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State v. Miller

Supreme Court of Appeals of West Virginia

November 4, 2019

State of West Virginia, Plaintiff Below, Respondent
Kevin Monroe Miller, II, Defendant Below, Petitioner

          (Preston County 17-F-17)


         Petitioner Kevin Monroe Miller, II, by counsel Lisa Hyre, appeals the Circuit Court of Preston County's March 30, 2018, order denying his motions for judgment of acquittal and for a new trial. Respondent the State of West Virginia, by counsel Benjamin F. Yancey, III, submitted a response to which petitioner submitted a reply.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In October of 2016, Petitioner Kevin Miller, II and Sonya Shears were in a relationship and had a son together. However, they had lost custody of the child, H.M. Under the custody order in place at that time, petitioner was allowed supervised visitation with the child and petitioner's parents were also permitted to visit with the child. Under that order, petitioner was not permitted to remove H.M. from his parents' property ("the Miller property") during those visits.[1]

         On October 29, 2016, police responded to a call about a shooting incident between petitioner and his father, Mr. Miller, at the Miller property. Police were informed that petitioner and Ms. Shears had left the property so two officers from the Preston County Sheriff's Department went to the area of the Jiffy Mart near the Miller property where they encountered petitioner and Ms. Shears standing on the side of the road a few miles from the Miller property. When officers approached, petitioner informed them that he had a .45 caliber gun in the vehicle and that he had used that gun to shoot his father. During that conversation, petitioner informed Deputy Hovatter that he had been at the Miller property and that H.M. was present at the time. Petitioner further stated that he and his father got into an argument over H.M. and petitioner's mother, Mrs. Miller, asked petitioner to leave.[2] Petitioner refused to leave and stated that he wanted to take H.M. from the home. According to petitioner, he then walked out of the house and Mr. Miller followed, firing two shots at petitioner's feet. Petitioner and Ms. Shears walked to their vehicle, but Mr. Miller followed, pointing his gun at them. Petitioner then retrieved his gun from the vehicle and peeked around the outbuilding near the vehicle where he observed Mr. Miller standing approximately thirty to forty yards away. Mr. Miller's gun appeared to jam so he began to walk away. However, as he did so, petitioner shot Mr. Miller. Mr. Miller responded by firing shots toward petitioner so petitioner and Ms. Shears left the scene.

         Another officer, Deputy Cline, spoke with Mrs. Miller before going to the location where petitioner and Ms. Shears were found. Petitioner agreed to speak with Deputy Cline, relaying a similar story to the one he told Deputy Hovatter. Deputy Cline arrested petitioner on the side of the road, and petitioner was subsequently transported to the sheriff's department. While there, petitioner spoke with one of the deputies who had originally gone to the Jiffy Mart area, Deputy Stockett, and that interview was recorded.

         On March 7, 2017, the grand jury returned a four-count indictment against petitioner, charging him with attempted first-degree murder, malicious assault, and two counts of wanton endangerment with a firearm. Petitioner was tried before a jury between February 6 and 8, 2018. At the close of the State's case, petitioner moved for a judgment of acquittal, but the circuit court denied that motion. At the end of petitioner's case-in-chief, he again moved for a judgment of acquittal, but that motion was also denied. At the conclusion of the trial, the jury convicted him of two counts of wanton endangerment with a firearm but acquitted him of the other charges. Petitioner filed a renewed motion for judgment of acquittal and motion for new trial in February of 2018. The circuit court heard oral argument on that motion, but it was denied by the circuit court by order entered March 30, 2018.

         The circuit court entered its sentencing order on April 30, 2018, sentencing petitioner to two determinate periods of five years of imprisonment, said sentences to run concurrently. He was given credit for time served at Tygart Valley Regional Jail and while on home confinement. Petitioner appeals from those orders. Because we review such orders under different standards, we will address the appropriate standards in conjunction with the assignments of error.

         On appeal, petitioner sets forth four assignments of error: (1) the circuit court erred by denying petitioner's motion for judgment of acquittal where the State failed to prove that petitioner was not acting in self-defense when he shot at the man who had shot at him and threatened to kill him; (2) the circuit court violated petitioner's Sixth Amendment right of confrontation when it allowed irrelevant and highly prejudicial Rule 404(b) evidence to be admitted during the trial, in the form of hearsay, and under the guise of res gestae; (3) the circuit court erred when it did not suppress petitioner's statement taken in violation of Miranda[3] and petitioner's Fifth Amendment right to counsel; and (4) the circuit court erred when it prevented petitioner from calling his expert witness, Dr. William Fremouw, in violation of petitioner's Sixth Amendment constitutional right to call witnesses on his behalf.

         We note at the outset that Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that "[t]he argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal." The Rule further permits the Court to "disregard errors that are not adequately supported by specific references to the record on appeal." While petitioner cites to the appendix record in his statement of facts, his citations to the record in the argument section of his brief fall far short of complying with Rule 10(c)(7). Due to the lack of citation to the record and petitioner's ambiguous arguments, this Court is unable to fully address all of his assignments error.

         In his first assignment of error, petitioner argues that he was entitled to a jury instruction on self-defense because his father shot first and threatened to kill both petitioner and Ms. Shears.[4]He contends that the State failed to prove that petitioner was not acting in self-defense and/or the defense of others. He asserts that self-defense and the defense of others is a complete defense to any charge and that the circuit court erroneously denied his request to properly instruct the jury regarding those issues. Without citing to the record, according to petitioner, this is particularly true here because petitioner returned gunfire after his father, while shooting at petitioner, threatened to kill him. He also points to the fact that the jury did not find him guilty of attempted first-degree murder, attempted second-degree murder, attempted voluntary manslaughter, malicious assault, or unlawful assault.

         This Court has found that "[w]hether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard. Of course, in criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution." State v. Derr, 192 W.Va. 165, 180, 451 S.E.2d 731, 746 (1994). See Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996) (holding that "[a]s a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion"). Further, we have held that the elements of self-defense are as follows:

[A] defendant who is not the aggressor and has reasonable grounds to believe, and actually does believe, that he is in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant has the right to employ deadly force in order to defend himself.

State v. Hughes, 197 W.Va. 518, 524, 476 S.E.2d 189, 195 (1996) (quoting State v. W.J.B.,166 W.Va. 602, 606, 276 S.E.2d 550, 553 (1981)). This Court has also held that "[t]o properly assert the defense of another doctrine, a defendant must introduce 'sufficient' evidence of the defense in order to shift the burden to the State to prove beyond a reasonable doubt that the defendant did not act in defense of another." Syl. Pt, 4, in part, ...

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