State v. Berry
| Decision Date | 28 June 1995 |
| Docket Number | No. 93-2592,93-2592 |
| Parties | The STATE of Ohio, Appellee, v. BERRY, Appellant. |
| Court | Ohio Supreme Court |
SYLLABUS BY THE COURT
The term "mental illness" does not necessarily equate with the definition of legal incompetency.
Charles J. Mitroff, Jr. owned and operated Charles Bakery in Cleveland, Ohio. On November 28, 1989, Mitroff hired Wilford Berry (a.k.a. "Edward Thompson"), appellant, to wash dishes and floors at the bakery. On November 30, 1989, at approximately 11:45 p.m., Mitroff arrived at the bakery and then left to begin making deliveries to his customers. While Mitroff was gone, appellant and Anthony Lozar brought two weapons into the bakery and awaited Mitroff's return.
When Mitroff returned to the bakery, Lozar shot him once in the torso with an SKS Chinese Model 56 semi-automatic assault rifle. Appellant then shot Mitroff in the head with a sawed-off .22 caliber rifle. Appellant and Lozar placed Mitroff's body in the delivery van, removed Mitroff's wallet, and buried the body near a bridge at E. 49th Street and Chard Avenue in Cleveland. After burying the body, the men switched one of the license plates on the van with a license plate registered to a 1984 Ford station wagon. They then washed the van at a car wash and painted the van with black spray-paint.
On December 3, 1989, appellant visited his sister, Elaine L. Quigley. Quigley informed appellant that police wanted to question appellant regarding Mitroff's disappearance. Shortly thereafter, appellant and Lozar fled to Kentucky in Mitroff's van.
In the early morning hours of December 4, 1989, Patrolman Charles S. Vorhees of the Kenton County (Kentucky) Police Department observed a van being driven erratically. Vorhees suspected that the driver might be intoxicated. He observed the van weaving back and forth and slowing at intersections. He also noticed that the Ohio license plate on the van did not appear to belong on that vehicle. Vorhees radioed for information concerning the license plate number and was informed that the plate had been registered to a Ford station wagon. When Vorhees stopped the van, he observed the two occupants, appellant and Lozar, leaning over as if to place something under the front seats.
Vorhees approached the van and noticed that it had been spray-painted flat black. Vorhees asked appellant for his driver's license, but appellant was unable to produce a license. Appellant told Vorhees that his name was "Edward Thompson," and provided Vorhees with a birth date, middle name, and Social Security Number. With this information, Vorhees ran a computer check to determine whether the driver had been issued an Ohio driver's license. The computer check revealed that no person by the name of Edward Thompson had been issued a driver's license in Ohio. The passenger in the vehicle identified himself as Anthony Lozar.
Vorhees ordered both men out of the vehicle. As Lozar opened the front passenger's door, Vorhees saw the butt-end of a cut-off rifle stock sticking out from under the front passenger's seat. Vorhees drew his weapon and ordered both men to lie on the ground. He handcuffed the men and secured the .22 caliber rifle from the van. While securing the weapon, Vorhees noticed a rifle case positioned behind the front seats. Vorhees grabbed the rifle case and the weapon contained therein--an SKS Chinese Model 56 semi-automatic assault rifle. Vorhees also saw and secured a bag that appeared to contain marijuana. Further, Vorhees noticed a reddish substance on the floor of the vehicle that appeared to be blood. Forensic testing later revealed that the bloodstains in the van matched the blood of the victim.
Vorhees arrested appellant for traffic, weapon, and drug offenses. Vorhees transported appellant and Lozar to the police station, where appellant eventually identified himself as Wilford Berry. A computer check of the van's vehicle identification number revealed that the vehicle was registered to Charles Bakery in Cleveland. Then, Vorhees sent a teletype to Cleveland authorities concerning the discovery of the van. Vorhees was later informed by the Pepper Pike (Ohio) Police Department that the van and the owner of the van had been reported missing. Later that day, on December 4, 1989, Lozar confessed to police detectives and told them the location of Mitroff's body. That information led to the discovery of the body near E. 49th Street and Chard Avenue in Cleveland.
On December 13, 1989, Mark Carter, a Kenton County deputy jailer, escorted appellant to a court appearance before a Kentucky court. According to Carter, appellant appeared uncomfortable and began mumbling. Carter asked appellant what was wrong. Appellant replied that he (appellant) and another man had entered a bakery and shot someone in the stomach and forehead. Appellant told Carter about frisking the victim, obtaining the victim's keys to the van, loading the body into the van, and burying the body in a shallow grave. Appellant claimed that he and his accomplice had cleaned the van at a car wash to remove the blood from the vehicle. At that point, Carter asked whether appellant had killed the man. Appellant replied, "Yes, I did."
While appellant was attending the court appearance, inmates in appellant's jail cell began complaining that he had been bragging about a murder. After appellant returned from court, jailer Michael Moran moved appellant to a new cell. There, appellant approached Moran and stated that he (appellant) and appellant's partner were responsible for the murder in Cleveland. Appellant claimed that his shoes were still covered with the victim's blood. Moran asked for and obtained appellant's shoes. Bloodstains on the shoes were later found to match the victim's blood type. Moran called the prosecuting attorney's office to report appellant's admissions. The prosecutor's office contacted Detective Matthew Rolfsen of the Kenton County Police Department.
Detective Rolfsen interviewed appellant on December 13, 1989. Appellant chose to speak with Rolfsen after having been advised of his (appellant's) Miranda 1 rights. Appellant provided Rolfsen with the following detailed account of the murder.
Appellant began planning Mitroff's murder approximately ten hours before the killing. He obtained the .22 caliber rifle and Chinese assault rifle and hid the weapons in an alley near Charles Bakery. After Mitroff left the bakery to make deliveries, appellant and/or Lozar retrieved the weapons. Appellant handed Lozar the assault weapon and instructed him to hide in the bakery. Appellant placed the .22 caliber rifle under a counter in the bakery. When Mitroff returned to the store, Lozar shot Mitroff in the torso with the assault rifle. Mitroff fell to the floor, looked at appellant and said, "You shot me." Appellant laughed and said, Appellant knew that Mitroff was dying, and that one more shot would kill him. Mitroff begged appellant to call for help. At that point, appellant took the .22 caliber rifle from beneath the counter, walked over to Mitroff, and fired a single shot into Mitroff's head. Appellant and Lozar loaded Mitroff's body into the delivery van and attempted to thoroughly clean the murder scene. They mopped the floors, broke the mop in Cleveland police recovered the shovel, the bloodstained piece of fiberboard and other items from the American Pride Car Wash in Cleveland. The dirt on the shovel matched dirt samples taken from the location where Mitroff's body had been discovered. Lozar's brother-in-law confirmed that the shovel found at the car wash belonged to him. Bloodstains on the shovel tested positive for human blood. Additionally, blood samples taken from the piece of fiberboard were consistent with samples of the victim's blood.
half, and placed the broken mop in the garbage. Appellant knew that the garbage would be emptied that morning. Appellant and Lozar then drove the van to Lozar's sister's home to obtain a shovel. Later, they removed the victim's wallet and buried the body in a shallow grave. The men then proceeded to a car wash, where they washed the van and accidentally left the shovel, a bloody piece of fiberboard and other items. Thereafter, appellant and Lozar purchased black spray-paint and painted the vehicle before heading to Kentucky.
In December 1989, the Cuyahoga County Grand Jury indicted appellant on two separate counts for the aggravated murder of Mitroff. Count One charged appellant with purposefully, and with prior calculation and design, causing Mitroff's death. Count Two charged appellant with the purposeful killing of Mitroff during the commission of an aggravated robbery and/or aggravated burglary. Each of the two counts of aggravated murder carried two death penalty specifications: one alleging that the offense was committed during the course of an aggravated burglary (R.C. 2929.04[A] ), and the other alleging that the offense was committed during the course of an aggravated robbery (R.C. 2929.04[A] ). Appellant was also indicted on one count of aggravated robbery and one count of aggravated burglary. Additionally, each count in the indictment carried a firearm specification. 2
Appellant was tried before a jury. The jury found appellant guilty of all charges and specifications alleged in the indictment. Following a mitigation hearing, the jury recommended that appellant be sentenced to death for each of the two counts of aggravated murder. The trial court accepted the jury's recommendation and imposed a single death sentence. For the remaining offenses, appellant was sentenced in accordance with law. On appeal, the court of appeals affirmed appellant's convictions and sentences, including the sentence of death.
The cause is now before this court upon an appeal as of right.
Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Karen L. Johnson, Asst. Pros. Atty., for appellee....
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