Mills v. State
| Decision Date | 30 August 1985 |
| Docket Number | No. 59140,59140 |
| Citation | 10 Fla. L. Weekly 498,476 So.2d 172 |
| Parties | 10 Fla. L. Weekly 498 Gregory MILLS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for appellee.
This cause is before the Court on appeal from a judgment of conviction of first-degree murder, burglary, and aggravated battery. The trial court imposed a sentence of death for the first-degree murder, thereby giving this Court jurisdiction of the appeal. Art. V, § 3(b)(1), Fla. Const.
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.
On appeal Mills raises a number of legal points, several of which we shall discuss. He argues that his conviction is not supported by the evidence; that he was denied effective assistance of counsel by the fact that his counsel, the public defender's office, also represented Ashley at the outset of the case; that his right to confront witnesses was abridged when the court disallowed impeachment of Ashley by statements he had made to a public defender's investigator; that the gunshot residue test results should not have been admitted into evidence; that his conviction for aggravated battery was improper because under the facts of the case aggravated battery was a lesser included offense of the murder; and that his conviction of both murder and burglary was improper because the murder conviction was based on a felony-murder theory with burglary being the underlying felony.
Sufficient evidence supports the verdict that Mills committed the murder. It was within the province of the jury to believe Ashley, who was at the scene, and Mills' roommate, to whom Mills made an admission of guilt. Moreover, a significant amount of corroboration, including expert firearms examination evidence, existed. The specific argument Mills makes, however, is that the trial court should have granted him a new trial on the ground that the verdicts were against the weight of the evidence. This argument is without merit.
With regard to his conflict-of-interest argument, Mills relies on Foster v. State, 387 So.2d 344 (Fla.1980), in which we held the defendant's sixth amendment right had been violated where defense counsel also represented an accomplice who testified at the trial. The present case is entirely different. Here, the public defender represented Ashley in connection with unrelated charges. As soon as Ashley's involvement in the crimes of which Mills was suspected became evident, the public defender withdrew from representation of Ashley because of the possibility of a conflict of interest. Therefore, Mills' contention of ineffective assistance of counsel is without merit.
Mills argues that the court abridged his right to cross-examine the witnesses against him by refusing to allow the defense to impeach Ashley with statements he had made to a public defender's investigator. When the defense attempted to impeach by using the statements, the state objected, Ashley's own attorney was summoned, and on advice of counsel Ashley invoked the attorney-client privilege. Mills contends this violated his sixth amendment cross-examination right, relying on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
In Davis a statute requiring confidentiality in juvenile delinquency records prevented the defendant from bringing out the juvenile record and probationary status of a key state's witness for the purpose of showing possible bias. The Supreme Court held the sixth amendment had been violated and reversed the conviction. The Court reasoned that the right to confront an adverse witness outweighed the state's interest in preserving the confidentiality of adjudications of juvenile delinquency.
Davis does not require the result for which Mills argues. The Court here did not hold that the right to cross-examination always outweighs considerations of confidentiality. Id. at 321, 94 S.Ct. at 1112 (Stewart, J., concurring); see Note, Defendant v. Witness: Measuring Confrontation and Compulsory Process Rights Against Statutory Communications Privileges, 30 Stan.L.Rev. 935 (1978). Moreover, the attorney-client privilege is of broader and deeper significance than a statute relating to the confidentiality of juvenile records. The attorney-client privilege preserves the confidentiality of private communications. The privilege in question in Davis, on the other hand, was based on a policy, enacted as a statute, in favor of confidentiality for certain officially recorded adjudications. The attorney-client privilege arises in the context of a relationship having great significance for the protection of fundamental personal rights. For example, the ability to speak freely to one's attorney helps to preserve rights protected by the fifth amendment privilege against self-incrimination and the sixth amendment right to legal representation. See Note, The Attorney-Client Privilege; Fixed Rules, Balancing, and Constitutional Entitlement, 91 Harv.L.Rev. 464 (1977). Therefore, the attorney-client privilege weighs much more heavily against a defendant's cross-examination right than did the statutory exclusion at issue in Davis.
Furthermore, this case does not involve a total preclusion of the opportunity to show possible bias on the part of the witnesses as Davis did. Here the disallowed impeachment was an attempt to bring out a prior inconsistent statement Ashley made to his former counsel's investigator. However, Mills' counsel was able to confront Ashley with several prior inconsistent statements he made to police officers. Defense counsel also cross-examined Ashley about the bargain he made with the authorities whereby Ashley gained immunity not only for the crimes Mills now stands convicted of but also other, unrelated crimes. We therefore hold that the court did not abridge Mills' right to confront the witnesses against him.
Over defense objection the state presented evidence on rebuttal of the gunshot residue tests that had been performed on Mills and Ashley the morning of the murder. The tests were performed about two hours after the estimated time of the shooting, by which time, according to the state's expert, approximately 99% of the residues the test detects would have been dissipated. Ashley's test result was negative. Mills' test was positive in that it revealed the presence of antimony in an amount not to be expected on a person who had not fired a gun, although it was not enough to prove conclusively that he had done so.
Mills contends that the gunshot residue test results should not have been admitted into evidence because such tests are not scientifically accepted in general and because the tests used in this case were inconclusive and unreliable. The test in question was a neutron activation analysis which is designed to detect and measure the presence of barium and antimony on the subject's hands. Barium and antimony are rare chemical elements which are released in a cloud when a firearm is discharged. The test has attained sufficient standing among scientists to be accepted as reliable evidence in the courts. Chatom v. State, 348 So.2d 838 (Ala.1977). A majority of American jurisdictions has held the results of such tests to be admissible evidence in criminal proceedings. E.g., Keith v. State, 612 P.2d 977 (Alaska 1980); State v. Warden, 100 Idaho 21, 592...
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