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Date: 06-30-2020

Case Style:

Joshua Charles Miller a/k/a Joshua Miller v. State of Mississippia

Case Number: 2018-CA-01355-COA

Judge: Jack L. Wilson

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH

Defendant's Attorney:

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¶4. On August 18, 1996, Miller was upset because his former girlfriend Aultman had
started dating someone else and told him that she did not want to see him anymore. Miller
went to see his friend Elliott Smith to talk about his problems with Aultman. According to
Smith, he and Miller walked to a pond near Smith’s house, and Miller said, “I’m gonna kill
Kristin.” However, Smith did not believe that Miller was serious. Miller eventually left
2
Smith’s house and went to church.
¶5. Miller testified at trial that Aultman had broken up with him before. When she had
done so previously, he would threaten to “hurt [himself] or [her]” if she did not get back
together with him. As he put it, he “was trying to scare her into loving [him], and usually it
worked.” Miller denied telling Smith that he was going to kill Aultman. According to
Miller, he only stated that “in the past, . . . [he] had scared her, and . . . she went back with
[him], and . . . maybe [he] could scare her this time” as well. Miller also admitted telling
Smith, “[S]ometimes I just feel like killing her.” Miller claimed that Smith then suggested
that he “do it.” Miller told Smith that he had a shotgun with him. Miller claimed that Smith
gave him two shotgun shells and helped him load the gun.1
¶6. Miller left Smith’s house and went to church. He was driving his family’s van.2
According to Miller, he had told his mother earlier that day that he would keep the nursery
for her at church that evening. When he arrived at the church, he saw Aultman sitting in a
gazebo with the youth group. According to Miller, Aultman “started looking at [him] kind
of mean.” Miller then left the church and drove back to Smith’s house. He told Smith that
he had been unable to talk to Aultman because too many other people were around.
¶7. Miller eventually returned to the church to try again to talk to Aultman. He found her
1 Smith denied that he gave Miller any shotgun shells. Smith was not questioned
specifically about whether he loaded the gun, but he testified, “[H]e told me he had the gun,
and he showed me the gun and showed me the shells . . . .” Smith did not believe that Miller
was serious about using the gun.
2 Although Miller was only fourteen years old, he apparently was allowed to drive the
family’s van near their home in rural Lamar County.
3
in the sanctuary and said, “I need to talk to you outside.” Miller walked back to his van, and
Aultman followed him. Miller opened the side door to the van and sat down just inside.
Miller asked Aultman what was “wrong” and what had “happened to [them].” Aultman told
Miller that there was “nothing between [them] any more,” that she did not love him, that she
wanted to be with her new boyfriend, and that she wanted him to “leave [her] alone.” Miller
then reached into the van and picked up his shotgun, which he had placed on the floorboard
in the back of the van. He pointed the gun at Aultman and shot her in the face at close range,
killing her immediately. At trial, Miller claimed that he only intended to “scare” Aultman
but pulled the trigger when he was “startled” by children playing nearby.
¶8. Miller threw the shotgun into the van, jumped inside, and sped away. He drove back
to the pond near Smith’s house, but he wrecked the van in a ditch near the pond. Smith had
seen Miller’s van speeding down the road and ran to meet him. Miller told Smith that he had
killed Aultman. Smith then ran back to his house. Smith’s father, Gary, testified that Smith
was “pretty hysterical” when he got home. Smith told Gary that Miller had killed Aultman,
and Gary then told law enforcement where he believed Miller was hiding.
¶9. Miller hid in the woods near the pond for a short time before walking out. When he
came out of the woods, a deputy sheriff told him to put his hands above his head, and Miller
stated, “I’m the one that shot her.” Deputy Terry Roseberry arrested Miller, told him not to
make any more statements, and took him to jail. A few minutes after they arrived at the jail,
Miller asked for Roseberry and handed Roseberry a handwritten note. Roseberry testified
that Miller must have written the note prior to his arrest because he did not have access to a
4
pen or paper or an opportunity to write after he was arrested. However, Miller claimed at
trial that he wrote the note while he was waiting to be questioned. The note read:
Police or anybody who cares:
If you receive this from Joey[
3
] it probably means I already killed her. I loved
her. She didn’t. She hurt me. I couldn’t take. If she can’t be mine, she can’t
be anybody [sic]. I love God, but Satan has a hold of me. I love you mom.
I love Joey, and all my family. What I have done is wrong. Forgive me.
/s/ Josh Miller
¶10. Investigator Fred Steele arrived at the jail a short time later and read Miller his
Miranda rights. Miller told Steele that he killed Aultman because “[s]he hurt [him] real
bad.” Steele stopped talking to Miller after Miller’s brother telephoned and asked officers
not to take any further statements from him.
¶11. A Lamar County jury found Miller guilty of deliberate design murder, and the circuit
court sentenced him to life imprisonment. Miller’s conviction and sentence were affirmed
on appeal. Miller v. State, 740 So. 2d 858, 867 (¶39) (Miss. 1999). By statute, Miller is not
eligible for parole. Miss. Code Ann. § 47-7-3(1)(f) (Supp. 2019).
¶12. In 2012, the United States Supreme Court held “that mandatory life without parole
for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” Miller v. Alabama, 567 U.S. at 465
(emphasis added). As the Mississippi Supreme Court has stated, “Miller does not prohibit
sentences of life without parole.” Parker v. State, 119 So. 3d 987, 995 (¶19) (Miss. 2013).
3
Joeywas Miller’s best friend. Miller testified that earlier in the day he wanted to talk
to Joey about his problems with Aultman. However, Joey was not at home, so he went to talk
to Elliott Smith instead.
5
But it does require the sentencing authority to take into account “several factors” related to
the offender’s age before imposing such a sentence. Id.
¶13. In 2014, the Mississippi Supreme Court granted Miller leave to file a motion for postconviction relief (PCR) challenging his sentence under Miller v. Alabama. Miller filed a
PCR motion asking the trial court to re-sentence him to life imprisonment with eligibility for
parole. The trial court held an evidentiary hearing on Miller’s motion in 2018.
¶14. Miller’s mother, Teresa Hartfield, testified that Miller’s father was physically abusive
to her and her children and a serial adulterer. Nonetheless, she also testified that Miller was
close to his father and was devastated when his father left them when Miller was seven years
old. Hartfield testified that she was committed to a psychiatric facility for a time after the
separation because she was depressed and suicidal. Miller was sent to live with an aunt
during that time. Hartfield remarried when Miller was ten years old, and she testified that
her new husband was also physically and verbally abusive. Hartfield admitted that she was
combative and responsible for some of the violence in her home. Hartfield described Miller
as a good child who helped her around the house, had a part-time job, and never caused
problems. He also made good grades and was in the gifted program at school.
¶15. Miller’s aunt, Letitia Hudson, generally corroborated Hartfield’s testimony regarding
Miller’s father, stepfather, and home life. Hudson and her husband gave Miller a part-time
job at their drugstore, and they found him to be conscientious and a hard worker. Hudson
thought that Miller “needed approval and acceptance,” which he did not get at home.
¶16. Miller also called two friends who knew himprior to the murder. They both described
6
him as smart and funny and were surprised when they heard that he had killed Aultman.
¶17. Emmitt Sparkman, a former deputy commissioner for the Mississippi Department of
Corrections (MDOC), testified about Miller’s conduct during his incarceration based on a
review of Miller’s MDOC records. Sparkman testified that Miller was involved in a gang
and had a number of incidents of misconduct after he arrived at Parchman, which was “not
unusual.” However, Miller had withdrawn from the gang and had gone for ten years without
engaging in violent behavior or receiving a rule violation report, which Sparkman said was
uncommon for an inmate serving a long sentence. Sparkman also testified that Miller had
been reclassified as a “medium custody” inmate based on good conduct. Sparkman
explained that this was the lowest risk classification for an inmate serving a life-withoutparole sentence, which indicates that “the [MDOC] does not view [Miller] as a high risk
inmate.” Sparkman testified that Miller’s conduct had improved over time even though he
is ineligible for most academic and vocational programs due to his sentence.
¶18. Dr. Criss Lott, a clinical and forensic psychologist, testified about his interview and
assessment of Miller. Lott testified that at the time of the offense, Miller was a “typical”
youth, “a gifted kid,” and “a straight A student.” Lott also noted that Miller was described
as a “class clown,” who sometimes engaged in “silly,” “foolish,” or “impulsive” behavior.
Miller “did not exhibit . . . violent, aggressive behavior . . . other than, obviously, this
horrible offense.” Miller had been diagnosed with ADHD and prescribed Ritalin but was
taken off the medicine at some point. Lott thought it was “a mistake” to take him off the
medicine if it helped him with his impulse control. Lott also testified that it was “more likely
7
than not” that Miller’s home life “affected him emotionally.” Although Miller’s home was
not in conflict “seven days a week,” “maybe once a week . . . or once a month” “big
emotional blowups” would take place. Miller’s effective abandonment by his father also
impacted him negatively.
¶19. Lott opined that Miller’s crime was “impulsive” even though there was evidence that
he planned to kill Aultman and deliberated about the murder for a period of hours. Lott
noted that Miller did not have a youth court record prior to the offense. Lott also testified
about brain development generally and the relevant factors under Miller v. Alabama. Lott
opined that Miller was capable of rehabilitation and was not the sort of permanently
incorrigible offender who should be sentenced to life without parole.
¶20. At the conclusion of the hearing, Miller read a prepared statement. He expressed
regret for the murder and apologized to the Aultman family. He told the judge that he was
a different person than when he committed the murder, he maintained that he was capable
of rehabilitation, and he asked for a chance at parole.
¶21. Following the evidentiary hearing, the judge issued an opinion analyzing the Miller
factors and finding that Miller was not entitled to a new sentence. The judge’s ruling is
discussed in more detail below. Miller filed a notice of appeal.
ANALYSIS
¶22. On appeal, Miller argues that (1) the circuit judge violated Miller’s constitutional
rights by denying relief without specifically finding that he is “permanently incorrigible”; (2)
the circuit judge applied incorrect legal standards; (3) before Miller can be sentenced to life
8
without parole, a jury must find beyond a reasonable doubt that he is “permanently
incorrigible”; (4) the circuit judge erred by requiring Miller to prove that he was entitled to
relief under Miller v. Alabama; (5) the circuit judge abused his discretion by denying relief;
and (6) a sentence of life without parole is unconstitutional in all cases in which the offender
was under the age of eighteen at the time of the offense.
¶23. In a series of recent decisions, the Mississippi Supreme Court and this Court have
rejected arguments (1),4
(3),5
(4),6
and (6).7 Therefore, this case requires no new discussion
of those issues. We address Miller’s remaining contentions that the circuit judge applied
4
“[I]n Montgomery [v. Louisiana, 136 S. Ct. 718 (2016)], the [United States Supreme
Court] specifically stated that ‘Miller did not require trial courts to make a finding of fact
regarding a child’s incorrigibility’ and that ‘Miller did not impose a formal factfinding
requirement.’” Cook v. State, 242 So. 3d 865, 876 (¶39) (Miss. Ct. App. 2017) (quoting
Montgomery, 136 S. Ct. at 735), cert. denied, 237 So. 2d 1269 (Miss. 2018), cert. denied,
139 S. Ct. 787 (2019); accord McGilberry v. State, 292 So. 3d 199, 206-07 (¶¶30-31) (Miss.
2020); Wharton v. State, No. 2017-CT-00441-SCT, 2019 WL 6605871, at *4 (¶25) (Miss.
Dec. 5, 2019); Chandler v. State, 242 So. 3d 65, 69 (¶15) (Miss. 2018), cert. denied, 139 S.
Ct. 790 (2019); Jones v. State, No. 285 So. 3d 626, 632 (¶17) (Miss. Ct. App. 2017), cert.
granted, 250 So. 3d 1269 (Miss. 2018), cert. dismissed, No. 2015-CT-00899-SCT, 2018 WL
10700848 (Miss. Nov. 29, 2018), cert. granted, 140 S. Ct. 1293 (2020). The United States
Supreme Court recently granted certiorari in Jonesto decide whether the Eighth Amendment
to the United States Constitution requires a finding that a juvenile offender is “permanently
incorrigible” before a life-without-parole sentence can be imposed. Miller filed a motion to
stay this case until the United States Supreme Court issues its decision in Jones. Miller’s
motion to stay is denied. This case was briefed, argued, and submitted for decision prior to
the grant of certiorari in Jones, which has not yet been briefed or argued in the United States
Supreme Court. Miller may continue to raise this issue in a motion for rehearing.
5 McGilberry, 292 So. 3d at 206-07 (¶¶30-32); Wharton, 2019 WL 6605871, at *3
(¶19); Cook, 242 So. 3d at 876 (¶¶38-40).
6 Wharton, 2019 WL 6605871, at *4-5 (¶¶25-26); Cook, 242 So. 3d at 873 (¶25).
7 McGilberry, 292 So. 3d at 205-06 (¶¶25-27); Cook, 242 So. 3d at 877-78 (¶45).
9
incorrect legal standards (i.e., misapplied Miller v. Alabama) and abused his discretion by
denying relief. We combine our discussion of these two closely related issues.
¶24. In Miller v. Alabama, the United States Supreme Court held that the Eighth
Amendment to the United States Constitution prohibits the “mandatory” imposition of a lifewithout-parole sentence if the offender was under the age of eighteen at the time of his
offense. Miller, 567 U.S. at 465. “Miller does not prohibit sentences of life without parole.”
Parker, 119 So. 3d at 995 (¶19). But it does require the judge “to take into account how
children are different, and howthose differences counsel against irrevocablysentencing them
to a lifetime in prison.” Id. (quoting Miller, 567 U.S. at 480). Miller also identified several
factors that a judge must consider:
Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents
taking into account the familyand home environment that surrounds him—and
from which he cannot usually extricate himself—no matter how brutal or
dysfunctional. It neglects the circumstances ofthe homicide offense, including
the extent of his participation in the conduct and the way familial and peer
pressures may have affected him. Indeed, it ignores that he might have been
charged and convicted of a lesser offense if not for incompetencies associated
with youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys. And finally, this mandatory punishment disregards the possibility
of rehabilitation even when the circumstances most suggest it.
Id. at 995-96 (¶19) (citations omitted) (quoting Miller, 567 U.S. at 477-78).
¶25. The burden is on the offender to convince the judge that the Miller factors collectively
prohibit a sentence of life without the possibility of parole. Wharton, 2019 WL 6605871, at
*4 (¶25). “If the offender persuades the judge that the Miller factors preponderate in favor
10
of parole eligibility, then the judge must declare the offender parole eligible.” Cook, 242 So.
3d at 873 (¶27). “If, however, the judge determines that Miller does not mandate parole
eligibility, then the judge must deny relief because the Legislature has provided by law that
persons convicted of murder are not eligible for parole.” Id. at 873-74 (¶27); see also
Stromas v. State, 618 So. 2d 116, 123 (Miss. 1993) (“It is the [L]egislature’s prerogative, and
not this Court’s, to set the length of sentences.”).
¶26. “[T]here are two applicable standards of review in a Miller case. First, whether the
trial court applied the correct legal standard is a question of law subject to de novo review.”
Chandler, 242 So. 3d at 68 (¶7). Second, “[i]f the trial court applied the proper legal
standard, its sentencing decision is reviewed for an abuse of discretion.” Id. In short, “the
judge in a Miller case is bound to consider and apply [the Miller] factors in a non-arbitrary
fashion.” Cook, 242 So. 3d at 873 (¶27).
¶27. In this case, Miller was afforded a full and fair evidentiary hearing. He was
represented by two skilled attorneys, and he had expert testimony froma clinical and forensic
psychologist and a former deputy commissioner ofthe MDOC. Furthermore, the judge made
detailed findings of fact addressing the Miller factors in support of his decision.
¶28. Miller was fourteen years and seven months old when he killed Aultman. Dr. Lott
described him as a “typical” fourteen-year-old in terms of maturity, but the judge found that
other evidence indicated a somewhat higher degree of maturity. For example, Miller was a
dependable worker at his part-time job, he was allowed to drive his family’s van, he kept the
nursery at his church, and he took on other responsibilities at home. The judge found that
11
“[t]he factor of immaturity did not weigh in favor of granting the relief requested,” and we
find no manifest error or abuse of discretion in this finding.
¶29. The judge also found that there was no evidence that the murder was an impulsive or
impetuous act.8
As the judge noted, there was substantial evidence that Miller planned the
murder in advance. He sought out Smith earlier in the day and discussed his problems with
Aultman. Miller said to Smith that he was considering killing Aultman, though Smith did
not think that Miller was serious. Miller also discussed how he might hide or get away after
the murder. Miller then went looking for Aultman, taking a loaded shotgun with him. He
found her and drew her out to the side of his van, where he had left the shotgun. When
Aultman again told Miller that she had a new boyfriend and wanted Miller to “leave [her]
alone,” Miller picked up the shotgun, pointed the gun at Aultman’s face at close range, and
pulled the trigger. Finally, the note that Miller wrote (see supra ¶9) indicates advance
8 The dissent asserts “that the trial judge failed to properly consider Dr. Lott’s medical
evidence and testimony . . . pertaining to the impulsiveness of Miller’s actions at the time of
the offense.” Post at ¶46. The dissent also claims that “the trial judge[] . . . failed to consider
the evidence of Miller’s untreated ADHD at the time of the offense relative to the
impulsiveness of his actions.” Id. However, the judge specifically addressed Dr. Lott’s
testimony and opinions at several points in the court’s detailed findings of fact and
conclusions of law. The judge also specifically discussed that Miller had stopped taking
Ritalin for his ADHD about six months prior to the crime, as well as his mother’s testimony
that “he became more easily angered” after he stopped taking Ritalin. The judge simply
found that there was no evidence that Miller acted impetuously or impulsively when he
murdered Aultman. The judge’s factual finding is supported by substantial evidence that
Miller planned the killing in advance, discussed his plans with a friend, and even wrote a
letter to another friend disclosing his plan to murder Aultman. The fact that Miller had
ADHD or may have had some impulsive tendencies does not necessarily show that the
murder was impulsive. The judge considered all of the relevant evidence, including Dr.
Lott’s testimony and Miller’s ADHD diagnosis. The dissent’s narrow critique of the circuit
judge’s thorough opinion does not identify any reversible error.
12
planning and deliberation on his part. While Miller claimed that the note was written after
the murder, its language and the testimony of Deputy Roseberry contradict that claim. In
addition, the trial jury found Miller guilty of deliberate design murder, rejecting his
contention that the killing was only manslaughter. In short, there is substantial evidence to
support the judge’s finding that the murder was planned, not impulsive.
¶30. The judge next found that Miller appreciated the risks and consequences of his actions
and that his youth did not adversely affect him after he was arrested and charged. The judge
found that Miller had used the shotgun before and clearly understood its purpose as a deadly
weapon. Law enforcement did not interrogate Miller, and the facts of the murder were
largely undisputed. The State did not offer a manslaughter plea deal, and Miller made an
informed decision to go to trial on the hope that the jury would find him guilty of
manslaughter instead of murder.
¶31. The judge acknowledged that Miller had a troubled home life, including a father who
was abusive and then abandoned him and a stepfather who was verbally abusive. The judge
also considered Dr. Lott’s testimony that those issues could have adversely affected Miller.
However, the judge found that Miller was a good student, a good worker, and an otherwise
seemingly normal teenager despite his issues at home. The judge found that Miller’s home
life was similar to that of the offender in Jones, supra, another case in which the trial judge
denied relief under Miller v. Alabama and this Court affirmed on appeal. See Jones, 285 So.
3d at 630, 634 (¶¶7-10, 22).
¶32. Importantly, the judge found that there was no evidence that family or peer pressure
played any role in Miller’s decision to murder Aultman. Miller suggested at trial and in his
13
interview with Dr. Lott that his friend, Elliott Smith, somehow encouraged the killing.
However, Smith’s trial testimony contradicted that claim. The evidence supports the trial
judge’s finding that Miller made the decision to murder Aultman all by himself and without
any encouragement from anyone else.
¶33. Finally, as to the possibility of rehabilitation, the judge considered and discussed the
testimony of Dr. Lott, Sparkman, and Miller’s mother, aunt, and friends. Citing Hudspeth
v. State, 179 So. 3d 1226, 1228 (¶10) (Miss. Ct. App. 2015), the judge also acknowledged
that he lacked “clairvoyance” regarding Miller’s capacity for rehabilitation. See also Cook,
242 So. 3d at 873 (¶26) (“[T]he United States Supreme Court has given the sentencing judge
in a Miller case a difficult, if not impossible, task.”). However, after considering all of the
evidence presented, the judge did not find that the possibility of rehabilitation weighed in
favor of granting a new sentence in this case.
¶34. Having reviewed the judge’s detailed opinion and findings, we cannot say that the
judge committed any abuse of discretion. The judge afforded Miller a full and fair
evidentiary hearing, the judge applied the proper legal standard by considering each of the
Miller factors, and he rendered a decision based on those factors that was neither arbitrary
nor capricious.
¶35. Miller also argues that the circuit judge applied an incorrect legal standard by
requiring Miller to prove that he would not re-offend if released from prison rather than
properly applying the Miller factors. Miller points to comments that the judge made during
the hearing about the likelihood that Miller would re-offend. Miller also cites the judge’s
statement that he lacked “clairvoyance” regarding Miller’s capacity for rehabilitation. We
14
disagree with Miller’s contention. We review the judge’s written ruling and findings of fact,
not isolated comments made before the close of the evidence. Cf. Hill v. Hinds County, 237
So. 3d 838, 844 (¶21) (Miss. Ct. App. 2017) (“Mississippi’s longstanding rule is that a
court’s written decision trumps its oral one.”). In addition, the judge in Hudspeth, supra,
made the same candid comment about his lack of “clairvoyance.” This honest concession
does not indicate that the judge failed to apply the Miller factors. Rather, the judge’s written
ruling shows that he considered this factor and the relevant evidence, as required by Miller.
¶36. Finally, Miller advances a series of related arguments that the circuit judge applied
an incorrect legal standard because he failed to recognize that each of the Miller factors
should weigh in favor of parole eligibility in all or the vast majority of Miller cases. Again,
we disagree with Miller’s characterization of the circuit judge’s ruling. The judge fairly
considered the evidence presented that was relevant to each of the Miller factors. Miller
simply disagrees with the weight and relative importance that the judge assigned to the
relevant evidence and factors in his case. As stated above, the judge’s ultimate decision was
not an abuse of discretion.
CONCLUSION
¶37. The circuit judge applied the correct legal standards and did not err or otherwise abuse
his discretion by finding that Miller was not entitled to relief under Miller v. Alabama.
Miller’s remaining arguments are foreclosed by precedent of the Mississippi Supreme Court
and this Court.

Outcome: AFFIRMED

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