582 N.E.2d 972 (Ohio 1992), 91-172, State v. Mills

Docket Nº:91-172.
Citation:582 N.E.2d 972, 62 Ohio St.3d 357
Opinion Judge:WRIGHT, J.
Party Name:The STATE of Ohio, Appellee, v. MILLS, Appellant.
Attorney:Arthur M. Ney, Jr., Pros. Atty., and Christian J. Schaefer, Cincinnati, for appellee. Arthur M. Ney, Jr., Prosecuting Attorney, and Christian J. Schaefer, Cincinnati, for appellee., H. Fred Hoefle and Kenneth J. Koenig,Cincinnati, for appellant.
Case Date:January 08, 1992
Court:Supreme Court of Ohio

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582 N.E.2d 972 (Ohio 1992)

62 Ohio St.3d 357

The STATE of Ohio, Appellee,


MILLS, Appellant.

No. 91-172.

Supreme Court of Ohio.

January 8, 1992

Submitted Oct. 15, 1991.

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On May 23, 1988, at about 10:56 a.m., two armed men entered the St. Bernard branch of the First Ohio Savings Bank in Cincinnati. One robber guarded the front entrance and acted as a lookout. The other gunman, who was wearing a stocking mask, fired a shot that hit the counter in front of two tellers. That gunman then jumped over the counter and issued demands to various bank employees.

One teller, Michael Johnson, was struck on the head with a hard object, and feigned unconsciousness. Kathyrn Kamphaus, a teller who was standing in the desk area, saw the masked gunman with his right hand raised, heard the shot, and immediately dropped down under the desk. Sonya Laster, a third teller, saw the gunman fire a shot and then jump over the counter. The gunman grabbed Laster, held his gun to her head, and commanded her to open a nearby safe.

Laster, not knowing the safe's combination, pleaded with the head teller, Marsha Burger, to open the safe. Burger opened the safe and said, "see, see, there's nothing in there." As the gunman started to walk toward the bank's [62 Ohio St.3d 358] entrance, Burger hid behind her desk. Then the gunman turned around, walked back, and shot Burger once in the chest, killing her.

Outside the bank, Patrolman James Heller had arrived. He heard a gunshot and saw James Ethan Mills, defendant-appellant, leave the bank. Mills fired a shot and Heller fired two shots in return. Heller then saw an approximately six-foot tall, heavier suspect leave the bank, holding an automatic weapon. Mills then ran down the sidewalk and into a parking lot, and Heller fired at him. In turn, Mills pursued Heller.

Police Officer Schindler arrived to assist Heller. When Schindler arrived, he heard shots and saw a black, armed, male suspect chasing Heller. Schindler fired two shots at this suspect. The suspect then turned and aimed his gun at Schindler; Schindler responded by firing another two shots. The suspect then ran through the parking lot, and Schindler ran after him. The suspect kept turning around and aiming his gun at Schindler, and Schindler kept ducking behind cars so that the suspect could not get a clear shot. After the suspect reached and drove away in a black Camaro, Schindler radioed the Camaro's license plate number to police headquarters. Schindler then ran out to the street and

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shot directly at the Camaro as it drove by him. He returned to his cruiser and began to chase the Camaro, but gave up and went back to help Heller.

Three bystanders saw the gunfight between Mills and the policemen in the parking lot. Two of them saw Mills remove his mask temporarily, and all three identified Mills as the gunman.

Another bystander, Donald Tobergte, saw a police officer chasing a black man. Then, a black Camaro pulled out of the lot, just missing Tobergte's truck. Tobergte wrote down the Camaro's license plate number as "253 QJR" and gave it to a police officer. A black Camaro registered in Mills's name bears license plate number 253 RQJ.

At about 12:10 p.m., a police dog found the lookout, Lewis Thomas, hiding in shrubbery near Interstate 75, not far from the robbery. Alongside Interstate 75, police also found a rapid-fire Luger with a cartridge case holding thirty bullets. Apparently, the Luger had not been fired and no other evidence indicates that Thomas fired any shots that day. Witnesses identified Thomas, who stood six-feet tall, as one of the robbers, and he was tried separately from Mills.

Technicians removed film from the bank camera and developed a series of one hundred sixty-seven photographs, two taken every second, depicting the entire robbery. One photograph shows the masked gunman leaning over Burger with his gun at the time that he shot her. Police discovered a shoeprint on the bank counter. An expert on shoeprints concluded, with [62 Ohio St.3d 359] reasonable scientific certainty, that the shoeprint was made by a tennis shoe belonging to Mills.

Within minutes of the robbery, police found Mills's black Z-28 Camaro, license plate number 253 RQJ, at Thomas's address, 810 North Crescent Avenue. The car's engine was still warm and the radiator appeared to have been pierced by a bullet. Police found Thomas's and Mills's fingerprints on the car. Inside the trunk of the car, police found a briefcase containing a stocking fashioned into a cap or mask. Police arrested Mills at about 3:00 p.m. that afternoon.

While in custody, Mills made various statements to police officers. Mills claimed that Thomas falsely implicated him in the St. Bernard robbery. Mills also muttered in the presence of Deputy Sheriff Roy Simpson, who fingerprinted him, "she didn't give me what I wanted." In a separate conversation, Police Officer Robert Hennekes told Mills that the evidence against him was compelling and asked why he had committed the crimes. Mills responded, "there ain't no mitigating circumstances, I just shot the * * * bitch." Mills denies making the latter two statements and claims that he repeatedly asked for a lawyer.

In addition to the St. Bernard robbery, Mills was also tried for robbing the Bond Hill branch of the First Ohio Savings Bank in February 1988. The evidence showed that Thomas, Mills, and Michael Bryant participated in that robbery. Outside the bank, Mills and Bryant approached a bank employee, and Bryant stabbed the employee in the back. Mills, holding a revolver, then forced the employee back into the bank. A teller at Bond Hill testified that Mills grabbed her by the arm, pushed her to the floor, and put a gun to her left temple. She got a direct view of Mills when he lifted his mask, and identified him as the robber. Mills escaped with approximately $90,000, which was split equally among Mills, Thomas and Bryant.

On the morning of May 23, 1988, Thomas and Mills asked Bryant to help rob the St. Bernard branch. Bryant refused, saying, "no, I ain't going, that's right by the police station."

At trial, Mills denied that he was involved in either the Bond Hill or St. Bernard robberies. Mills explained the stocking cap in his briefcase as a cap used for hair treatment. He did not explain the bullet hole in his car's radiator, except to suggest that the radiator depicted in the state's exhibit was not his. He admitted on direct examination that a court convicted him in 1969 and 1975 for bank robbery, that Thomas was a codefendant in the 1975

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conviction, and that they served time in federal prison together and were friends. [62 Ohio St.3d 360]

Mills called various witnesses who testified as to his whereabouts from about 11:00 a.m. that morning until 3:00 p.m., when he was arrested. Yvonne McDaniel, Mills's sister, testified that her neighbor had said Mills was at McDaniel's house at 11:00 a.m. on the morning of the robbery. However, the neighbor testified that he did not see Mills until approximately 11:45 a.m.

On September 1, 1988, a jury convicted Mills of aggravated murder, with a robbery-murder death specification and a gun specification (count one), aggravated robbery (count two), two counts of attempted aggravated murder (counts three and four), and three counts of felonious assault (five, six and seven). The jury also convicted him of the Bond Hill aggravated robbery, which was charged in a separate indictment but consolidated for trial. In addition, counts two through seven of the first indictment and the second indictment all carried gun specifications and prior offense specifications. Mills was also convicted of these specifications.

The sentencing hearing was held on September 2, 1988. James Mills gave an unsworn statement on his own behalf and denied participating in the bank robbery-murder. He claimed he was framed by an unfair system. The only other factor mentioned in mitigation was the intelligence of the defendant. After weighing the aggravating circumstance and mitigating factors, the jury recommended the death penalty.

The trial court sentenced Mills to death for the aggravated murder and imposed terms of imprisonment for the other felonies of which he was convicted. The court of appeals affirmed the convictions and death sentence.

The cause is now before this court upon an appeal as of right.

Arthur M. Ney, Jr., Pros. Atty., and Christian J. Schaefer, Cincinnati, for appellee.

H. Fred Hoefle and Kenneth J. Koenig, Cincinnati, for appellant.

WRIGHT, Justice.

We are required by R.C. 2929.05(A) to review Mills's twenty-six propositions of law. We are also charged with making an independent review of the record to determine whether the aggravating circumstance outweighs the mitigating factors asserted beyond a reasonable doubt. Last, we must decide whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. For the reasons set forth below, we affirm the convictions, with certain exceptions, and uphold the sentence of death. [62 Ohio St.3d 361] I

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] ), 1 the form of the indictment (proposition of law nineteen), the prosecutor's failure to disclose vital evidence (proposition of law twenty-one), the court's failure to grant a change of venue (proposition of law twenty-three), the exclusion of prospective jurors that were opposed to the death penalty (proposition of law fifteen), and the court's rulings on the number...

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