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Miller v. Commonwealth

Court of Appeals of Kentucky

November 30, 2018

IAN MILLER APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM WAYNE CIRCUIT COURT HONORABLE VERNON MINIARD, JR., JUDGE ACTION NO. 14-CR-00034

          BRIEF FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky.

          BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON [1] AND KRAMER, JUDGES.

          OPINION

          KRAMER, JUDGE:

         Ian Miller appeals the Wayne Circuit Court's judgment convicting him of reckless homicide and sentencing him to five years of imprisonment. Following a careful review of the record, we affirm.

         Ian and his then-wife, Brianna, [2] moved into a trailer at 685 Highway 1275 on or about April 19, 2014. Near midnight on April 20, 2014, Ian was sitting on his front porch when his new neighbor, Gavin Thompson, approached and greeted him. Brianna later joined them; Shana Cummings[3] (Gavin's live-in girlfriend) did so as well; and the four of them conversed. During that time, the men consumed alcohol, and Ian repeatedly pulled a gun that he carried with him out of his pocket to show Gavin and Shana. At approximately 3 a.m., the women were relaxing in the Millers' trailer while the men were in Gavin's and Shana's trailer next door. Shana heard gunshots, so she ran home. When she opened the door, Gavin was lying on the floor, and a large, serrated kitchen knife was underneath one of his arms. Ian was standing at Gavin's feet and pointing the gun at Gavin's head. Shana called 911. The authorities arrived shortly thereafter, and Ian disarmed and surrendered himself.

         During the investigation that ensued, only Ian and Shana offered direct accounts of the circumstances surrounding Gavin's death, and much of the focus was upon the discrepancies between their versions. Ian, for his part, did not contest that he shot Gavin three times - once in the left lower quadrant of his abdomen, once in his left upper back, and again in his right mid back. But, he claimed to have done so in self defense. He told investigators that after meeting on his porch, the four of them had initially gone over to Gavin and Shana's trailer to socialize. Once there, Gavin had become increasingly aggressive toward him and the women; that he had intentionally suggested the women relax at the trailer he shared with Brianna in an effort to separate them from Gavin; and that shortly after the women left, and immediately before he shot Gavin, Gavin had charged at him with a kitchen knife. Aside from that, Ian had no specific memories of the shooting, what had led to it, or of what transpired immediately afterward.

         Ian's version of events differed significantly from Shana's more detailed account. To summarize, Shana indicated that Ian, not Gavin, had acted irrationally and aggressively. She told investigators and later testified that while she and Brianna were with Gavin and Ian, the two men never appeared angry with one another, always appeared to be getting along, and had mostly debated about music. However, she felt something about Ian was "off," and it frightened her that Ian repeatedly displayed his gun. She recalled Ian making a statement to the effect that he had never gotten the opportunity to kill anyone while he was in the military, that he sounded disappointed when he had said it, and that he had also said that he had had dreams of killing people. She also recalled that at one point she attempted to remove herself from Ian's presence by locking herself in the bathroom of the trailer she shared with Gavin. She stated Ian broke into the bathroom and tried to grab her and that she immediately rushed out and back to where Gavin and Brianna were (the kitchen and living room area of the trailer she and Gavin shared). But, she did not tell anyone what had occurred.

         Shana stated that Ian had suggested she and Brianna go to the Miller trailer and relax over there because she was feeling sick, and because the men wanted to continue talking, listening to music, and cooking in Gavin's and Shana's trailer. She stated that she whispered to Gavin that she thought they should just ask the Millers to leave because she did not feel comfortable having someone with a gun in their home. But, she went to the Miller trailer with Brianna after Gavin assured her everything would be fine.

         According to Shana, she heard the gunshots ten or twenty minutes later, ran home, opened the door, and discovered Gavin bleeding and laying facedown on the floor. Ian was standing at Gavin's feet, pointing a gun at Gavin's head. She tried pushing Ian away, but Ian continued to point his gun at Gavin and proceeded to point the gun at her face. Ultimately, she either succeeded in pushing Ian outside or he left on his own. Then, as she held the door shut and called 911, Ian tried to pull the door open from the outside but abandoned the effort shortly before the first police officer arrived on the scene.

         Following an investigation, Ian was indicted on the charge of capital murder. The primary issue at trial was whether Ian had shot Gavin believing, reasonably or otherwise, that doing so was necessary for self protection. Following a jury trial, Ian was convicted of reckless homicide and sentenced to five years of imprisonment.

         On appeal, Ian argues the trial court erred in either limiting his ability to conduct cross examinations, or by excluding what he believes was relevant, exculpatory evidence. As to the nature of the evidence that the trial court excluded, it generally falls into two categories: (1) impeachment evidence against Shana; and (2) impeachment evidence against Detective Billy Correll, the lead investigator who ultimately arrested Ian.

         The limitations that are placed upon cross examination are within the circuit court's discretion. See Davenport v. Commonwealth, 177 S.W.3d 763, 768 (Ky. 2005) (explaining "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (internal quotation marks and citation omitted; alteration in original)). We review the trial court's decisions with respect to the admission or exclusion of evidence under the abuse of discretion standard. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). With that in mind, we proceed with our analysis.

         I. Impeachment and cross examination of Shana Cummings

         Ian asserts, without citing any specific evidentiary rule, that he should have been permitted to impeach Shana during cross examination by demonstrating that during the time of his trial she was on pretrial diversion for a felony conviction and that two bench warrants were pending against her. We disagree.

         We begin with what Ian argues was the trial court's erroneous refusal to allow him to impeach Shana with her "felony conviction," and qualify his argument by noting he was able to imply during his trial that Shana had been charged with a felony. On cross examination, the following exchange between his counsel and Shana took place:

IAN'S COUNSEL: Miss Cummings, as you sit here today testifying, you are a convicted felon, aren't you?
SHANA: No, not convicted.

         That aside, evidence of a witness's felony conviction is an accepted form of impeachment. See Kentucky Rule of Evidence (KRE) 609(a). This is so - as Ian notes - even if a witness is participating in pretrial diversion[4] that could ultimately negate the felony conviction.[5] See Futrell v. Commonwealth, 471 S.W.3d 258, 286-87 (Ky. 2015); cf. Holt v. Commonwealth, 250 S.W.3d 647, 653 (Ky. 2008) (explaining a witness's "mere participation in a pretrial diversion program, absent any further showing upon which to infer bias, is an insufficient basis for impeachment"); Farmer v. Commonwealth, 309 S.W.3d 266, 272-73 (Ky. App. 2009) (explaining that upon the completion of a felony diversion program, a witness is no longer considered convicted of a felony for purposes of KRE 609(a)).

         However, according to the appellate record, Shana was not convicted of a felony nor has she ever been on pretrial diversion for any felony charge. Rather, the avowal exhibits Ian tendered merely demonstrate the following: (1) on July 2, 2013, Shana filed a motion in a criminal proceeding in Anderson Circuit Court requesting to be placed on pretrial diversion for a felony charge; (2) she offered a plea of guilty to the felony charge, but her plea was conditioned upon the Anderson Circuit Court granting her motion;[6] and (3) the Anderson Circuit Court entered no order granting her motion. Indeed, Shana herself testified through avowal that she has never participated in a pretrial diversion program relating to her felony charge.

         Courts speak only through written orders entered upon the official record. Kindred Nursing Ctr. Ltd. P'ship v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). Here, while Ian demonstrated Shana had been charged with a felony, he offered no proof, much less a written court order, indicating she had been convicted of one or otherwise indicating how her criminal matter had been resolved, if at all. As the trial court correctly explained below, that was insufficient for impeachment purposes under KRE 609(a).

         As for the trial court's exclusion of the two bench warrants pending against Shana at the time of Ian's trial, we likewise find no error. Ian's argument in this vein implicates KRE 608(b), which allows inquiry into a witness's specific instances of past conduct for purposes of impeachment, not extrinsic evidence. Thus, to the extent Ian is arguing the jury should have been permitted to consider the several court records he provided the trial court through avowal, relating to Shana's warrants and apparently pending felony charge, he is mistaken. Nor, for that matter, does Ian argue the probative value of that extrinsic evidence was so compelling or so crucial to his defense that the trial court should have exempted those records from the ordinary rules of evidence.

         Alternatively, if Ian's argument is focused upon the scope of inquiry he was permitted by the trial court regarding Shana's specific instances of conduct, we reject the notion that any reversible error occurred. KRE 608(b) only allows for inquiry into a witness's specific instances of conduct if the conduct in question is "probative of truthfulness or untruthfulness[.]" A witness's failure to appear in court is not probative of a witness's truthfulness. See, e.g., Slone v. Commonwealth, 382 S.W.3d 851, 857 (Ky. 2012). And of the two warrants, the first relates to Shana's failure to appear in Anderson Circuit Court for sentencing in her felony matter. The second was issued due to Shana's failure to appear in Anderson District Court for monitoring that related to her probation for misdemeanor theft by unlawful taking.[7]

         Ian also insinuates the outstanding warrants could have given Shana an incentive to lie to curry favor with the prosecution. He specifically draws attention to the fact that the prosecution was made aware of Shana's outstanding warrants approximately three months prior to his trial (after his counsel informed the prosecution about her warrants).

         However, as the Kentucky Supreme Court explained in Davenport, 177 S.W.3d at 769,

[R]eviewing courts have found reversible error when the facts clearly support an inference that the witness was biased, and when the potential for bias exceeds mere speculation. In [Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)], the Confrontation Clause violation occurred when the trial court excluded evidence that a key prosecution witness's criminal charge had been dismissed after he agreed to talk with investigators about the murder, an agreement which the witness readily acknowledged. 475 U.S. at 676, 106 S.Ct. at 1432. In [Spears v. Commonwealth, 558 S.W.2d 641, 642 (Ky. App. 1977)], error occurred when the trial court excluded evidence that the principal prosecution witness had an indictment pending at the time of trial in the same county. Id. In Williams v. Commonwealth, this Court determined that the trial court should have permitted defense counsel to question a key witness about the possibility of a "deal" with the Commonwealth. 569 S.W.2d 139 (Ky. 1978). In Williams, though, evidence supporting the Inference of bias was strong: the key witness refused to testify at the defendant's first trial unless he was released from jail, he was in fact thereafter released, the conviction was later vacated, and he admittedly refused to incriminate the defendant until after he had spoken with a government agent. Cf. Nunn v. Commonwealth, 896 S.W.2d 911 (Ky. 1995) (finding no violation of appellant's confrontation rights where the trial court prohibited cross-examination of a key witness regarding pending charges against him, particularly in light of the extensive cross-examination that was permitted and the potential for juror confusion).
The trial court does not err in limiting evidence of potential bias when there is a lack of credible evidence supporting the inference. In Bowling v. Commonwealth, a factually analogous case, we concluded that the mere fact of a witness's pending indictments in an adjacent county were insufficient to infer that the witness was motivated to testify in an effort to curry favor with the Commonwealth's Attorney. 80 S.W.3d 405, 411 (Ky. 2002). The Court in Bowling was persuaded by the fact that the prosecuting attorney, in reality, had no jurisdiction to grant any leniency to the witness with respect to charges in another county. "Since there was no connection between [the prosecuting attorney] and the case against [the witness] in Fayette County, the pending Fayette County indictments were not admissible." Id. The Court also took note that Bowling offered no evidence that supported his claim that the witness had been offered leniency to testify.

         Here, the circumstances surrounding Shana's outstanding bench warrants were analogous to the circumstances surrounding the witness's indictments in Bowling. Shana's warrants originated in a different county (Anderson). The Commonwealth's Attorney prosecuting this matter had no jurisdiction to grant Shana anything with respect to those warrants, much less leniency in relation to those proceedings. Shana was offered nothing from the Commonwealth's Attorney in exchange for her testimony - a point the Commonwealth's Attorney verified to the trial court; Ian's counsel conceded while taking Shana's avowal testimony; and which Ian produced nothing aside from his own speculation to refute. Indeed, during her avowal testimony Shana stated she was unaware of the warrants. Accordingly, the trial court acted well within its purview in excluding this evidence. See Bowling, 80 S.W.3d at 411. We find no error.

         II. Impeachment and cross examination of Detective Billy Correll

         The second category of evidence Ian asserts the trial court wrongfully excluded is what he characterizes as impeachment evidence against Kentucky State Police Detective Billy Correll, the lead investigator who ultimately arrested him. Ian takes issue with the scope of inquiry he was allowed or believes he was allowed during cross examination to demonstrate, in the words of his brief, that "Correll didn't do the work necessary to make a decision as to whether Gavin was a good neighbor or a crazy neighbor." However, it is unclear from his argument and the context of what occurred at trial if Ian is focusing upon his ability to ask: (1) whether Correll received Gavin's criminal or psychological records prior to arresting him; (2) whether Correll reviewed any of Gavin's criminal or psychological records prior to arresting him; or (3) for Correll's opinion, based upon those records, of Gavin's likely mental condition before Gavin was shot - in other words whether, if he had reviewed those records, Correll would have found Ian's version of events (i.e., that Gavin was the first aggressor) more credible or believable.

         To explain, portions of Correll's pre-arrest interview with Ian were introduced as evidence at trial and at one point during the interview, while discussing Ian's claim that Gavin had charged at him with a knife, the following exchange occurred:

CORRELL: What about the other ...

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