State v. Wilford Berry
| Decision Date | 21 October 1993 |
| Docket Number | 93-LW-5100,60531 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. WILFORD BERRY, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Criminal appeal from Common Pleas Court Case No. CR-247,418.
For Plaintiff-appellee: Karen L. Johnson, Assistant Prosecuting Attorney,The Justice Center, 1200 Ontario Street,Cleveland Ohio 44113.
For defendant-appellant: Cynthia A. Yost, Randy D. Ashburn Assistant State Public Defenders, Ohio Public Defender Commission, 8 East Long Street - 11th Floor, Columbus, Ohio 43266-0587.
Wilford Berry appeals his convict ions for aggravated murder with death penalty and firearm specifications, aggravated robbery with a firearm specification and aggravated burglary with a firearm specification. For the reasons set forth below, we affirm.
Wilford Berry's convictions and death sentence stem from the December 2, 1989 shooting death of Charles Mitroff. Police found Mitroff's body buried under a bridge at E. 49th Street and Chad Avenue in Cleveland. An autopsy disclosed Mitroff died from gunshot wounds to the head and torso. Cuyahoga County coroner Robert Challener retrieved a .22 caliber bullet from the head wound. The coroner opined the massive injuries to the chest were caused by a high-velocity bullet.
The victim's wife, Barbara Mitroff, testified that her husband left home at 11:20 p.m., December 1, 1989, to make deliveries from the family's bakery on Fleet Avenue. At 6:00 the next morning, customers began phoning Mrs. Mitroff to complain they had not received their baked goods. Mrs. Mitroff telephoned police who met her and employee Christina Blaut at the bakery where they found undelivered baked goods, recently mopped floors and a reddish residue in a bucket. Mrs. Mitroff told police her husband recently hired a man named "Ed Thompson" to wash the pans and the floors. On December 3, 1989, Thompson" phoned Mrs. Mitroff and explained he reported for work at midnight on November 30 but left after waiting outside for her husband for thirty minutes.
Patrolman Charles Vorhees of the Kenton County, Kentucky police department testified he observed a van at midnight, December 4, 1989 weaving and slowing down at intersections. Suspecting the driver was intoxicated, Vorhees followed the van. The officer noticed the van had the type of Ohio license plates appropriate for a passenger vehicle although the van appeared to be designed for commercial deliveries. The officer radioed in the license plate numbers and learned the tags belonged to a station wagon. He also observed the occupants leaning over as if placing something under the front seat.
The officer stopped the van and, as he approached the driver, Vorhees noticed the Chevrolet emblems, windows and lights were oversprayed with black paint. The driver told Vorhees his name was "Ed Thompson" but he was unable to present a driver's license. "Thompson" provided Vorhees with a purported birthdate and social security number but Ohio had no record of a driver's license issued with this information. The passenger identified himself as Anthony Lozar.
Vorhees instructed the men to leave the vehicle. As Lozar opened the door, the officer observed the butt of a rifle sticking out from under the front seat. Vorhees then ordered the men to the ground and handcuffed them. When Officer Vorhees went back to the van to secure the weapon, he noticed a bag of marijuana and a rifle case protruding from under a sleeping bag. The officer opened the case and discovered a weapon which he described as a "Chinese assault weapon." Finally, Vorhees noticed a red substance which appeared to be blood on the van step.
Vorhees testified he read the men their Miranda rights and issued citations to Thompson and Lozar for carrying concealed weapons, possession of marijuana, improper vehicle registration and driving without a license. The officer then transported the men to the Kenton County police station where the driver eventually identified himself as Wilford Berry. Vorhees subsequently rewrote the citations under the name Wilford Berry. Vorhees also learned the van was registered to Charles' Bakery in Cleveland. Cleveland police were notified of the van's location and of the arrest of Berry and Lozar. Later that day, police located Mitroff's body.
Kenton County deputy jailer Mark Carter escorted Berry to a court appearance on December 13, 1989. According to Carter, Berry appeared uncomfortable and was mumbling. The jailer asked Berry what was bothering him and Berry stated he and his partner shot a man in a Cleveland bakery. Berry claimed they shot the man in the head and stomach, carried him to the bakery van and drove to a wooded area to bury the body. Berry further explained that they drove to a car wash and cleaned the blood from the van. The jailer asked whether Berry killed the man. Berry replied "Yes, I did."
After the court appearance, Berry returned to his jail cell where other inmates began to complain that Berry was bragging about a murder. When jailer Michael Moran removed Berry from the cell, Berry again claimed he killed a man in Cleveland. Berry also indicated there was blood on his tennis shoes. The jailers confiscated the shoes and informed Kenton County police detective Matthew Rolfsen of Berry's admissions.
Rolfsen interviewed Berry who provided more details of the murder. Berry stated he began planning to kill Mitroff about ten hours before the murder. He purchased the assault rifle and a .22 caliber rifle and hid them in an alley next to the bakery entrance. After Mitroff left the bakery to begin making deliveries, Berry let Lozar into the bakery. When Mitroff returned, Lozar fired the assault rifle striking Mitroff in the chest. Mitroff fell to the floor bleeding. He asked for help from Berry who then shot Mitroff in the head with the .22 rifle. Berry stated he knew Mitroff was dying after the first shot and one more shot would kill him. Berry and Lozar cleaned the bakery floor and put Mitroff's body into the van. The men drove to Lozar's sister's house and obtained a shovel. Before burying the body, the men removed the victim's wallet. They then drove to a car wash, cleaned the van and left behind the shovel and other items from the vehicle. Later the men purchased black spray paint and painted the van.
Cleveland police detective Samuel Reese contacted Patrick Montgomery, the owner of the American Pride Car Wash. Montgomery gave police a shovel, a pair of boots and a piece of fiberboard found in a car wash bay on the morning of December 2. Montgomery testified the bay floor contained reddish water and he observed blood on the fiberboard.
Cleveland police detective James Yonkers averred that a shell casing found on the bakery floor was fired from the assault rifle found in the van. Linda Luke of the coroner's office confirmed that blood found in the van, on Berry's shoes and on the fiberboard was consistent with Mitroff's blood. Lozar's brother-in-law testified that the shovel found at the car wash belonged to him. Finally, Ronald McCann stated he lives near E. 49th Street and, after police contacted him, he discovered the license plates on his vehicle had been replaced with plates belonging to the Charles' Bakery van.
Based upon this evidence, the jury found Berry guilty of aggravated murder with the death penalty and firearm specifications, aggravated robbery and aggravated burglary. The case then proceeded to the mitigation phase of the trial.
Berry's mother, Ginny Franklin, testified that as a child Berry was cross-eyed and had a speech impediment. He also suffered from epileptic seizures. Berry ran away from home at age 14 and spent. time at Boys Village, a facility for boys with behavioral and mental problems. Franklin also claimed Berry was the victim of sexual advances from a man in the Big Brothers program. Franklin told the jury that when Berry was 13 or 15 he returned home one night without any clothes and she feared he had been sexually abused. According to Franklin, her son suffered from nightmares and told her of a "lady in black" in his dreams. Her son also believed evil spirits were trying to hurt him. Franklin testified her husband left home the year after Berry's birth. Franklin stated that she later learned her husband was schizophrenic and had been hospitalized in a mental health institution. Franklin admitted some involvement with the occult. Finally, Franklin testified Berry cut his wrists while in a Texas prison.
Elaine Quigley, Berry's sister, testified her brother often heard voices and was pursued by the "lady in black." According to Quigley, her brother's speech impediment was so bad as a child that only she could really understand him. Quigley also testified that her father suffered from a mental illness and, according to his family, he was diagnosed at 16 to have a disease which would result in a slow deterioration of the brain. Quigley explained that Berry briefly stayed with her after his return from California in November, 1989. During this time, Berry got the job at Charles' Bakery. Quigley stated she then told her brother that, sometime in the past, Charles Mitroff almost hit her and her child with his van.
Ralph Buterbaugh, a psychologist at Boys Village, evaluated Berry in March, 1978. He concluded Berry was "seriously severely unstable" and "showed a marked lack of coping skills." The psychologist noted that Berry had schizoid symptoms and "a very high hostility level" with a "strong acting-out potential" which corroborated his mother's fear that he might someday kill someone. In explaining the term schizoid, Buterbaugh stated that it described a condition between a normal thought process and schizophrenia. As a result of the examination the...
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