Miller v. State

94 So. 3d 1155, 2011 WL 6214829, 2011 Miss. App. LEXIS 710
Court of Appeals of Mississippi·Decided November 22, 2011·No. No. 2010-KA-00901-COA·Published·Cited by 1 cases

Opinions

GRIFFIS, P.J.,

for the Court:

¶ 1. Matthew Miller was convicted of the aggravated assault and forcible rape of Abby,1 his girlfriend’s sixteen-year-old daughter. Miller was sentenced to twenty years for the assault and thirty years for the rape, all in the custody of the Mississippi Department of Corrections. The sentences were ordered to be served consecutively. Miller appeals from that judgment, raising five issues. Finding no reversible error, we affirm.

FACTS

¶ 2. On the evening of January 27, 2008, a Sunday, Miller and Abby were alone at Abby’s mother’s home. Miller had been staying in the home for about eight years. Abby regarded Miller as her stepfather. That night, he asked her to help him capture a horse that had gotten away. Abby agreed, and they left in Miller’s vehicle, a Ford Explorer.

¶ 8. After a brief stop at his mother’s house, Miller drove Abby to an isolated area near his grandmother’s house, off Newman Road in Hinds County, Mississippi. Miller became silent. He left the road, cut off the lights, and turned the vehicle around so it faced the road. Miller got out, and Abby followed. She began to doubt that Miller was really looking for a horse. Abby sent her aunt the following text message: “I’m in a[sic] dark woods with Matthew like where his grandma stays just in case something happens.”

¶4. Shortly thereafter, Miller struck Abby on the top of the head, from behind, with a 2x4 he kept in his vehicle to hold its hatch open. Abby was taken by surprise, and she was dazed by the blow. When she recovered, she heard Miller yelling at her and acting “crazy.” She cried and tried to talk to him, but he hit her again, this time in her jaw with his fist. Miller told Abby to “shut up” and took her cell phone. Eventually, Miller told Abby he was afraid he would get in trouble for hitting her, and he said she would have to prove she would not tell her mother.

¶ 5. Miller then gestured to Abby’s breasts. She understood this as a command to expose herself to him, which she obeyed. Miller said that was not enough, and Abby began crying again. Miller opened the door of his vehicle and told Abby sit on the edge of the seat. She complied. Miller then pointed to Abby’s groin and threatened to kill her. Miller told Abby to “hurry up,” and she pulled down her pajama bottoms. Miller then [1159]*1159stood between Abby’s legs and had sex with her.

¶ 6. After Miller finished, he gave Abby a towel and told her to clean herself up, while he cleaned himself and her blood from the vehicle. Abby surreptitiously threw her towel onto the branches of a nearby tree, hoping someone would find it if she did not survive.

¶ 7. Miller began acting nervous. He told Abby he would leave her in the woods and that she should tell her mother she had been kidnapped. Abby was bleeding from her head and needed medical attention, so she said that would not work. Miller then let her back inside the vehicle. He began driving, but Abby realized Miller was taking them further away from home. She suspected he intended to kill her, so when Miller slowed the vehicle to round a curve, Abby jumped out and ran to a nearby house. Miller pursued, but the owners let Abby inside and alerted the authorities. Miller drove past the home a few times and left.

¶ 8. After Miller was arrested, he gave a statement to Hinds County Sheriffs Department. Miller admitted he had struck Abby with the board, but he could not explain why. He claimed they had mutually agreed to have sex to ensure Abby would not tell her mother he had hit her, as he would have something on her too. Miller denied the sex had been a rape.

¶ 9. At trial, Miller’s theory of the case was that Abby falsely accused him of rape to get back at her mother, who would not let Abby have boys over. In his testimony, Miller again claimed they had consensual sex, but he denied ever striking Abby. Instead, Miller contended that Abby had propositioned him and had been injured when she suddenly leapt from his vehicle.

¶ 10. Miller was convicted and sentenced. From this judgment, Miller appeals.

DISCUSSION

1. Recusal

¶ 11. Miller argues the trial judge erred in denying his ore tenus motion for the judge’s recusal, made four days before the trial. Miller claimed that Judge Malcolm Harrison must recuse himself because, before his appointment to the circuit court, Judge Harrison had served as the Hinds County prosecuting attorney. In that capacity Judge Harrison had appeared as a youth court prosecutor in the shelter hearing where Abby was removed from her mother’s care.

¶ 12. Miller’s argument on appeal has two distinct prongs. The first asserts an express ground for disqualification — the contention that because Judge Harrison held the position of Hinds County prosecuting attorney at the time of Miller’s indictment, he was required to disqualify himself from presiding over the trial. The second is more broadly addressed to all the circumstances of the case.

A. Express Disqualification

¶ 13. Mississippi Code Annotated section 9-1-11 (Rev.2002) forbids a judge from presiding “on the trial of any cause ... wherein he may have been of counsel, except by the consent of the judge and of the parties.” Likewise, the Mississippi Code of Judicial Conduct Canon 3(E)(1)(b) states: “Judges should disqualify themselves in proceedings in which ... the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter[J” Miller contends that the youth court action and Miller’s criminal prosecution were the same matter.

¶ 14. “The term ‘matter’ includes any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, inves[1160]*1160tigation, charge, accusation, arrest[,] or other particular matter involving a specific party or parties.” James v. Mississippi Bar, 962 So.2d 528, 534 (¶ 23) (Miss.2007) (quoting M.R.P.C. 1.11(d)(1)). It “seems to contemplate a discrete and isolatable transaction or set of transactions between identifiable parties.” ABA Formal Op. 342 (1975). Thus, two cases are the “same matter” when they involve the same parties, the same issues, and the same concerns. James, 962 So.2d at 534 (¶ 26).

¶ 15. The youth court action was initiated following the alleged assault and rape in the incident underlying Miller’s charges in the instant case. Miller points to a shelter order from the Hinds County Youth Court, which was entered on February 8, 2008, about ten days after the rape. The order recited that a shelter hearing had been held and that Judge Harrison had appeared as the youth court prosecutor, representing the State. Legal custody of Abby was awarded to the Mississippi Department of Human Services, with physical custody entrusted to her grandparents. The shelter order also recited that a no-contact order would be filed against Miller as the “alleged perpetrator,” and it instructed law enforcement and DHS to continue their investigations. Miller also produced an invoice for some of Abby’s medical records that had been billed to Judge Harrison, apparently when he was acting in his capacity as youth court prosecutor. This is the extent of Judge Harrison’s participation in the youth court case that is shown in the record.

¶ 16.

Free access — add to your briefcase to read the full text and ask questions with AI

Miller v. State, 94 So. 3d 1155, 2011 WL 6214829, 2011 Miss. App. LEXIS 710 (Mich. Ct. App. 2011).

94 So. 3d 1155 (Miller v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Miller v. State
94 So. 3d 1120 (Mississippi Supreme Court, 2012)