# Petition for Writ of Certiorari — Miller v. Kansas

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2155%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 855

## Text

; J YUP gilge VVUL, Ves i

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.

a al

— usa

-lli-

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

© ,
+. 4 , f
. . a
; **

Soe NOTARY PUBLIC

= 4%
> a
eal yy
- ‘ -
= >. *
al * A. . ~ @
- ~~ 0 a
eo -
- "a, -
~~ if =
> . =
al >
- + 4
-
% e a o¢? x 3 7°
~~ >» “Seeccoe® < “ft
* s
‘ .
7
,
‘*

5
ss

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2155%3A1. Public record. Not legal advice.