STATE OF IOWA, Plaintiff-Appellee, vs. GARY WADE MILLER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-414 / 05-0600
Filed November 30, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GARY WADE MILLER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse,
Judge.
Gary Wade Miller appeals from his conviction and sentence for vehicular
homicide. AFFIRMED.
Eric Parrish of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook,
L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney
General, Wayne Reisetter, County Attorney, and Jeannine Gilmore and Stacy
Ritchie, Assistant County Attorneys, for appellee.
Heard by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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ZIMMER, J.
Gary Wade Miller appeals from his conviction and sentence for homicide
by vehicle in violation of Iowa Code sections 707.6A and 321J.2 (2003). He
contends there was insufficient evidence to support his conviction, the State
improperly withheld evidence, and the district court erred in failing to instruct the
jury on intervening and superseding cause. Because we find no merit in any of
Miller’s appellate claims, we affirm.
I.
Background Facts & Proceedings
A jury could have found the following facts from the evidence presented at
trial. Gary Miller and his friend, Larry Massure, spent the afternoon and early
evening hours of April 10, 2004 drinking. Miller picked up Massure around noon,
and the pair traveled to Bo Jangles, a bar in Adel. They stayed at Bo Jangles for
one and a half to two hours and then went to another bar called Rendezvous.
After drinking at Rendezvous, they drove to the Coon River Bar and Grill in Van
Meter. Miller and Massure stayed at that bar from approximately 3:30 p.m. to
7:00 p.m. Both Miller and Massure drank alcoholic beverages at all three bars.
Miller did not eat food at any of the bars.
Miller and Massure left the Coon River Bar and Grill at approximately 7:00
p.m. and headed west on De Soto Road with Miller driving. At the same time,
Sam Osier, his wife Toni, their ten-year-old daughter Marina, and the family’s
three dogs were taking a walk on De Soto Road. The family was walking west
on the south shoulder of the road looking for asparagus that grew in the ditches.
As always, they walked facing oncoming traffic, stayed close to the shoulder of
the road, and were aware of anything approaching them from behind. Toni was
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walking on Sam’s left side, closest to the ditch. Marina was walking behind her
parents, and the three dogs were on either side of Toni.
Toni heard the defendant’s vehicle approaching the family from behind. It
sounded like the car was accelerating. Sam and Toni checked to make sure
Marina and the dogs were off the road. According to Toni, the family was on the
grass near the ditch because they were nearing an asparagus patch.
Toni
glanced to her right and saw a vehicle hit Sam. Her husband’s body was thrown
into the ditch on the south side of the road. Investigators concluded Miller’s car
struck Sam on the left side of the road. Sam Osier was pronounced dead at the
scene.
The State filed a trial information charging Miller with homicide by vehicle,
a class B felony, and operating while intoxicated, first offense, a serious
misdemeanor. The case proceeded to trial, and a jury found Miller guilty of
homicide by vehicle.
Miller was sentenced to an indeterminate term of
incarceration not to exceed twenty-five years, and the district court ordered him
to pay $16,905.60 victim restitution and $150,000 restitution to the victim’s estate
or heirs. Miller now appeals.
II.
Discussion
Miller contends the jury’s verdict is not supported by substantial evidence.
He also argues the State improperly withheld evidence, and he contends the
district court erred in failing to instruct the jury on intervening and superseding
cause. We will address each of Miller’s appellate claims in turn.
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A.
Sufficiency of the Evidence
Miller contends the State failed to prove he was operating his vehicle while
intoxicated, and he argues the evidence was insufficient to prove he caused the
accident that took Sam Osier’s life.
We review sufficiency of the evidence claims for the correction of errors at
law and uphold the jury’s verdict if substantial evidence supports it. State v.
Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Substantial evidence is evidence that
could convince a trier of fact the defendant is guilty of the crimes charged beyond
a reasonable doubt. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). We
consider all the evidence in the record, not just the evidence supporting guilt.
State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). We also consider legitimate
inferences and presumptions that may reasonably be deduced from the evidence
in the record. Id. We view the evidence in the light most favorable to the State.
State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993). Circumstantial and direct
evidence are equally probative, but evidence that merely raises suspicion,
speculation, or conjecture is insufficient. Iowa R. App. P. 6.14(6)(p); State v.
Hoeck, 547 N.W.2d 852, 859 (Iowa Ct. App. 1996).
In order to convict Miller of homicide by vehicle, the State had to prove the
following elements by proof beyond a reasonable doubt.
1. On or about the 10th day of April, 2004, the defendant operated
a motor vehicle:
a. while under the influence of alcohol; or
b. while having an alcohol concentration of .08 or more.
2. The defendant’s act or acts set out in Element 1 unintentionally
caused the death of Sam Osier.
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We conclude there is substantial evidence in the record showing Miller operated
a motor vehicle while under the influence and while having a blood alcohol level
above the legal limit.
Miller and Massure spent the afternoon of April 10 drinking at three bars.
Shortly after the collision, Miller told a paramedic and Deputy Sheriff Michelle
Leonard that he was drunk. 1
Deputy Leonard observed Miller had slurred
speech, and she noticed his balance was so poor he had to hold onto a car to
stay upright. Miller also had bloodshot and watery eyes, and he emitted a strong
odor of alcohol.
Dallas County Deputy Sheriff Jon Thomas, a certified drug
recognition expert, testified Miller had slurred speech and poor balance, was
confused, and emitted the odor of alcohol. Because Miller refused to submit to a
breath test, Dr. Steven Donnenwerth drew his blood at the Dallas County
Hospital. The doctor observed Miller’s speech was slurred and abnormally loud,
and he smelled strongly of alcohol. Miller stated he consumed at least five, but
no more than seven drinks at the bars he visited with Massure.
Miller failed three field sobriety tests. He failed the walk and turn test and
was unable to complete the one-leg stand after attempting the test three times.
Miller failed the horizontal nystagmus test. While doing so, he exhibited vertical
nystagmus, which Deputy Thomas testified is much less common than horizontal
nystagmus and indicates Miller’s blood alcohol concentration was very high. In
addition, Miller’s booking videotape shows he had trouble following directions, he
was unable to complete the field sobriety tests, and he spoke loudly.
1
We
Deputy Leonard testified Miller told her, “I did it. I’m drunk.” Timothy Morlan, a
paramedic for Dallas County EMS, testified Miller said, “My only problem is that I’m too
drunk.”
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conclude there was substantial evidence to support the conclusion that Miller
operated his vehicle while under the influence of alcohol.
The record also reveals substantial evidence from which a jury could have
determined Miller’s blood alcohol concentration exceeded .08. Miller’s blood was
drawn approximately three hours and forty minutes after the accident. Orville
Berbano, a criminalist for the Iowa Division of Criminal Investigation (DCI),
testified Miller’s blood alcohol concentration (BAC) was .193, more than two
times the legal limit. Berbano testified the blood sample was valid and the test
results were accurate.
Berbano estimated Miller’s BAC would have been
between .253 and .273 four hours earlier. Miller presented testimony disputing
the results of his blood test on the basis that the collection vials did not contain a
preservative and the blood samples were not refrigerated for several days,
allowing the blood to produce its own alcohol. The State offered testimony from
Dr. Francis Garrity that indicated blood would have to be in a visibly advanced
state of decomposition to produce alcohol, and Berbano said there was no
problem with the blood sample. It was for the jury to decide which of the experts
was more credible and whose opinion to accept. Mercy Hosp. v. Hansen Lind &
Meyer, P.C., 456 N.W.2d 666, 672 (Iowa 1990).
We next consider Miller’s claim that substantial evidence does not support
the jury’s determination that he caused San Osier’s death. In support of this
argument, Miller claims the State did not establish where on the roadway Miller’s
car struck Osier. Based on the evidence we have already described, the jury
could have reasonably concluded that while driving his vehicle while intoxicated,
Miller drove out of his own lane of traffic and struck Sam Osier on the left side of
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the road. The State sufficiently proved Miller was a proximate cause of Osier’s
death. We reject this assignment of error.
B.
Late Evidentiary Disclosures
Miller contends two late evidentiary disclosures violated his right to a fair
trial. He claims the State failed to timely inform him the vials used to store his
blood sample did not contain a preservative, as indicated by different colored
stoppers in the tubes. Miller also maintains the State failed to provide him with
approximately fifteen minutes of additional footage from a booking videotape
which he did not discover until he played the tape at trial.
Miller filed a motion to produce on June 15, 2004, requesting all
information encompassed by Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
1196-97, 10 L. Ed. 2d 215, 218 (1963) (holding that “suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution”). In response to
Miller’s motion, the State produced an alcohol content report and a laboratory
receipt for the four vials of blood drawn from Miller. Neither document contained
information regarding the specific vials used to collect Miller’s blood.
Miller
claims he did not discover the vials did not contain preservative until he served a
subpoena on DCI Criminalist Berbano.
To establish a Brady violation, Miller must prove:
(1) the prosecution
suppressed evidence, (2) the evidence was favorable to him, and (3) the
evidence was material to the issue of guilt. State v. Veal, 564 N.W.2d 797, 810
(Iowa 1997), overruled in part on other grounds by State v. Hallum, 585 N.W.2d
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249, 253-54 (Iowa 1998). Evidence is material to the issue of guilt if there is a
reasonable probability disclosure of the evidence would have altered the
outcome of the proceeding. State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996).
We review this constitutional issue de novo. Id.
Even if we assume without deciding that the State did not timely disclose
evidence that the vials used to collect Miller’s blood did not have gray stoppers
that indicate the use of sodium fluoride as a preservative, we find no Brady
violation here. Evidence is not considered “suppressed” if the defense is able to
take advantage of it at trial. Veal, 564 N.W.2d at 810. The record reveals Miller
referred to the different colored stoppers in a motion in limine filed almost one
month prior to trial. Furthermore, Miller used this evidence extensively at trial to
his own advantage in cross-examining the State’s witnesses and questioning his
own expert.
Nothing in the record suggests that earlier disclosure of this
evidence would have altered Miller’s trial strategy or changed the outcome of this
proceeding. We conclude Miller failed to establish a Brady violation with regard
to the blood collection vials.
Miller also contends a Brady violation occurred when the State failed to
provide him with approximately fifteen minutes of additional footage from a
booking videotape he did not become aware of until the tape was shown at trial.
The State made a DVD copy of the original booking videotape, and Miller also
made DVD copies from his copy of the videotape. The State showed a portion of
its DVD copy at trial. Later, Miller showed the remainder of the DVD to the jury.
Miller claims he discovered for the first time at trial that the DVD contained
approximately fifteen minutes of additional footage he had not received from the
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State, which included “a very incriminating statement [made by Miller] about the
likely results of his blood test.” Miller made a motion for mistrial, and the district
court overruled the motion, finding Miller had waived any objection by allowing
the entire video to play.
Miller has not shown the State suppressed fifteen minutes of the booking
videotape. The reason for the discrepancy between Miller’s copy of the tape and
the tape shown at trial is unknown.
Obviously, the State had no reason to
suppress an incriminating statement by Miller. For a Brady violation to occur, the
evidence in question must have been favorable to Miller. In this case, it was not.
Furthermore, Miller himself played the additional footage at trial and invited the
alleged error he now raises on appeal. Defense counsel could have stopped the
DVD as soon as he observed footage he had not seen before; instead, he
allowed the entire tape to play.
We will not permit a party to a criminal
proceeding to complain of error with respect to the admission or exclusion of
evidence when he or she committed or invited the error. State v. Washington,
257 N.W.2d 890, 893 (Iowa 1977). Finally, there is no indication this evidence
would have been excluded if an objection had been lodged. We conclude Miller
failed to establish a Brady violation with regard to the DVD footage.
C.
Jury Instructions
Miller claims the district court erred in failing to instruct the jury on
intervening and superseding cause. 2 In his brief on appeal, Miller suggests three
2
The court gave the following instruction regarding causation:
With regard to Element No. 2 of Instruction No. 17, the State must
prove that the Defendant’s act (operating a motor vehicle while under the
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events caused the accident rather than his driving while intoxicated. He claims
(1) the victim was intoxicated and may have been walking in the middle of the
road, (2) the victim’s three dogs contributed to the accident, and (3) the glare of
the sun caused the accident.
We review a trial court’s refusal to give a requested jury instruction for the
correction of errors at law. State v. Martinez, 679 N.W.2d 620, 623 (Iowa 2004).
We will not reverse a conviction based on an error in instructing the jury unless
the error is prejudicial to the defendant. State v. Holtz, 548 N.W.2d 162, 164
(Iowa Ct. App. 1996). A jury instruction error is presumed prejudicial unless upon
a review of the entire case, we find the error resulted in no prejudice. State v.
Bone, 429 N.W.2d 123, 127 (Iowa 1988).
During the conference on jury instructions, Miller’s theory that the glare
from the setting sun caused the accident was a subject of discussion. However,
Miller did not contend the alleged actions of Sam Osier or his dogs somehow
constituted intervening and superseding causes warranting a jury instruction.
One fundamental doctrine of appellate review is that issues must be raised and
influence of alcohol) was a proximate cause of the death of Samuel Osier.
Defendant denies he was intoxicated and claims that the sole proximate
cause of the accident that resulted in the death of Samuel Osier was the
glare of the sun in the Defendant’s eyes.
The conduct of a party is a proximate cause of injury or death
when it is a substantial factor in producing injury or death and when the
injury or death would not have happened except for the conduct.
“Substantial” means the party’s conduct has such an effect in
producing the injury or death as to lead a reasonable person to regard it
as a cause.
There can be more than one proximate cause of an injury or
death.
Sole proximate cause means the only proximate cause.
The State does not have to prove that Defendant’s act was the
sole proximate cause of death; however, it must prove that Defendant’s
act was a proximate cause of death.
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decided by the district court before we will decide them on appeal. Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We find Miller failed to preserve
error on the claims that the victim’s intoxication or the alleged interference of the
victim’s dogs warranted an instruction on intervening and superseding cause.
Even if Miller had preserved error on his claims that the victim’s
intoxication and interference by the dogs were intervening and superseding
causes for the accident, we find the court did not err in refusing to instruct the
jury regarding those issues. Miller relies on medical testimony that Sam had
consumed some alcohol prior to his death and Toni’s testimony that Sam had
consumed two glasses of beer at a steakhouse before their walk to speculate
Sam was intoxicated and must have been walking in the middle of the road.
Contrary to Miller’s assertion on appeal, nothing in the record indicates Sam was
intoxicated and walking in the middle of the road when Miller’s vehicle struck him.
Dr. Garrity, who conducted the autopsy, testified Sam’s blood alcohol
content was under the legal limit. The record indicates Sam and Toni were
walking close to the shoulder of the road when Sam was struck. Toni testified
they were in the grass bordering the road at the time of the collision because
they were nearing an asparagus patch in the ditch. Investigators determined
Miller’s car struck Sam on the left side of the road because pieces of the lens
cover from the broken driver’s side headlight were discovered on the left side of
the roadway in the soft gravel portion. Furthermore, damage to Miller’s car was
on the driver’s side of the vehicle, and tire tracks took a sharp right turn away
from the point of impact and led to the place where Miller’s car came to rest.
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Nothing in the record indicates the Osiers’ dogs were in the road when the
collision occurred. Toni testified the dogs were all well-trained and obedient.
She stated two of the dogs were in the ditch because she and Sam were already
headed toward an asparagus patch in the ditch, and the other dog was at her
right leg. None of the dogs were struck by Miller’s car. We find the evidence did
not support a jury instruction on the victim’s intoxication or interference by the
dogs as intervening and superseding causes for the accident. We conclude an
instruction on intervening and superseding cause based on the actions of Sam or
his dogs would have been inappropriate.
We also reject Miller’s final claim that the glare caused by the sun
warranted an instruction on intervening and superseding cause.
The Iowa
Supreme Court has held that superseding causes are those that flow from the
acts of third persons or some other active force that produces the harm. State v.
Henning, 545 N.W.2d 322, 325 (Iowa 1996). The Henning court held conditions
such as light are not active forces:
“Contributing factors such as road and
lighting conditions against which the primary actor’s conduct is being weighed to
determine its culpability are neither the acts of third persons nor other active
forces that produce a superseding cause.” Id. We agree with the district court’s
ruling that Miller’s claim regarding glare from the sun did not warrant a further
jury instruction on intervening and superseding cause.
III.
Conclusion
Because we find no merit in any of Miller’s appellate claims, we affirm his
conviction of homicide by vehicle.
AFFIRMED.
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