State v. MillsState v. Mills
We are required by
We first address defendant’s asserted errors that arise from pretrial procedures and decisions. Defendant challenges the joinder of offenses (proposition of law twenty-five [B] ),
A
Joinder of Offenses
In proposition of law twenty-five (B), Mills argues that the Bond Hill and St. Bernard robberies were distinct events and the trial court erred by consolidating the two indictments for trial.
Under
In addition to being offenses “of the same or similar character,” these two robberies meet the “common scheme or plan” or “course of criminal conduct” tests of
Once two offenses have been joined, the defendant mаy move to sever under
In this case, the evidence of both crimes is patently both simple and direct. A teller present at the Bond Hill robbery identified Mills based on a face-to-face confrontation. The bulk of the evidence offered on this charge was from the testimony of Bryant, a coconspirator who testified that he was also asked to participate in the St. Bernard robbery.
The evidence of Mills’s role in the St. Bernard robbery is also simple and direct. The witnesses outside the bank identified the suspect who shot at the officers as Mills. The entire crime was filmed by the bank’s camera, including showing which suspect shot Marsha Burger. The shoeprint on the bank counter matched one of Mills’s gym shoes, and his car matched the description given by several witnesses. One witness even wrote down a license plate number at the scene, which was identical to Mills’s except that two letters were transposed. Finally, one of the police officers shot at the Camaro as it drove off, and a bullet hole was found in the car’s radiator after the police seized Mills’s car. The evidence makes it unlikely that the jury would confuse the two offenses, and Mills has not argued how he could have defended differently if the indictments had not been tried together. Thus, his proposition twenty-five (B) lacks merit. See State v. Lott, supra; State v. Wiles, supra.
B
Specificity in Indictment
In his nineteenth proposition of law, Mills claims that counts three and four, the two counts of attempted aggravated murder, were defective because they
C
Disclosure of Records
The twenty-first proposition of law states that the prosecutor failed to disclose vital information to which the defense was entitled under Brady v. Maryland (1963),
D
Venue
The twenty-third proposition of law urges reversal because the trial judge erred in not granting a change of venue due to extensive pretrial publicity.
Ohio law explicitly recognizes the trial court’s obligation to change venue “when it appears that a fair and impartial trial cannot be held in the court * * *.”
The trial judge conducted a week-long, extensive, individual voir dire of all prospective jurors. The рublicity that did occur was not sensational, and few jurors could remember the details of the publicity. As the state points out, none of the seated jurors equivocated on his or her ability to be impartial, and none was challenged for cause on that basis. “[A] careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.” State v. Bayless (1976),
The pretrial publicity did disclose Mills’s two prior bank robbery convictions; however, Mills introduced that evidence at trial. Under all of the circumstances, Mills has not demonstrated an abuse of discretion, and proposition twenty-three is overruled. See State v. Landrum (1990),
E
Exclusion of Jurors
The fifteenth proposition of law claims that the trial сourt improperly excluded four prospective jurors because of their general opposition to the death penalty. The proper standard for excusing such jurors “ * * * is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.” State v. Rogers (1985),
The challenged prospective jurors all expressed fixed positions from which the trial judge could conclude that their views would substantially impair their ability to serve as jurors. Hence, the trial judge did not abuse his discretion in excusing these prospective jurors. State v. Scott (1986),
F
Peremptory Challenges/Questionnaire
In proposition of law sixteen, Mills contends that the trial cоurt should have allowed him twenty-four peremptory challenges because this is a capital case and because of the pretrial publicity. However, Ohio law permits only six peremptory challenges in a death penalty case, and Mills asserts no cogent reasons why that rule should be changed. See State v. Greer (1988),
Mills further argues that the trial court’s failure to distribute a defense-proposed jury questionnaire interfered with his right to examine prospective jurors. However, the trial judge found that appellant’s questionnaire unnecessarily intruded on juror privacy rights. The trial judge had discretion to limit voir dire and did not abuse his discretion in rejecting this specific defense questionnaire. See State v. Bedford (1988),
II
Suppression of Evidence
This part of the opinion addresses defendant’s arguments that certain evidence admitted at trial should have been suppressed. Defendant claims that several of his pretrial statements (proposition of law twenty) and the evidence found during the search of his car (proposition of law twenty-two) should not have been admitted.
A
Accused’s Pretrial Statements
Proposition of law twenty challenges the trial judge’s decision to admit three pretrial oral statements. Mills claims that he repeatedly asked for an attorney on May 23, but police denied him access to counsel until the next day.
Although Mills testified that he did not receive Miranda warnings, two police officers testified that Mills was advisеd of his rights; one officer asserting that it was done more than once. Mills asserted that he asked for a lawyer “a hundred times.” Neither of the police officers recalled even one
When arrested, Mills denied the offense and asserted that Thomas falsely tried to implicate him. Later, after the officer fingerprinting Mills told another officer that Mills was one of the suspects, Mills remarked casually, “she didn’t give me what I wanted.” This remark did not respond to any form of interrogation and was thus fully admissible. Colorado v. Connelly (1987),
The crucial suppression issue concerns the admission that Mills shot someone. After a police lineup, Mills said he wanted to say something to the witnesses, and in response Police Officers Hennekes and Rowland were directed to interview him. After advising him of his rights, Hennekes told Mills that the evidence against him was compelling: “[W]e had the pictures. * * * [W]e got your car, it’s got a bullet hole in it. We got your partner. * * * We got your girlfriend. * * * [I]f there’s some mitigating circumstances or some reason * * * let me know now.” Mills “started screaming and hollering. He said, hey man, I’ve been in this shit too long, I can’t be conned. * * * [TJhere ain’t no mitigating circumstances, I just shot the * * * bitch.”
The trial judge did not believe that Mills had asked for a lawyer. At a suppression hearing, the evaluation of evidence and the credibility of witnesses are issues for the trier of fact. State v. Fanning (1982),
B
Results of Search
Mills next claims that the magistrate who authorized the search of Mills’s Camaro lacked sufficient information upon which to base a finding of probable cause.
At the outset, we reject the state’s argument that Mills abandoned the Camaro and had no standing to challenge the search of the car. At most, Mills testified that his car did not work properly and he had not driven it that day. This does not constitute abandonment. Cf. State v. Freeman (1980),
Mills relies primarily upon alleged defects in the affidavit used to secure the search warrant. Police specialist Joe Hoffmann, who prepared that affidavit,
However, police discerned that the car found at North Crescent Avenue was registered in Mills’s name from a computer registration check. In this case, the fact that the vehicle’s license plate number and physical description matched or nearly matched that of the robber’s vehicle demonstrated “ * * * a fair probability that contraband or evidence of a crime * * * ” would be found in the Camaro. Illinois v. Gates (1983),
Moreover, the police could have searched the automobile even without a warrant. The well-established automobile exception allows police to conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains contraband or other evidence that is subject to seizure, and exigent circumstances necessitate a search or seizure. Chambers v. Maroney (1970),
Three facts sustain probable cause. It was obvious that the Camaro had just been driven because it was warm. The description and license plate number of the car matched or nearly matched the description of the robber’s vehicle. Police found the car at Lewis Thomas’s residence, and he had been apprehended near the scene as one of the robbers. Together, we believe these facts justified the search even without a warrant. See United States v. McBee (C.A.5, 1981),
Ill
Trial Issues
We next consider those errors that Mills claims arose at trial. He challenges the suffiсiency of the evidence (propositions of law seventeen, eigh
A
Sufficiency of Evidence
Proposition of law twenty-four contests the sufficiency of the evidence that established Mills’s identity as the St. Bernard and Bond Hill robber. Mills argues that certain of the witnesses’s testimonies could not be believed, that the robber was masked, and that one of the witnesses saw him on television before identifying him as the robber.
In a review for sufficiency, we must construe the evidence in a light most favorable to the prosecution. The test is whether a reasonable jury, considering the evidence as so construed, could have found all essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979),
Here, the evidence was simply compelling that Mills robbed the St. Bernard branch bank. Four eyewitnesses identified Mills as the gunman. “The jurors see the witnesses and observe their demeanor. The credibility to be given to each and all * * * is for the jury.” State v. Petro (1947),
The jury also had sufficient evidence to convict Mills of the Bond Hill robbery. A teller saw Mills close up, without his mask, and identified him as the robber. His accomplice, Bryant, testified at length about Mills’s role in the crime. The jury’s responsibility was to assess the credibility of the witnesses, and, as construed in favor of the prosecution, the evidence was more than sufficient. See State v. Flonnory (1972),
The evidence emphatically supports Mills’s conviction for feloniously assaulting Johnson, since the shot almost hit Johnson. Johnson testified that the bullet “was almost directly at me. If it would probably be two inches higher it might have gotten me.” Then someone hit Johnson’s head with a hard object, and Johnson feigned unconsciousness. In view of Johnson’s proximity to the bullet, immediately followed by a hard blow to his head, the jury could find that Mills feloniously assaulted Johnson. Likewise, the evidence also supports the conviction for feloniously assaulting Laster. When Mills fired that initial shot, Laster stood approximately two to three feet to Johnson’s right and thus was not in the bullet’s path. However, Mills later held a gun directly to Laster’s head, and after Mills shot Burger, Laster believed that Mills would shoot her next.
Mills argues that “[t]he act of pointing a deadly weapon at another, without additional evidence regarding the actor’s intention, is insufficient evidence to convict a defendant of the offense of ‘felonious assault’ as defined by
However, the evidence does not support a conviction for felonious assault of Kamphaus. When the initial shot was fired, she was standing near a desk area located behind the teller counter and off to one side. She was not in the line of fire when the gunman entered and hid underneath her desk during the remainder of the robbery. The evidence is insufficient to support the finding that Mills knowingly attempted to physically harm Kamphaus.
In proposition of law eighteen, Mills argues that the evidence cannot sustain his conviction for attempted aggravated murder of officer Schindler. Mills arguеs that he aimed at Schindler, but never fired at him. Mills contends that merely aiming a firearm cannot sustain an attempted aggravated murder conviction. See State v. Brooks, supra.
B
Ineffective Assistance of Counsel
In proposition of law twenty-five (A), Mills asserts that his counsel did not provide effective assistance because he did not move to suppress certain identification testimony. According to Mills, this identification testimony was either suggested or contrived, and he had no lawyer at the lineup; thus, suppression was appropriate.
This argument fails because Mills’s attorney had no basis to move to suppress the identification testimony. First, Mills did not have a Sixth Amendment right to counsel at the time of the line-up. “The Sixth Amendment right to counsel attaches only when adversarial proceedings are initiated against an individual for a particular incident by way of indictment, information, arraignment, or preliminary hearing.” State v. Broom, supra,
A defendant does not state a claim for ineffective assistance of counsel unless his attorney acted unreasonably given the facts of the case, and the unreasonable conduct was prejudicial to the defense. Strickland v. Washington (1984),
Prior Convictions
Proposition twenty-six states that the trial court erred by allowing the prosecutor to impeach Mills’s credibility with his 1975 bank robbery conviction. Mills argues that the trial court did not find that the probative value of the evidence substantially outweighs its prejudicial effect as required by
Initially, we note that Mills did not challenge the use of this conviction at trial. The state filed a pretrial motion to give Mills notice of its intention to use his prior conviction for bank robbery in 1969. Mills’s counsel elected to defer his objection pending a decision on whether Mills would take the stand. On direct examination, Mills himself testified about his prior convictions in 1969 and 1975, and, in response, the state used the evidence to impeach his credibility during cross-examinatiоn. No objection was made at that time. Accordingly, the plain-error standard of
The 1975 bank robbery conviction is not more than ten years old as defined by
Ten years had not elapsed from any “later date” because Mills was not released from prison for the 1975 bank robbery conviction until 1983. Accordingly, the applicable standard for the use of this conviction to impeach the accused is whether the probative value of the evidence outweighs the danger of unfair prejudice.
IV
Constitutionality
In proposition of law eleven, Mills attacks the constitutionality of Ohio’s death penalty statute using a variety of arguments that we have already rejected.
In proposition of law elеven (A), Mills asserts that the death penalty serves no rational state interest. We rejected this argument in State v. Jenkins (1984),
Proposition of law eleven (C) challenges the use of the same operative fact as an element of aggravated murder and as an aggravating circumstance. This court has previously dealt with this issue. State v. Henderson (1988),
Propositions of law eleven (D) and (E) claim that Ohio’s statutory balancing process is a mandatory scheme that does not allow the jury to extend mercy if the aggravating circumstances only slightly outweigh the mitigating factors. The balancing process of
In proposition of law eleven (F), Mills asserts that Ohio’s vague standards for dismissing specifications under plea bargains unduly encourage guilty pleas, which results in the death sentence being applied in an arbitrary and capricious manner.
Finally, in proposition of law eleven (G), Mills challenges Ohio’s standards of review in death penalty cases. The statutory standards are adequate. See, e.g., State v. Scott, supra,
V
Sentencing Issues
Finally, Mills alleges several errors in the sentencing process. He claims that the prosecutor made improper comments during his sentencing argument
A
Prosecutor’s Sentencing Argument
First, the prosecutor did err by referring to statutory mitigating factors not raised by the defense, when he explained why those statutory mitigating factors were not present. State v. DePew, supra,
Mills’s second proposition of law claims that the prosecutor’s sentencing argument improperly appealed to the jury’s passions and prejudices. The argument complained of was a reference to General Patton’s speech in the movie, in which he assures his men that “when you get into battle and reach down and put your hand into a pile of goo that just a few moments ago was your best friend’s face you’ll know what to do.” Likewise, the prosecutor urged that when the members of the jury remembered the circumstances of this crime and one particular photograph, they would know what to do.
This argument was clearly improper. An appeal to the jury’s sense of outrage and sympathy for the victim is particularly troublesome when made after the jury has already determined the defendant’s guilt, and the only remaining task is to decide his fate. See State v. Bedford (1988),
Because defense counsel did not object at trial, the plain error rule controls and permits reversal only to prevent a manifest miscarriage of justice. See State v. Greer, supra;
No plain error exists. Any impropriety in the prosecutor’s argument did not materially prejudice Mills. Mills presented little or no convincing evidence
In his fourth proposition of law, Mills argues for a plain-error standard broader than that specified in State v. Long, supra. Mills suggests the test to be whether an error, “if uncorrected, would have a substantial adverse impact upon the integrity of and public confidence in judicial proceedings.” See In re M.D. (1988),
B
Question from the Jury
In his fifth proposition of law, Mills argues that the court’s refusal to answer a jury question violated his rights. While deliberating on the sentence, the jury asked: “Is there eligibility for parole in the event the death penаlty is recommended? Is there any possibility * * * that the convicted murderer could ever been \sic ] released?” The judge then instructed the jury as he had done previously: that if they found aggravating circumstances outweighed mitigating factors beyond a reasonable doubt, they must recommend death, and otherwise, they must recommend life with the appropriate periods of incarceration. The trial court then reread the verdict forms.
Mills argues that the jury should have been told that a death sentence means no possibility of release on parole, that it means death. The trial court did not err. Release on parole, other than as specified after a minimum of twenty or thirty years in a life sentence, does not relate to the specified statutory factors and is a nebulous area which the trial court may legitimately avoid. Indeed, this question required the judge to walk the same thin line as his instructions on the effect of the jury’s sentencing recommendation. As we discuss next, the judge cannot improperly suggest that the jury’s sentencing recommendation is not final, but at the same time must accurately instruct them in the law. The court’s response to this question was not error. The trial court handled this problem correctly and adeptly.
C
Sentencing Instructions
In proposition of law six, Mills argues the trial court erred by referring to twenty- or thirty-year parole eligibility without instructing that the twenty or
The judge instructed the jury that if “the prosecution has failed to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors then you must recommend a life sentence to the Court and you must further recommend either a 30-year parole eligibility or a 20-year parole eligibility.” Almost immediately after that, the judge further instructed that “[i]f you recommend a life sentence the Judge must follow your recommendation not only as to the life sentence but as to the time of parole eligibility.” This instruction is not error. It in no way suggests that the defendant will not serve the full twenty- or thirty-year sentence, nor were there any prosecutorial comments to that effect. See State v. Bedford, supra,
Appellant’s eighth proposition of law argues that the trial court’s sentencing instructions violated his Eighth Amendment rights by impermissibly diminishing the jury’s sense of responsibility. Caldwell v. Mississippi (1985),
Just as it is entirely improper for a prosecutor to make the argument that the jury’s sentencing recommendation is not final, thereby purposefully diminishing the jury’s sense of responsibility, so it is improper for a judge to make an instruction that diminishes the importance of the jury’s recommendation. However, the instruction in this case certainly did not give the jury that impression. Indeed, we commend thе trial judge for his instruction, specifically when he told the jury that “[sjimply put, you should recommend the appropriate sentence as though your recommendation will, in fact, be carried out.” This instruction is a clear and accurate instruction on the legal effect given to the jury’s sentencing verdict in a capital case. State v. Durr (1991),
D
Sentencing Opinion
In proposition of law ten, Mills argues the trial court erred in its sentencing opinion by relying upon nonstatutory aggravating circumstancés and ignoring
In his opinion, the trial judge found no mitigating factors. Mills argues that he expressed sorrow for the victim and her family, and demonstrated intelligence in his unsworn statement. However, the weight to be given mitigating evidence is left to a sentencing authority’s discretion. The judge’s ultimate finding was well within the exercise of this discretion. State v. Steffen, supra, paragraph two of the syllabus; State v. Stumpf, supra, paragraph two of the syllabus. Moreover, our independent weighing process will remedy any possible error in the trial court’s sentencing decision. State v. Lott, supra; State v. Landrum, supra; State v. Spirko, supra,
E
Proportionality
In propositions of law twelve and thirteen, Mills challenges the present structure of Ohio’s proportionality review in capital cases. This proposition lacks merit. See State v. Jenkins, supra,
F
Assistance of Counsel
In propositions of law three, seven, and nine, Mills argues that he lacked effective assistance of counsel because his attorney failed to object to the prosecutor’s closing argument at sentencing and the court’s sentencing instructions.
However, counsel’s performance is not ineffective unless it falls “below an objective standard of reasonable representation, and, in addition, prejudice arises from counsel’s performance.” State v. Bradley (1989),
Failure to object to the prosecutor’s sentencing argument did not materially prejudice Mills since Mills offered no mitigation evidence other than residual doubt. Thus, Mills was not denied effective representation at trial.
As addressed above, the sentencing instructions were proper, and consequently, defense counsel’s failure to object was not unreasonable.
VI
Independent Review
The aggravating circumstance in this case is the fact that Mills was the principal offender in a murder that was committed during an aggravated robbery.
On the other hand, Mills оffered little or nothing by way of mitigation. His unsworn statement and the comments of his attorney can be said to demonstrate Mills’s intelligence and to raise the issue of residual doubt.
We find that the aggravating circumstance outweighs the factors offered in mitigation beyond a reasonable doubt.
VII
Proportionality
The final aspect of our review is to determine whether the death sentence is appropriate in this case. We have undertaken this review and so conclude, as the death sentence is neither excessive nor disproportionate. State v. Jackson (1991),
Accordingly, appellant’s convictions, except for one count each of attempted aggravated murder and felonious assault, are affirmed. The sentence of death is affirmed.
Judgment affirmed.
Notes
. Two separate propositions of law were labeled as proposition of law twenty-five in appellant’s brief. We will refer to these propositions as proposition of law twenty-five (A) and twenty-five (B), respectively.