State v. James Ethan Mills

• Court: Ohio Court of Appeals
• Writing for the Court: PER CURIAM
• Decision Date: 01 December 1990
• Docket Number: C-880581,90-LW-3179
• Citation: State v. James Ethan Mills, 90-LW-3179, C-880581 (Ohio App. Dec 01, 1990)
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. JAMES ETHAN MILLS, Defendant-Appellant APPEAL TRIAL NOS. B-882581, B-883213

STATE OF OHIO, Plaintiff-Appellee, v. JAMES ETHAN MILLS, Defendant-Appellant

TRIAL NOS. B-882581, B-883213

No. C-880581. Judgment affirmed, 62 Ohio St. 3d 357 (1991)

90-LW-3179 (1st)

Court of Appeals of Ohio, First District Hamilton

December 12, 1990

Criminal Appeal From Hamilton County Court of Common Pleas

ATTY Arthur M. Ney, Jr., prosecuting Attorney, and Christian J Schaefer, Esq., 411 Hamilton County Courthouse, Court and Main Streets, Cincinnati, Ohio 45202, for Plaintiff-Appellee.

ATTY H. Fred Hoefle, Esq., and Kenneth J. Koenig, Esq., 1500 American Building, 30 East Central Parkway, Cincinnati, Ohio 45202, for Defendant-Appellant.

DECISION

PER CURIAM

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the transcript of the proceedings, the assignments of error, and the briefs and arguments of counsel.

On May 26, 1988, the grand jury returned a seven-count indictment (B-882581) against defendant-appellant James Ethan Mills. Count one stated a charge of aggravated murder, R.C. 2903.01 with inter alia, a death-penalty specification for causing the death of one Marsha Burger while committing an aggravated robbery on May 23, 1988, at a bank in St. Bernard, Ohio. count two contained a charge of aggravated robbery, R.C. 2911.01, with two specifications. Mills was also charged with two counts of attempted aggravated murder, R.C. 2923.02 (counts three and four), and three counts of felonious assault, R.C. 2903.11 (counts five, six, and seven), all as a result of the St. Bernard robbery.

On June 13, 1988, the grand jury returned a separate indictment (B-883213) charging Mills with the aggravated robbery of a Bond Hill bank on February 10, 1988, and specifying the use of a firearm.

Various preliminary motions were heard and resolved as follows: Mills's motion to sever the trial of the Bond Hill robbery from the remaining charges was denied and the state's request for joinder of the indictments was granted; Mills's motions to suppress certain inculpatory statements made to police officers, to suppress physical evidence gained pursuant to & search warrant, to strike the capital specifications, and to grant a change of venue were denied. Mills's jury trial under the consolidated indictments began on August 15, 1988, and the first phase culminated on September 1, 1988, with the return of guilty verdicts on all counts and specifications. At the mitigation hearing, Mills gave an unsworn statement. He did not, however, request a pre-sentence investigation or a mental examination. No witnesses testified.

On September 2, 1988, the jury found beyond a reasonable doubt that the specified aggravating circumstance of the aggravated murder outweighed the mitigating factors and recommended the imposition of the death penalty. The trial court adopted that recommendation and sentenced Mills to death, setting forth its findings and conclusions in the sentencing opinion required by R.C. 2929.03(F). In addition to the death sentence for count one of the May 26 indictment, the following sentences were imposed: for count two, imprisonment for fifteen to twenty-five years, with three additional years of actual incarceration; for count three, imprisonment for seven to twenty-five years; for count four, imprisonment for a term identical to that of count three; for count five, imprisonment for twelve to fifteen years, with twelve years of actual incarceration; for counts six and seven, imprisonment for terms identical to that of count five; and for count one of the June 13 indictment, imprisonment for fifteen to twenty-five years, with three additional years of actual incarceration.

In this appeal, Mills advances thirty-two assignments of error. Sixteen assignments concern either pretrial matters or the guilt phase of the trial; eleven concern the penalty phase. The remaining five assignments' of error deal with claims of ineffective assistance of trial counsel.

The issues raised by the guilt-phase assignments include:

(A) whether the two separate indictments were properly joined for trial;

(B) whether there was sufficient evidence to identify Mills and to convict him on the charges of attempted aggravated murder and felonious assault;

(C) whether the attempted-aggravated-murder charges improperly identified the victims;

(D) whether physical evidence and statements obtained at the time of arrest were properly admitted into evidence;

(E) whether the jury which found Mills guilty and recommended the death sentence was properly constituted;

(F) whether the trial court properly denied Mills's requests for written jury interrogatories, for an extraordinary number of peremptory challenges, and for a change of venue;

(G) whether tape recorded witness statements were improperly denied to the defense; and

(H) whether the trial court improperly permitted use of Mills's prior criminal convictions at trial.

Mills raises the following issues in his assignments of error dealing with the penalty phase of the trial:

(A) whether the trial court or the prosecutor erred in discussing mitigating factors not raised by Mills in the penalty phase, in failing to provide clear instructions regarding parole, or in attenuating the jury's sentencing responsibility;

(B) whether the sentence of death was constitutional; and

(C) whether Ohio's statutory scheme for imposing the death sentence is constitutional.

We find no merit in any of the thirty-two assignments of error given to us for review. And having completed the other tasks mandated by law in the review of a capital case, we are persuaded, for the reasons that follow, that the aggravating circumstance of Marsha Burger's homicide outweighs the mitigating factors beyond a reasonable doubt, and that the sentence of death is appropriate in this case. The judgment of conviction entered in the trial court is, accordingly, affirmed.

I.

On February 10, 1988, Mills and two accomplices, Lewis Thomas and Michael Bryant, committed a robbery at the Bond Hill branch of the First Ohio Savings Bank. After assaulting several bank employees, the three escaped with $90,000.

On May 23, 1988, Mills and Thomas, armed with a handgun and an automatic rifle, committed another robbery at the St. Bernard branch of the same bank. While Thomas kept a lookout for the police, Mills fired one shot into a counter behind which three bank tellers crouched. After vaulting over the counter, he held his handgun to the head of teller Sonya Laster and ordered her to open the safe. When Laster was unable to comply, teller Marsha Burger procured the combination, came to Laster's assistance, and opened the vault. Only deposit slips were inside; there was no cash.

Alerted by a silent alarm, police officers from St. Bernard and Cincinnati assembled outside the bank, which prompted the lookout to signal that it was "time to go." Mills's first response was to move toward the exit, but instead of leaving, he turned and walked to Marsha Burger, who had by then sought cover behind her desk. Mills raised his gun and shot the kneeling Burger once in the chest from a range of twelve to eighteen inches. The bullet pierced her right lung, severed her aorta, and exited from her lower back. She bled to death within minutes.

Mills and Thomas exchanged gunfire with police officers in the bank's parking lot and escaped. Both were apprehended later that day.

II.

Our analysis of Mills's assignments of error begins with those issues arising primarily either from the pretrial proceedings or from the guilt phase of the trial.

A.

In his twenty-ninth assignment of error, Mills argues that the trial court erred by joining the two separate indictments for trial. Mills objected to the joinder prior to trial and moved for a severance of the indictments, under Crim. R. 14, arguing that the cumulative effect of the evidence alone would improperly lead to a conviction, and that the three-month hiatus between the two bank robberies militated against joinder. We find no error in the court's ruling pursuant to Crim. R. 8(A), offenses may properly be joined at the trial of one defendant if the offenses are of the same or similar character, or if they are based on two or more acts constituting a common scheme, plan, or course of criminal conduct.

Before we may disturb the trial court's joinder and refusal to separate the offenses, we must find prejudice to Mills and an abuse of the trial court's discretion. State v. Torres (1981), 66 Ohio St. 2d 340, 421 N.E.2d 1288. "Abuse of discretion" is manifested by an attitude that is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 404 N.E. 2d 144.

In this case, the offenses -- all involving robberies of branches of the same bank -- were committed under similar circumstances. The evidence used to prosecute the offenses --especially the identification and accomplice testimony -- showed common planning and preparation for the two robberies. See State v. Hamblin (1988), 37 Ohio St. 3d 153, 158, 524 N.E.2d 476, 481.

Despite the temporal separation between the two robberies, the state presented evidence upon which the trial court reasonably concluded that the offenses were part of a common course of criminal activity. See, e.g., State v. Harvill (1984), 15 Ohio App. 3d 94, 472 N.E.2d 743 (multiple robberies over three-month period joined); State v. North (Sept. 20, 1989), Hamilton App. No. C-880436, unreported (two counts of theft eleven months apart joined).

Our review of the record, in view of the ample evidence of a common scheme and course of conduct, does not reveal any attitude by the trial court that was unreasonable, arbitrary or unconscionable. We cannot, therefore,...