Miller on the Stand

Miller was sent to Covelo in response to the Britton homicide. He paired up with Davis, and the two went to the junction of Henderson Lane and Little Valley Road "to set up a surveillance point." Their mission was to "interdict" vehicles going between Little Valley and Round Valley, to try to catch the suspect in the Gene Britton homicide, and to prevent further bloodshed between the feuding families. They stopped a pickup driven by Lucille Lincoln, Bear's mother, who told them she had dropped off the murder suspect Arylis Peters at a house on the reservation. The two deputies joined others in a fruitless search of the house.

They returned to their first location, but soon decided to move their surveillance point up Little Valley Road to an intersection with a fire trail at the summit of the ridge. The sun had set. They drove the last 100 yards to the top with their headlights off to avoid being seen, and it was bright enough to see the road by the rising moon. Miller was driving, and he backed their vehicle onto the intersecting ridgetop fire trail, where they could watch Little Valley Road from the vehicle, because it was cold.

Before radioing their location, both officers left the car and walked down Little Valley Road a short way to "secure the area" (check for danger to themselves). Miller had never been there before but Davis knew the area well, pointing out the Lincoln homes in the valley below.

Davis said in a loud voice, "Put the gun down. Sheriff's Department, drop the gun," about three times. Miller saw the person raise his rifle to his shoulder just prior to Davis lighting him up and ordering him to drop the gun. The person responded, "Fuck you, drop your gun." Miller believes the person fired first, that he saw a muzzle blast of flame from a rifle, and that Davis returned fire with his 9mm pistol a split second later. Miller fired three shots with his 9mm pistol almost at the same time, then lost sight of the subject and of Davis. After a split second he saw another muzzle blast from the same area and fired four more pistol shots.

Then all was quiet: Miller could not see Davis, who also didn't respond when Miller called his name. Miller crawled into the patrol car and made his first radio call since arriving at the hilltop, "11-99 on the ridge." (Miller explained that 11-99 is "a worst case scenario call for backup," and means the officer is in trouble.) Miller grabbed the M-16 Davis had brought and chambered a round. The M-16 is a .223 caliber military assault rifle capable of fully automatic fire, like a machine gun. He got back out of the vehicle. "It was dead quiet."

After a few seconds, he heard Davis "low crawl" around the back of the vehicle to a point next to the left rear tire. Miller made a second 11-99 call from his portable radio, because he thought the main radio might be on the wrong channel. He did a "peek-over" the hood of the vehicle and saw the "first subject" lying on his back in the roadway with his feet in a downhill direction and a rifle across his chest.

Davis said he thought he had been hit and Miller made another 11-99 call, adding a request for an ambulance. He broke off that transmission when Davis said "hold it," and Miller heard the sound of movement to the right rear of the vehicle. It was the sound of a person walking, with twigs breaking and brush moving, and not like the sound of a deer or wild pig. Davis was pointing his pistol toward the rear of the vehicle.

At a recess, after the jury was out of the courtroom, Judge Golden had the court reporter read back each instance when Miller had said the word subject or subjects, and determined that he had used the plural form each of two instances. This is a crucial point because of the discrepancy between Miller's first statement to authorities when he said there was only one subject seen prior to the first gunfire.

Miller told Davis he heard movement and thought they were being flanked. Miller had a pocket tape recorder in his jacket, and he started recording at that point because he thought they might both be killed, and it would provide evidence. Miller told Davis he thought he "got" the first subject, and Davis said he thought he did too. When Davis said he thought he had been hit he shined his flashlight on his chest, stomach and thigh area, but Miller said, "Get your light off me," fearing the other suspect would shoot again. Miller saw no wound on Davis.

"We decided to move for cover." Before moving Miller made another radio call, saying, "11-99, shots fired, subject in the brush." Miller said he had seen the head of the second subject at first, and had heard sounds in the brush after the first man was down. About three or four minutes elapsed between the last shot fired and the two deputies leaving the cover of their vehicle. Both moved toward the front left of their vehicle, Miller said, intending to cross Little Valley Road and take cover among some small oaks growing below a drop-off next to the road.

As they started moving, Miller was first, and then Davis came up on his right. Davis said, "I'm going to move down the road; cover me." He started moving and Miller said, "Got you covered." They were side by side as they came upon the body of the first subject. Davis said, "Step around him." Miller said, "Leave him like he is." Davis said, "I just want to make sure he doesn't jam us." Miller said he stepped around the body and moved on past doing the "SWAT shuffle," stepping sideways while pointing the M-16 down the road. He was covering the direction they were traveling and also the brush-covered hillside above them to the right. Davis was on the right side of the body, between it and the hillside above. Davis was reaching down with his knee bent. Miller continued five or six feet past the body. He told Davis to "go," because he felt very uncomfortable in the exposed position.

As Miller started to move on he got a glimpse of movement further down and on the right side of the road. The same moment gunfire came from there. He saw one or two muzzle blasts -- he thought two -- and felt concussion. Miller said to Davis, "Get down!" He fired a four or five round automatic burst towards the shooter and fell off the road. "I yelled, fired, and fell," said Miller. He did not fire the M-16 on semi-automatic at all that night.

"As I was falling, I felt a number of objects strike my right side, real hard, real stinging." This was while he was being fired on. "I had stepped off the edge of the roadway, and I was falling to my left, and I just fell off the berm of the roadway. I fell down, hit the berm, rolled, and came back up." Miller marked the spot where he fell on an exhibit photo taken from a helicopter. He heard at least one round of gunfire when he fell, at least one more when he was rolling and getting back up. "As I came back up there was a muzzle blast and then I opened fire." This was at a point to the left of where the earlier muzzle blast was. "When I came back up I was facing the roadway; I was looking across the roadway at the location; Officer Davis was to my right." Miller saw no one in the area where the shots came from.

Davis had been hit, and was crouched down with his feet under him, then fell backward. Miller marked the position on the photograph where a red stain was visible. Davis fell over backward on the side of the road with his head in the direction of the patrol vehicle. He was breathing heavily and groaning, and started making a gurgling sound. Miller started to move toward him, then heard a sound in the bushes down the road to the left. He heard someone breathing heavily and some groaning, "but mainly like a person has run a mile and is trying to catch his breath." There was one shot from that direction. "I fired a burst toward it, and heard movement off through the brush to the left." Then it was quiet.

The 44-second tape begins with 7 seconds of background noise before Miller says, "I think I got him, he went down," and Davis replies. Five seconds later Miller says, "Get your light off me!" There is an eight second interval of heavy breathing, followed by Davis saying, "I'm going to move down the road; you cover me?" Miller immediately responds "Got you covered." Four seconds later as they reach the body of Acorn Peters, Miller says, "Leave him where he is." Davis immediately responds, "I just want to make sure he doesn't jam us." Miller immediately says what sounds like, "Go zig." The final seven seconds of the tape contain more heavy breathing, a distant siren, then some faint sounds which have been identified as semiautomatic gunfire, followed by what might be the words, "get down," immediately followed by what could be a six-round burst of automatic gunfire, with the tape ending simultaneously with the sixth shot.

Miller said the heavy breathing was his, and that he had been "highly adrenalized." Continuing his account, Miller said after he saw that Davis was down he called on his portable radio, "11-99, officer down, get medical aid up here quick." When the first vehicles arrived, he heard the voice of Officers Tom Allman and Jason Craver. Miller answered and told them Davis was down and there was another suspect in the brush. Miller's calm and controlled courtroom demeanor finally yielded to emotion as he told of seeing Officer Craver cradle Davis' head in his arms, and his voice became choked. As Craver and Allman began pulling Davis toward the vehicles, Miller heard movement down the road and fired off the last of the M-16's ammunition. He called to Allman for more, and Allman brought two 20-round clips, joining Miller in the brush below the road.