"Like Wine, Your Memory Improves With Age"

Miller admitted that he had testified hundreds of times. He had prepared for his testimony by reading the transcript of his first statement to Sonoma County Detective Lorenzo Duenas, taped about six hours after the shootings. He also reviewed his later statement to Duenas of April 18, and listened to his pocket tape and possibly the radio dispatcher's tape of the incident, which included the timing of each call. He had visited the scene twice at the request of investigators. He had discussed his testimony in advance with Williams, but said he had never read any reports about the incident.

Miller said he had never worked with Davis before the incident, had never driven the vehicle before, had never been to the scene before, and had never fired Davis' M-16 before. There was "a certain newness" to his situation, as Serra phrased it. The two officers had between them two pistols, two rifles and a shotgun. Miller admitted this was more armament than two normal officers would have, but "neither Davis nor myself were normal officers." The flashlight Davis carried had 20,000 candlepower, and if you were facing it in the dark from 25 ft. away, "you couldn't see past it." Serra: Did Acorn Peters turn toward that light? Miller: Yes.

After a recess Serra pointed out that Miller had testified he had not returned to the scene except twice, and that he had in fact gone there another time with D.A.'s investigator Scott Warnock and a metal-detector operator to search for shell casings. Miller said that he now remembered the third visit; that the mention of metal detector had triggered his recall.

Serra pursued the theme of Miller's improved memory of things he had previously not known. Only recently had he remembered the words Acorn Peters said when Davis ordered him to drop his gun. He had just testified that he consciously turned on his pocket recorder to make a record in case of his death, but hours after the incident said he didn't know how it got turned on. He testified that he saw two subjects coming up the road right from the start, but in his first statement to Duenas he said he saw only one, even when Duenas explicitly asked him if he had seen the second subject at the time of the first gunfire. "So," said Serra, "like wine your memory improves with age?" Miller said that ever since the events, whenever his mind is not on some task, the events of that night replay in his mind, and that he had remembered things he had forgotten.

Serra asked if Miller and Davis had information that the suspect they were looking for was armed and dangerous, and Miller replied yes. Asked if that meant they could shoot him if he had a gun, Miller said only if he's threatening to shoot somebody. Miller said Davis told him Arylis Peters might be at, or trying to reach, the Lincoln home in Little Valley.

Hiding was the next subject. Miller admitted that the he drove the last part of his approach to the hilltop with the car lights off so as not to be seen, and that for the same reason the two deputies had not used any light when they took a short walk after arriving, but he repeatedly denied that the reason he backed the vehicle off the road onto the fire trail was to hide. He insisted he parked there only "because it was a good place to park." He admitted, however, that they wanted to take Arylis Peters by surprise.

Next Serra turned to the question of light and dark. Serra: Was it dark? Miller: Yes it was night. Serra: Were there trees? Miller: Yes, there were small trees and brush. There was a canopy of trees over the intersection where they parked. Some of the road was in the shadow of trees. The full moon was not overhead, but was more on the other side of the ridge. Miller couldn't estimate the angle of elevation of the moon.

[In fact it was low in the southeast, and the action took place on the top and the west side of the north-south ridge. The reason for the questions about hiding and visibility is the prosecution claim that the scene was brightly moonlit by the full moon, that the police vehicle was marked and in plain view, and therefore that Lincoln and Peters must have seen it and knew they were dealing with law enforcement officers, not armed Brittons.]

Serra asked Miller to point out on a photo the location where he first saw two heads. Miller could not do so, saying he had no frame of reference in the photo. He said there was some distance between the two, and the one to the right was further away. Did both heads have hats on? Yes. Are you sure? Yes. Have you ever before said so? No one ever asked. Were both subjects lit up by Davis' light? No, just one. Have you ever said two were lit up? No, I was just concentrating on the man with the gun.

Serra: Officer I'm going to ask you a serious question. Isn't it a fact that you and Davis fired on Peters without having been fired upon at all by anyone? Miller: No.

Serra: Isn't it a fact you went after a suspect that you believed was down the road in order to kill that suspect because you believed that he was a witness to your killing of Peters? Miller: No.

Serra: Isn't that the reason that you went down the road instead of going off allegedly to hide behind the embankment? Miller: No.

Serra: You never hid behind the embankment, did you? Miller: We never reached it.

Serra: You told the jury earlier you didn't get that far. You walked right by where you said you were going to hide; walked past the body and then fell, isn't that what occurred? Miller: What is the question?

Serra: My question is: you never even attempted to go hide and put yourself in a secure position; you were going down the road to kill a suspect? Miller: No.

Serra: You thought you got him, didn't you? You heard him groan? Miller: I told Officer Davis I thought I got him, but that was in reference to Mr. Peters who I fired at in the first firefight.

Serra: Didn't you hear the subject down the road groan, or words to that effect? Miller: Yes, I did.

Serra: Didn't you think that was a consequence of your firing and hitting him? Miller: I didn't think about it at the time.

Serra: Didn't you say he fell, he groaned? Miller: He fell and groaned?

Serra: Yeah or words to that effect; the silhouette down the road after you shot fell and groaned? Miller: No, I said I heard groaning down the road. I didn't say anything about falling.

Serra: (Serra refers to transcript) You said, "I heard some groaning or something." Miller: Yes.

Serra: Did you believe that was coming from the silhouette? Miller: I believed it was coming from the suspect.

Serra: But you didn't form an opinion then why he groaned? Miller: No, I didn't, but that's what I heard.

Serra: Now, before, in the first firefight ... would there have been enough time, in your estimation, for him to have walked or run, to have get all the way to Little Valley in the vicinity of the gate, and back? Miller: Officer Davis?

Serra: Yes. Miller: No.

Serra: When you fell off the road and got back up, would there have been time then for him to have gone all the way down to Little Valley, to the gate, and come back? Miller: No sir.

Serra: Do you know, did you see that there was a blood trail from the vicinity of Officer Davis all the way down the road; maybe a spatter every 20 ft.; all the way to the gate, such blood being attributed -- at least one spot thereof -- to Officer Davis? Miller: Did I see that?

Serra: OK, one: did you see it? Miller: No.

Serra: Two: are you familiar with that line of evidence? Miller: Well, I was told a few days ago that there was blood samples attributed, possibly attributed, to Officer Davis. I don't know how much it's based on (unintelligible). This night in question, I did not see any blood. I smelled blood, I did not see any blood.

Serra: (paraphrase) There's a series of drop, drop, drop, drop, 'til it gets down to the gate. Do you, based on your perception, have any explanation for how that trail of blood could have come from Davis? Miller: No.

Serra: Isn't this a fact: based on what you've told us, it couldn't have come from Davis while you were there? Miller: No.

Serra: But Davis was out of your sight in the first instance only 4 or 5 seconds, and secondly, when you fell, for a fraction of a second? Miller: Correct.

Serra: So there's no time under your testimony for him to go all the way down to Little Valley dripping blood is there? Miller: No.

Serra: And if that occurred you would have no explanation, if we proved that the blood spots go all the way down there, you'd have no explanation for it, would you? Miller: Well, I could theorize.

Serra: Sir, based on what you say you saw, it's not what you'd suspect is it? Miller: No.