

State v. Folkerts, 229 Kan. 608 7

State v. Griffin, 3 Kan. App. 2d, 433 4

State v. Hamilton, 222 Kan. 341 (1977) 9

State v. Hanks, 236 Kan. 524 (1985) 8

State v. Jacques, 2 Kan. App. 2d, 277 4

fiti

State v. Magee, 201 Kan. 566 8

State v. Mitchell, 3 Kan. App. 2d, 635 4

(1975)

State v. Robinson, 219 Kan. 218 (1976) 8

State v. Wilkins, 220 Kan. 735 (1976) 6

Vilander v. Hawkinson, 183 Kan. 214 9

STATUTES

Kansas Statutes Annotated 22-3423(1)(c)

IN THE SUPREME COURT

OF THE UNITED STATES

No.

HUGH MILLER,

Petitioner,

Vs.

STATE OF KANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

The Petitioner, Hugh E. “Bo” Miller,

respectfully prays that a writ of certiorari

issue to review the judgment of the Court of

Appeals of the State of Kansas filed March 10,

1988, Petition for Review denied in the Supreme

Court of the State of Kansas May 4, 1988.

OPINION BELOW

On March 10, 1988 the Court of Appeals

of the State of Kansas entered its opinion

confirming the conviction of Petitioner for

aggravated battery in violation of K.S.A.

21-3414. A copy of this opinion appears in

the appendix hereto marked Appendix B. Petition

for Review in the Supreme Court of the State of

Kansas was perfected by Petitioner, which

Petition for Review was denied on May 4, 1988.

A copy of the denial is included herein as

Appendix A.

JURISDICTION

28 U.S.C. Subsection 2101(d).

CONSTITUTIONAL PROVISIONS, STATUTES

AND RUGLES

K.S.A. 21-3414.

STATEMENT OF FACTS

On the evening of November 23,

1984 the Appellant, Bo Miller, was leaving

a tavern and noticed a loud argument going

on in the street. He heard a member of

that argument say to another, "I will shoot

you too, Punk." At about that time a shot

was fired in his direction. (Tr. 129 &

130).

At that point he ducked behind

his car (Tr. 130) and pulled his shotgun

out of the back seat (Tr. 131) and returned

fire. He was afraid for his life (Tr.

131). He then got in his car (Tr. 132) and

left to find a phone to call the police.

Witnesses testified that they

heard at least two shots (Tr. 96, 58, 72,

78, 90). Officers found only one spent

shotgun shell at the scene, and after

diligent search in the

street, yards and sides of houses, failed

to find any other shell or shell casings

(TR. 20).

At trial, in the State's opening

statement, the State alleged that someone

named Ralph was asked to lie for the

Appellant (Tr. 6,7). The defense then

moved for a mistrial (Tr. 7) on the basis

of prosecutorial misconduct. Said motion

was overruled. There was never any

evidence introduced at trial concerning Mr.

Ralph, nor what his statement might have

been, and he did not testify.

REASONS FOR GRANTING THE WRIT

The decision of the Court of

Appeals for the State of Kansas denies

Similarily situated defendants a fair

trial, as well as depriving Petitioner of a

fair trial.

Under Kansas law, a trial court's

ruling as to whether a mistrial should be

declared will not be overturned in the

absence of abuse and discretion; State v.

Mitchell, 3 Kan. App. 2d, 635 (1975); State

v. Griffin, 3 Kan. App. 2d, 433; State v.

Jacques, 2 Kan. App. 2d, 277. Kansas

Statutes Annotated 22-3423(1)(c) authorizes

the Court to declare a mistrial when

"Prejudicial conduct ... makes it

impossible to proceed with the trial

without injustice to either the Defendant

or the Prosecution". In this case, the

Prosecution, during opening statements,

told the jury that a certain Mr. Ralph

threatened a witness, a Mr. Marshall, with

unspecified dire consequences should Mr.

Marshall testify (Tr. 6). The Prosecutor

also told the court that "Mr. Ralph was

going to get up and lie on behalf of the

Defendant Miller". (Tr. 7).

This presented the Defense with a

dilemma. The Defendant could either call a

witness which the jury had already been

told not to believe, or they could forego

evidence which, in view of the Prosecutor's

statements, we can assume was favorable to

the Defendant.

As it happened, the State

presented no evidence whatsoever to

substantiate statements of witness

intimidation or perjury. The

prejudice to the Defendant here is

obvious. The jury is led to believe

that the Defendant and persons acting

on his behalf will intimidate

witnesses and lie, even though there

is no admissible evidence from which

they may draw that conclusion.

Judicial discretion is abused

only where no reasonable man would take the

view adopted by the trial court. If

reasonable men could differ as to the

propriety of the action taken, then it

cannot be said that the trial court abused

discretion. State v. Wilkins, 220 Kan. 735

(1976). The Court asked the State how

evidence of intimidation and perjury was

admissible in one form or another at least

six times. The final straight answer from

Mr. Skinner, on behalf of the State, was "I

don't think I can show that, Judge" (Tr.

9). So, notwithstanding obvious prejudice

to the Defendant, a finding that evidence

which would have substantiated the State's

statements would be inadmissible, the trial

court still overruled the Defendant's

motion for mistrial. The Defendant fails

to see how any reasonable man could take

the view adopted by the trial court.

In State v. Folkerts, 229 Kan.

608, there had been evidence that the

Defendant had falsified his trucker's log

book. During closing arguments the State

sought, improperly, to impeach the

Defendant's character saying "... If a

person is to lie about something as

insignificant as a log book ...". That

comment was characterized, in the court's

opinion, as clearly inappropriate and

constituting error. The State's counsel

was excused as being inexperienced and

over-zealous. The same cannot be said of

Mr. Skinner. While his zeal may be

appropriate, he is certainly not

inexperienced. He is a capable,

veteran prosecutor.

Further, the statements

complained of in Folkerts were in closing

arguments, as were those in State v. Hanks,

236 Kan. 524 (1985); State v. McGee, 201

Kan. 566; and State v. Robinson, 219 Kan.

218 (1976); where the Court ruled that the

Prosecution is entitled to considerable

latitude in closing argument and no

prejudicial error exists if the statements

complained of were provoked. In this case,

the statements the Appellant complains of

were in opening, not closing, had no basis

in the evidence, and could not have been

provoked because the State always goes

first.

State v. Culbertson, 214 Kan. 884

(1974) states:

“A Mistrial results when,

before trial is completed, the

"

trial court concludes there is

some error or irregularity that

prevents a proper judgment being

rendered."

Vilander v. Hawkinson, 183 Kan. 214, Hendricks

v. Phillips Petroleum Company, 203 Kan. 140. In

this case, the Defense relied on the rules of

self-defense (Tr. 145). The essential question

for the jury to decide then was whom to believe.

They were precluded from the outset from dcing

so by the State's prejudicial statements,

telling them that the Defense was trying to

intimidate witnesses and would present perjured

testimony. In Jacques, supra, citing, State v.

Hamilton, 222 Kan. 341 (1977) the Court said:

"Where the evidence of guilt

is of such direct and over-

whelming nature that it can

be said that the misconduct of

counsel

could not have affected the

-9-

results of the trial,

such misconduct is harmless

error".

In this case, the material actions of

all persons concerned are not in dispute; the

only question is the reasonableness of the

Appellant's belief that deadly force is

necessary. We submit that the Prosecutor's

misconduct not only affected the outcome of the

trial, but caused the Defense to change it's

trial tactics, thereby weakening it's position.

By telling the jury in opening

statement that the Defendant intended to

produce perjured testimony the jury's

impartial consideration of the Defendant's

case was tainted beyond all hope of cure.

If the Defendant presented witnesses the

jury would have been told that the

witnesses were lying. When the Defendant

elected to present no testimony or

evidence, resting upon his Fifth Amendment

Rights, the jury could only assume that the

-10-

ee RRERRERERRRRRE

reason he was presenting no witnesses was

that the State had learned that the

witnesses would lie. The prosecutor's

remarks were so prejudicial that a finding

of prejudicial error is unavoidable.

Sooner wv. fee, 298 9.5. 731, 22 L.Ed.2a

684, 89 S.Ct. 1420 (1969).

CONCLUSION

Based on the foregoing arguments,

Petitioner requests that this Court grant a

-_ ---- —-

—

review.

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IN THE SUPREME COURT

OF THE UNITED STATES

No.

HUGH E. MILLER,

Petitioner,

vs.

STATE OF KANSAS,

Respondent.

AFFIDAVIT OF SERVICE

Leslie F. Hulnick, being first

duly sworn, deposes and states:

That in accordance with Rule 28,

Supreme Court Rules, I had placed in the United

States Mail, postage-paid, copies of:

1. Original Petition for Writ of

Certiorari to the United States Supreme Court;

2. Affidavit of Service; prior to

12:00 p.m. on the 5th day of July, 1988, to:

40 copies to:

Clerk, Reporter of Decisions,

Marshal and Librarian

1 First Street, N.E.

Washington, D.C. 20543

3 copies each to:

Clark Owen

District Attorney

Sedgwick County Courthouse

535 N. Main

Wichita, Kansas 67203

Robert T. Stephan

Kansas Attorney General

301 W. 10th

Topeka, Kansas 66612

1 copy to:

Hugh E. Miller

1725 North Waco

Wichita, Kansas 67203

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x. _ a Ca

LESLIE F.

HULNICK

SUBSCRIBED AND SWORN TO before me this

3rd day of August, 198

OTARY PUBLIC

i

My appointment expires: (8/27/88

DANIELA G. YARBERRY

NOTARY PUBLIC

—He— STATE OF KANSAS

MY APPT. ExPIRES

NO.

IN THE SUPREME COURT OF THE UNITED STATES

HUGH MILLER,

Plaintiff-Petitioner,

vs.

THE STATE OF KANSAS,

Defendant-Respondent.

CERTIFICATE OF SERVICE

COMES NOW Leslie F. Hulnick and

certifies that three copies of the corrected

Petition for Certiorari were placed in the

United States Mail, postage-paid, addressed as

follows:

Clark Owen

District Attorney

Sedgwick County Courthouse

535 N. Main

Wichita, Kansas 67203

Robert T. Stephan

Kansas Attorney General

301 W. 10th

Topeka, Kansas 66612

On this 5 day of August, 1988. ’

———— —. ; ‘

———— i, a ”

Ns LESLIE F. HULNICK

SUBSCRIBED AND SWORN TO before me this

4 day of jing 1988.

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APPENDEX A

IN THE SUPREME COURT OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

Vv. Case No. 87-60738-A

HUGH "BO" MILLER, JR.

Appellant.

eee eee eee ee eee”

You are hereby notified of the following

action taken in the above entitled case:

Petition for Review.

Denied.

Yours very truly,

LEWIS C. CARTER

Clerk, Supreme Court

DATE: May 4, 1988

APPENDEX B

NOT DESIGNATED FOR PUBLICATION

NO. 60,738

IN THE COURT OF APPEALS OF

THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

V

HUGH E. "BO" MILLER, JR.,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court;

PAUL BUCHANAN, Judge. Opinion filed March 10,

1988. Affirmed.

Kiehl Rathbun, of Wichita, for

the Appellant.

Debra L. Barnett, assistant

district attorney, Clark V. Owens, district

attorney, and Robert T. Stephan, attorney

general, for the appellee.

eer

‘

i

Before ELLIOTT, P.J., DAVIS and

LARSON, JJ.

Per Curiam: Hugh E. "Bo" Miller,

Jr., appeals his conviction of aggravated

battery. K.S.A. 21-3414.

On November 23, 1984, at about

10:30 p.m., Thomas Marshall went to visit

his two children, who were living with

their mother in the area of 29th Street and

Park Place, Wichita, Kansas.

Marshall had been drinking and

had two more drinks after he arrived at his

ex-wife's house. Marshall began to argue

with his ex-wife's boyfriend, Gary

Williamson, and the two continued to argue

in the front yard. Marshall said he was

going to get a gun and shoot Williamson.

Marshall got into his car, and

Williamson broke his windshield with a

rock. Marshall drove around the block, got

out of his car, and yelled for Williamson

to come back outside.

Velma Roland, a next-door

neighbor, heard the argument and decided to

go to another neighbor's house to call the

police. A man, later identified as the

defendant, Hugh "Bo" Miller, Jr., came out

of a nearby tavern and asked Roland what

was going on. Roland explained the problem

to Miller, who told Roland not to call the

police and said he would take care of the

Situation. Roland entered the house and

called the police. She then heard two gunshots.

Miller fired one shot in the air

and instructed everyone to leave the area.

Williamson ran toward the house, leaving

Marshall near his car. Mi”~‘er pointed the gun

at Marshall and told him that he was

going to blow his head off. Marshall, who

was reaching for his car door, turned

around and raised both of his arms into the

air but told Miller to go ahead and shoot.

Miller shot Marshall in the neck,

resulting in damage to his vocal cords and

arms.

Miller drove off in his car and

was subsequently apprehended by the Wichita

Police Department outside the Side Track

Club. Miller told Officer Chrisman he shot

a man in self-defense in the area of 29th

and Park Place.

Miller told the officer the man

had driven by him and a friend as they were

leaving their vehicle to enter the tavern

and fired three shots at them. Miller told

the police officer he reached into his car,

grabbed his loaded shotgun, and fired it

one time at the man.

A complaint charging Miller with

one count of aggravated battery was filed.

He pled not guilty and the jury returned a

verdict of guilty. Miller was sentenced

ten to forty years under the Habitual

Criminal Act. The sentence was later

modified to five to twenty years.

Miller contends the following

remark made by the prosecutor during the

opening statement in his jury trial was so

prejudicial as to deny him a fair trial:

"The evidence is going to

show that after this case

was filed Mr. Marshall caused

or [was] told by a gentleman

by the name of Mr. Ralph that

if he testified he was going

to have something bad happen

to him and also told by Mr.

Ralph. **. as

Interrupting the prosecutor, the

defense counsel objected to the remark, and

the judge ordered the jury to leave the

courtroom. The prosecutor, out of the

hearing of the jury, continued his

statement “[t)hat Mr. Ralph was going to

get up and lie on behalf of the Defendant

Miller." Defense counsel moved for a

mistrial on the grounds anything that

happened between Marshall and Ralph

subsequent to the case being filed was

immaterial and the jury was prejudiced.

The prosecutor argued that evidence a

witness had threatened a victim is

admissible.

The Court asked the prosecutor

how it was admissible evidence if someone

independently threatened a witness and

whether the prosecutor had evidence that

Miller was involved. When the prosecutor

said he couldn't show the defendant's

involvement, the court stated such evidence

would not be admissible.

The court, however, did not order

a mistrial, but admonished the jury upon

its return to ignore the statements made by

the prosecution about any conversation

between Marshall and a person by the name

of Ralph.

There was never any evidence

introduced at trial concerning Ralph, and

he did not testify.

Miller contends the jury was led

to believe he or persons acting on his

behalf would intimidate witnesses and lie,

even though there was no admissible

evidence from which they might draw that

BEEERERERERRERESSEE

——————————————————— ——C

conclusion. Miller contends he was

prejudiced in his defense because his

theory at trial was that he acted in

self-defense and such defense required his

testimony to be believed.

The Kansas Supreme Court has held

the prosecution is entitled to reasonable

latitude in its opening statement.

"Proof which the prosecuting

attorney anticipates in the trial

of a case frequently fails to

come up to expectations, and so

the tendency is to permit a

prosecuting attorney a reasonable

latitude in stating to the jury

the facts he proposes to prove.

Where no substantial prejudice

results, and there is nothing to

show that the prosecuting

attorney acted in bad faith,

EERE ERE REREEREER RSE Eee

v. Welsh,

appellate courts usually refuse

- « « because of a reference by

the prosecuting attorney to

matters which he subsequently

made no attempt to prove, or for

one reason or another was unable

to prove. {Citations omitted. }

"Under the foregoing rule,

Gisposition of an appellate

claim on this point turns on

the degree of prejudice resulting

from the unsupported remarks of

the prosecuting attorney." State

v. Campbell, 210 Kan. 265, 279,

500 P.2d 21 (1972).

The Court in Campbell cited State

nee een. 379, 26 P.2d 592

(1933), where the prosecuting attorney in

his opening statement referred to the

promises of material reward by the

defendant to induce certain witnesses not

to testify against him. Defendant had

further threatened, the prosecuting

attorney said, if he was arrested, to

defeat the sheriff for reelection. In

presenting the State's case, the

prosecuting attorney did not present

evidence to prove the assertions made in

his opening statement. The trial court

instructed the jury to confine its

deliberations to the evidence and the

county attorney was not deemed guilty of

misconduct sufficient to justify a

mistrial.

The trial court in this case

specifically instructed the jury as

follows:

"Statements, arguments, and

remarks of counsel are intented

to help you in understanding the

evidence and in applying the law,

but they are not the evidence.

You should disregard any such

utterance that has no basis in

the evidence."

If a degree of prejudice does

exist, it is slight. See State v.

Folkerts, 229 Kan. 608, 629 P.2d 172 cert.

denied 454 U.S. 1125 (1981).

In view of the overwhelming

evidence against Miller, we find and hold

the prosecutor's comment was harmless

error. K.S.A. 60-2105. It was not an

abuse of discretion for the trial court to

deny Miller's motion for a mistrial.

In addition, the jury was

properly instructed to ignore the

prosecutor's statement.

Affirmed.

“a d \ : .

—

APPENDIX C

IN THE EIGHTEENTH JUDICIAL DISTRICT

DISTRICT COURT, SEDGWICK COUNTY, KANSAS

CRIMINAL DEPARTMENT

THE STATE OF KANSAS,

Plaintiff,

vs. Case No. 84CR1866

HUGH "BO" MILLER, JR.,

Defendant.

JOURNAL ENTRY

On this 15th day of April, 1985, this

case comes on for trial, the defendant having

been bound over for arraignment by the Honorable

Owen Ballinger, Position B of the Eighteenth

Judicial District Court, on the Information

charging the defendant with Aggravated Battery,

contrary to K.S.A. 21-3414. The State of Kansas

appears by its attorney, Roger C. Skinner,

Assistant District Attorney. The defendant

appears in person and by his attorney, Lyle

Britt.

Thereupon, a Jury is duly impaneled

and sworn and evidence is presented from court

day to court day.

The following witnesses were sworn and

testified:

R.D. Voigt, Sedgwick County, Kansas;

P. Cunningham, Sedgwick County, Kansas;

Thomas Marshall, Sedgwick County, Kansas;

Fred Baldwin, Sedgwick County, Kansas;

Tommy Sanders, Sedgwick County, Kansas;

Mary Valma Roland, Sedgwick County, Kansas;

Barbara Marshall, Sedgwick County, Kansas;

R.L. Chrisman, Sedgwick County, Kansas;

Hugh E. “Bo” Miller, Sedgwick County,

Kansas.

Thereafter, on the 16th day of April, 1985,

the Jury after having received the evidence,

instructions of the Court, and the arguments of

counsel and having duly deliberated, returned

the following verdict in open court:

"We, the Jury, impaneled and sworn in the

above entitled case, do upon our oath find

the defendant guilty as charged."

Date of this verdict April 16, 1985.

/s/Eugene E. Peters

Foreman.

Thereupon, the Court accepted the verdict,

excused the Jury, and continues this case for

sentencing and/or motion for new trial.

Thereafter, on the llth day of June, 1985,

all parties appear as aforesaid. The

defendant's motion for new trial was heard by

the Court, who, after examining the record,

hearing the statements of counsel and being

fully advised in the premises, denies said

motion.

The Court moved for judgment of sentence

herein under the Habitual Criminal Act, in

accordance with K.S.A. 21-4504 (1)(a)(b), by

showing to the Court that the defendant herein,

Hugh E. "Bo" Miller, Jr., has been previously

convicted of the felony of 2nd Degree Burglary

and Larceny in Sedgwick County District Court in

1958, which motion was by the Court sustained.

The Court inguires of the defendant if he

has any legal cause to show why judgment of

sentence should not be pronounced against him;

.

the defendant failed to show any such cause and

none appearing, there being none, the court then

proceeds to pronounce judgment of sentence

against the defendant.

IT IS THE SENTENCE OF THIS COURT AND IT IS

HEREBY CONSIDERED, ORDERED, ADJUDGED AND DECREED

that the defendant is hereby committed to the

custody of the Secretary of Corrections for

imprisonment for a period of not less than ten

(10) nor more than forty (40) years on the

charge of Aggravated Battery, contrary to K.S.A.

21-3414 and in accordance with K.S.A. 21-4501(c)

and 21-4504(1)(a)(b). Defendant shall pay the

costs of this action, including witness fees to

the Clerk of this Court.

IT IS FURTHER ORDERED that the Clerk of

this Court deliver two (2) certified copies of

this judgment and commitment to the Sheriff of

Sedgwick County, Kansas, or one of his duly

authorized deputies. It is further ordered that

such certified copies serve as the commitment of

the defendant and that said Sheriff or

authorized deputy transport the defendant to the

custody of the Secretary of Corrections for

imprisonment, and make due return thereof.

The Court further advised the defendant of

his right to appeal to the Appellate Courts of

the State of Kansas and sets Appeal Bond in the

amount of $10,000.00..

IT IS FURTHER ORDERED that for the purpose

of computing defendant's sentence, his parole

eligibility and conditional release dates

thereunder, that such sentence shall be computed

from a date to be determined when the defendant

is removed from his appeal bond and his

conviction is affirmed.

IT IS SO ORDERED.

/S/ PAUL BUCHANAN,

JUDGE, Sedgwick County,

Kansas

APPROVED BY:

/S/ROGER C. SKINNER

ASSISTANT DISTRICT ATTORNEY

/S/ LYLE BRITT

ATTORNEY FOR DEFENDANT

ZEERELELEREEEEEE

APPENDIX D

KANSAS STATUTES ANNOTATED 21-3414. Aggravated

Battery. Aggravated battery is the unlawful

touching or application of force to the person

of another with intent to injure that person or

antoher and which either:

(a) Inflicts great bodily harm upon him; or

(b) Causes any disfigurement or

dismemberment to or of his person; or

(c) Is done with a deadly weapon, or in any

manner whereby great bodily harm, disfigurement,

dismemberment, or death can be inflicted.

Aggravated battery is a class C felony.