State v. Miller , 254 N.C. App. 196 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1206
Filed: 20 June 2017
Guilford County, Nos. 13CRS089956–57
STATE OF NORTH CAROLINA
v.
MARVIN EVERETTE MILLER, JR.
Appeal by defendant from judgments entered 8 April 2016 by Judge Edwin G.
Wilson, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 4 May
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General David
J. Adinolfi II, for the State.
Mark Montgomery for defendant.
DIETZ, Judge.
Defendant Marvin Miller appeals his conviction for killing his estranged wife
and severely wounding her boyfriend. He argues that the State violated his
Confrontation Clause rights at trial when a law enforcement officer described to the
jury what Miller’s wife told him during an earlier domestic abuse investigation.
As explained below, we agree that the State violated Miller’s Confrontation
Clause rights. The victim’s statements to the officer in that earlier domestic violence
incident were made after she fled from Miller in her car and called police from a safe
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Opinion of the Court
location. Moreover, the purpose of the officer’s questions was to determine what
happened, not what was happening. As a result, those statements were testimonial
in nature.
Although Miller was tried for that earlier domestic violence offense, the record
in this case does not indicate that Miller had an opportunity to cross-examine his wife
about the challenged statements at the time. To the contrary, Miller’s wife asked the
State to drop the charges and sat with him at the trial, which suggests Miller may
have had no need to cross-examine her in that earlier proceeding; in any event,
because the record contains no transcript of the proceeding, this Court has no way to
know.
Likewise, the record contains no indication (and no findings from the trial
court) that Miller killed his wife to prevent her from testifying about that earlier
incident. Thus, under controlling U.S. Supreme Court precedent, the mere fact that
the victim is unavailable because Miller killed her does not mean Miller forfeited his
Confrontation Clause rights.
Finally, because this is a constitutional error, the burden is on the State to
show that the error was harmless beyond a reasonable doubt. The State did not argue
harmless error on appeal and, as a result, abandoned any harmless error argument.
We therefore vacate the trial court’s judgments and remand for further proceedings.
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STATE V. MILLER
Opinion of the Court
Facts and Procedural History
On 1 September 2013, Defendant Marvin Miller entered the home of his
estranged wife, Lakeshia Wells, and found her and her boyfriend, Marcus Robinson,
naked. Miller attacked Wells and Robinson with a knife, wounding Robinson and
killing Wells.
A grand jury indicted Miller for first degree murder, attempted first degree
murder, and burglary and the case went to trial. The jury acquitted Miller on the
burglary charge but convicted him of first degree murder and attempted first degree
murder. The court arrested judgment on the attempted first degree murder conviction
and sentenced Miller to life in prison without the possibility of parole. Miller timely
appealed.
Analysis
Miller argues that the trial court violated his constitutional rights under the
Confrontation Clause by permitting a police officer to testify to statements made by
the victim. As explained below, we agree that the State violated Miller’s Sixth
Amendment rights.
Miller properly preserved his Confrontation Clause argument at trial; we thus
review it de novo on appeal. State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437,
444 (2009). The Confrontation Clause of the Sixth Amendment bars admission of
testimonial statements of a witness who did not appear at trial, unless the witness
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Opinion of the Court
was unavailable to testify and the defendant had a prior opportunity to cross-examine
the witness. State v. Bodden, 190 N.C. App. 505, 513, 661 S.E.2d 23, 28 (2008).
“Statements are testimonial when circumstances objectively indicate there is no
ongoing emergency and the primary purpose of the interrogation is to establish or
prove past events that will be relevant later in a criminal prosecution.” Id. at 514,
661 S.E.2d at 28. Among the factors that indicate a statement is testimonial are the
fact that there was no immediate threat to the witness and that the law enforcement
officer was seeking to determine “what happened” rather than “what is happening.”
State v. Lewis, 361 N.C. 541, 547, 648 S.E.2d 824, 829 (2007).
Applying these factors, we hold that the challenged statements were
testimonial in nature. In 2012, roughly a year before the crimes alleged in this case,
Miller’s estranged wife, Lakeshia Wells, called police. She explained that she had
been held against her will by Miller inside her apartment for more than two hours.
Eventually, Wells was able to leave the apartment, where Miller remained. Wells got
in her car, drove away, and called police.
Officer E.R. Kato of the Greensboro Police Department responded to the call
and met Wells near her apartment building. Wells told the officer that Miller held
her against her will and things had “escalated to a physical struggle.” The officer
accompanied Wells back to her apartment “to just generally clear the apartment and
make sure there was nobody in there that shouldn’t be there” and then he left and
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Opinion of the Court
obtained a warrant for Miller’s arrest. At the trial in this case, Officer Kato testified
to what Wells told him when he met her outside her apartment, including her
statement that Miller had confined her in the apartment and that she had a physical
struggle with Miller.
Wells’s statements about the confinement and altercation with Miller were
“testimonial” and thus subject to the Confrontation Clause. First, there was no
immediate threat or ongoing emergency when the officer spoke to Wells. See Lewis,
361 N.C. at 547, 648 S.E.2d at 828–29. The officer’s own testimony demonstrates that
Wells had left the scene of the crime in her car and called police from a safe location
away from Miller.
Second, according to the officer’s own testimony, his questions were focused on
“what happened” rather than “what is happening.” See id. To be sure, as the State
argues, the officer might have sought to gather information about Miller’s location,
because Miller was still inside the apartment without permission. But the statements
about which the officer testified were not ones addressing Miller’s current
whereabouts—for example, responses to questions such as “where did you last see
Miller?” or “what room of the apartment was he in?” Instead, the statements to which
the officer testified at trial concerned past events—information necessary to obtain a
warrant to arrest Miller for his actions:
Q. And did she indicate anything else happening between
the two of them?
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Opinion of the Court
A. She advised that during the time he was there, which
was approximately two hours, that they argued. The
argument became heated at one point, I believe she stated,
and that it escalated to a physical struggle as well, and that
after it had deescalated to no longer being physical, she
was able to exit the apartment and leave the area in her
vehicle.
Q. And did you notice any physical marks or any marks of
a physical—
A. I don’t recall physical injury, but I did recall a tear in a
shirt, a tear and what appeared to be stress marks, pull
marks, to—if I recall, it was a cotton shirt, which would
have been consistent with a struggle.
These statements to the officer plainly addressed what happened, not what
was happening, and they were not made during any immediate threat or ongoing
emergency. Thus, we agree with Miller that these statements were testimonial in
nature and thus subject to the Confrontation Clause.
The State contends that, even if Wells’s statements were testimonial, their
admission did not violate the Confrontation Clause because Miller had an
opportunity to cross-examine Wells on these issues at an earlier trial for criminal
domestic trespass. See Bodden, 190 N.C. App. at 513, 661 S.E.2d at 28. But we have
no way to know that Wells actually gave this testimony at the earlier trial because
the record does not contain any transcripts or evidence from that proceeding. This is
fatal for the State’s argument because (rather obviously) Miller cannot confront Wells
about statements she made if she never actually made them. Indeed, there are some
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Opinion of the Court
suggestions in the record that Wells did not provide this testimony at the earlier trial.
For example, the record indicates that Wells asked the State to drop those earlier
charges against Miller, and that she sat with Miller during that earlier trial. Simply
put, the appellate record does not contain any indication that Wells made the
challenged statements at this earlier trial or that Miller had an opportunity to cross-
examine her about them. Accordingly, we reject this argument.
The State next contends that Miller forfeited his Confrontation Clause rights
when he killed Wells. See generally State v. Weathers, 219 N.C. App. 522, 524–25, 724
S.E.2d 114, 116 (2012). But again, the record (or, more precisely, the trial court’s
ruling on the Confrontation Clause issue) does not support this contention. The mere
fact that Miller killed Wells is not enough for forfeiture. The U.S. Supreme Court has
held that forfeiture applies “only when the defendant engaged in conduct designed to
prevent the witness from testifying.” Giles v. California, 554 U.S. 353, 359 (2008).
Thus, forfeiture requires some showing that the defendant killed the witness at least
in part to prevent the witness from testifying. See Weathers, 219 N.C. App. at 525,
724 S.E.2d at 116; United States v. Jackson, 706 F.3d 264, 268 (4th Cir. 2013).
The trial court did not make a finding that Miller killed Wells to prevent her
from testifying about this earlier domestic violence incident, and we find no indication
in the record that this was Miller’s motivation, even in part. Thus, the record does
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Opinion of the Court
not support the State’s argument that Miller forfeited his Confrontation Clause rights
by killing Wells to prevent her from testifying.
Having determined that the State violated Miller’s rights under the
Confrontation Clause, we next turn to whether the error prejudiced the trial. This is
a constitutional error and thus is prejudicial and requires a new trial unless it is
harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A–1443(b). Importantly,
“[b]ecause this error is one with constitutional implications, the State bears the
burden of proving that the error was harmless beyond a reasonable doubt.” State v.
Bell, 359 N.C. 1, 36, 603 S.E.2d 93, 116 (2004) (emphasis added).
The State has abandoned any argument on harmlessness because it did not
raise the issue in its appellate brief. See In re L.I., 205 N.C. App. 155, 162, 695 S.E.2d
793, 799 (2010); State v. Pinchback, 140 N.C. App. 512, 520–21 & n.4, 537 S.E.2d 222,
227 & n.4 (2000). We acknowledge that there is overwhelming evidence of Miller’s
guilt in this case and that the challenged testimony from the officer, relaying the
victim’s statements from an earlier, unrelated domestic violence incident, almost
certainly played little if any role in the jury’s decision to convict.
But this Court routinely finds that criminal defendants abandoned prejudicial
error arguments by failing to adequately argue them on appeal. See, e.g., State v.
Tatum-Wade, 229 N.C. App. 83, 94–95, 747 S.E.2d 382, 390 (2013). It is no injustice
to hold the State, with its vast and virtually unlimited resources, to the same
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standard as a criminal defendant, whose life or liberty is at stake. Accordingly, we
hold that the State violated Miller’s Sixth Amendment right to confront the witnesses
against him and that this violation prejudiced his trial. We vacate the trial court’s
judgments and remand for further proceedings consistent with this opinion. Because
we vacate and remand on this issue, we need not reach Miller’s other arguments on
appeal.
Conclusion
For the reasons explained above, we vacate the trial court’s judgments and
remand for further proceedings.
VACATED AND REMANDED.
Judges DILLON and TYSON concur.
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