Mills v. Moore

• Decision Date: 12 April 2001
• Docket Number: No. SC01-338.,SC01-338.
• Citation: 786 So.2d 532
• Parties: Gregory MILLS, Petitioner, v. Michael W. MOORE, etc., Respondent.
• Court: Florida Supreme Court

786 So.2d 532

Gregory MILLS, Petitioner, v. Michael W. MOORE, etc., Respondent.

No. SC01-338.

Supreme Court of Florida.

April 12, 2001.

Todd G. Scher, Litigation Director, Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Respondent.

PER CURIAM.

Gregory Mills, a prisoner under sentence of death, petitions this Court for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. We deny Mills' petition for writ of habeas corpus for the reasons that follow.

Factual and Procedural History

In 1979, Petitioner was convicted of felony murder, aggravated battery, and burglary. The facts set forth by this Court in the opinion on direct appeal are as follows:

The evidence at the trial showed that Gregory Mills and his accomplice Vincent Ashley broke into the home of James and Margaret Wright in Sanford between two and three o'clock in the morning, intending to find something to steal. When James Wright woke up and left his bedroom to investigate, Mills shot him with a shotgun. Margaret Wright awakened in time to see one of the intruders run across her front yard to a bicycle lying under a tree. Mr. Wright died from loss of blood caused by multiple shotgun pellet wounds.

Ashley, seen riding his bicycle a few blocks from the Wright home, was stopped and detained by an officer on his way to the crime scene. Another officer saw a bicycle at the entrance to a nearby hospital emergency room, found Mills inside, and arrested him. At police headquarters officers questioned both men and conducted gunshot residue tests on them. They were then released.

At trial Mills' roommate testified that he and his girlfriend hid some shotgun shells that Mills had given them, that Mills had been carrying a firearm when he left the house the night of the murder, and that Mills had said he had shot someone. He also stated that Mills told him that a city worker had found a shotgun later shown to have fired an expended shell found near the victim's home.

After the murder, Ashley was arrested on some unrelated charges. He then learned that Mills had told his roommate and his girlfriend about the murder and that they in turn had told the police, so he decided to tell the police about the incident. Ashley testified that Mills entered the house (through a window) first, that he, Ashley, then handed the shotgun in to him, and that he then entered the house himself. Ashley saw that the man in the house had awakened and was getting up, so he exited the house and ran to his bicycle. Then he heard the shot and ran back to the house, where he saw Mills. They both departed the scene on their bicycles, taking separate routes. Ashley was granted immunity from prosecution for these crimes and also for several unrelated charges pending against him at the time he decided to confess and cooperate.

Mills testified in his defense. He said that he arrived home from work on May 24 at about 9:30 p.m. Then he went out, first to one bar, then another, playing pool and socializing. He went home afterwards but could not sleep, he said, because of a toothache and a headache, so he went to the hospital emergency room. There police officers took him into custody.

Mills v. State, 476 So.2d 172, 174-75 (Fla. 1985). After finding Mills guilty of first-degree murder, burglary, and aggravated battery, and with the knowledge that the State granted immunity to Mills' codefendant Ashley who testified against Mills, the jury recommended a sentence of life imprisonment.

Before sentencing Mills the trial court ordered and considered a presentence investigation. The trial court, the State, and Mills were provided copies of the presentence investigation report in January, 1980. In April, 1980, before sentencing, the trial court heard further presentations from the parties regarding the appropriate sentence.

At trial, the jury heard evidence of four aggravators: (1) that the crime was committed by a person under a sentence of imprisonment; (2) that Mills had a previous conviction of a violent felony (aggravated assault); (3) that the murder was committed in the course of a felony based on the contemporaneous conviction for burglary and (4) that the murder was heinous, atrocious, or cruel (HAC). After the presentence hearing, however, the trial judge found six aggravating factors, including two that were not argued by the State to the jury: (1) that the murder involved great risk of death to many persons; and (2) that the murder was committed for pecuniary gain.

On direct appeal, we struck three of the aggravators: great risk of death to many persons (State conceded it was improper); pecuniary gain (because of improper doubling based on the burglary conviction); and heinous, atrocious or cruel (because we could not reconcile this aggravator with Teffeteller v. State, 439 So.2d 840 (Fla. 1983), which was the same factual situation and in which HAC was not found). See Mills v. State, 476 So.2d 172, 178 (Fla. 1985)

. However, we affirmed the death sentence based upon the three remaining aggravators (all of which the jury considered).

We affirmed the trial court's jury override and specifically found that the jury override in this case met the requirements of Tedder v. State, 322 So.2d 908 (Fla.1975) (a jury's recommendation of life should be given great weight and should be followed unless the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ). We said:

We hold that the trial judge's findings in support of the sentence of death even without the finding of especially heinous, atrocious and cruel, meet the Tedder standard. We find that the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ. There are three valid statutory aggravating circumstances, and the trial judge has found there are no valid mitigating circumstances. The purported mitigating circumstances claimed by Mills, but not found by the trial judge, are not sufficient to outweigh the aggravating circumstances nor do they establish a reasonable basis for the jury's recommendation. We conclude that the imposition of a sentence of death after a jury recommendation of life was proper in this case.

Mills, 476 So.2d at 179.

The trial court summarily denied Mills' first petition for postconviction relief, and we reversed and remanded for evidentiary hearing. Mills v. Dugger, 559 So.2d 578 (Fla.1990). The trial court held an evidentiary hearing and again denied postconviction relief, and Mills appealed. Mills argued that trial counsel was ineffective for failure to develop and present evidence regarding statutory and nonstatutory mental health mitigators. We agreed with the trial court that trial counsel did not fall short of the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for effectiveness of counsel and said:

"A defendant's mental condition is not necessarily at issue in every criminal proceeding." Ake v. Oklahoma, 470 U.S. 68, 82, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985). None of Mills' original attorneys had any idea that his mental health might be at issue. Current counsel's getting those attorneys to admit that they would, today, routinely pursue evidence for the mental health mitigators illustrates the Supreme Court's concern "that every effort be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "That current counsel, through hindsight, would now do things differently than original counsel did is not the test for ineffectiveness." Stano v. State, 520 So.2d 278, 281 n. 5 (Fla.1988).

Mills v. State, 603 So.2d 482, 485 (Fla. 1992). Mills then petitioned for a writ of habeas corpus, which was denied on procedural grounds. Mills v. Singletary, 606 So.2d 622 (Fla.1992). He then filed a petition for a writ of habeas corpus in federal court. The Eleventh Circuit Court of Appeals presented a detailed procedural history of this case in Mills v. Singletary, 161 F.3d 1273, 1278-80 (11th Cir.1998). In short, we affirmed Mills' convictions and death sentence on direct appeal, 476 So.2d 172, denied his state habeas petition and reversal of denial of his state petition for postconviction relief, 559 So.2d 578, affirmed the second denial of his state petition for postconviction relief, 603 So.2d 482, and denied his state petition for extraordinary relief and for writ of habeas corpus, 606 So.2d 622. Thereafter, Mills sought federal habeas relief. The United States District Court for the Middle District of Florida, No. 92-1184-Civ-ORL-19, Patricia C. Fawsett, J., denied the petition. Mills appealed. Mills v. Singletary, 161 F.3d 1273 (11th Cir.1998). The Eleventh Circuit Court of Appeals affirmed the denial of federal habeas relief. Id.¹

On March 27, 2001, Mills filed the instant petition for writ of habeas corpus. Mills makes two arguments: (1) Florida's death penalty override scheme, under which Mills was sentenced to death, violates the principle espoused in the recent decision by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and therefore violates the United States and Florida constitutions; and (2) this Court's recent decision in Keen v. State, 775 So.2d 263 (Fla.2000), indicates Tedder was arbitrarily applied in this case.

The Apprendi Issue

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),² the Supreme Court announced the general rule that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id., 120 S.Ct. at 2362-63. The Court specifically stated in the majority opinion that Apprendi does not apply to already challenged...