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08/30/85 GREGORY MILLS, v. STATE OF FLORIDA,
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2] GREGORY MILLS, Appellant,
v.
[3] STATE OF FLORIDA, Appellee
[4] No. 59,140
[5] 476 So. 2d 172, 10 Fla. Law W. 498
[6] August 30, 1985
[7] An Appeal from the Circuit Court in and for Seminole County, J. William
Woodson, Judge - Case No. 79-653CFB
[8] Rehearing Denied October 14, 1985.
BLUE BOOK CITATION FORM: 1985.FL.2049 (http://www.versuslaw.com)
[9] APPELLATE PANEL:
[10] Alderman, Ehrlich and Shaw, JJ., concur. Boyd, C.J., concurs with an
opinion, in which Adkins and Alderman, JJ., concur. Overton, J. concurs with
an opinion. McDonald, J., concurs in result only.
[11] PER CURIAM DECISION
[12] 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.
[13] 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.
[14] 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.
[15] 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.
[16] 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.
[17] 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.
[18] 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.
[19] A. Homicide Conviction
[20] 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.
[21] 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 trial. The present case is
entirely different. Here, the public defender represented Ashley in
connection with unrelated charges. As soon a 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.
[22] 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).
[23] 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.
[24] 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 (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.
[25] Furthermore, this case does not involve a total preclusion of the
opportunity to show possible bias on the part of the witness 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 statement 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.
[26] 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 residue 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.
[27] 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 P.2d 836 (1979);
State v. Ulrich ; 187 Mont. 347, 609 P.2d 1218 (1980); State v. Journey, 201
Neb. 607, 271 N.W.2d 320 (1978); Commonwealth v. Sangricco, 475 Pa. 179, 379
A.2d 1342 (1977).
[28] The neutron activation analysis does not conclusively establish whether
the subject has recently fired a gun. The test result is admissible in
evidence despite this inherent inconclusiveness. State v. Spencer, 298 Minn.
456, 216 N.W.2d 131 (1974). It is relevant because it shows a probability
that the subject did or did not fire a gun, and its probative value is for
the jury to determine. Therefore, Mills' contention is without merit.
[29] B. Other Convictions and Sentences
[30] 1. Aggravated Battery
[31] Mills also claims that his conviction of aggravated battery is invalid
because aggravated battery is a lesser included offense of first-degree
murder. This Court has recently visited the subject of lesser included
offenses in such cases as State v. Enmund, 476 So.2d 165 (Fla. 1985), State
v. Baker, 456 So.2d 419 (Fla. 1984), and State v. Gibson, 452 So.2d 553
(Fla. 1984). After analyzing the pertinent statutes, we disagree with Mills'
claim.
[32] Mills' indictment charged him with one count of felony murder
(subsection 782.04(1), Florida Statutes (1979)), one count of burglary while
armed with a firearm (subsections 810.02(1), 810.02(2)(a), 810.02(2)(b),
Florida Statutes (1979)), and one count of aggravated battery with a firearm
(subsection 784.045(1)(b), Florida Statutes (1979)). The elements of felony
murder are (1) the unlawful killing of (2) a human being by (3) a person
engaged in the perpetration of, or in the attempt to perpetrate, (4) a
specified felony. The elements of the aggravated battery charged against
Mills, on the other hand, are (1) use of a deadly weapon (2) during
commission of a battery. It is possible to commit each of these crimes
without committing the other, and each contains elements which the other
does not. Baker. Aggravated battery is, therefore, not a lesser included
offense of felony murder. Even so, we do not believe it proper to convict a
person for aggravated battery and simultaneously for homicide as a result of
one shot gun blast. In this limited context the felonious conduct merged
into one criminal act. We do not believe that the legislature intended dual
convictions for both homicide and the lethal act that caused the homicide
without causing additional injury to another person or property. Hence we
vacate the sentence and conviction for aggravated battery.
[33] 2. Burglary
[34] The state charged Mills with and the jury convicted him of first-degree
felony murder with burglary being the underlying felony. In State v. Enmund,
476 So.2d 165 (Fla. 1985), we held that the underlying felony is not a
necessarily lesser included offense of felony murder. See Baker; Bell v.
State, 437 So.2d 1057 (Fla. 1983). We therefore affirm both the conviction
of and sentence for burglary.
[35] C. Death Sentence
[36] We come not to consideration of the sentence phase of the trial and the
sentence of death imposed on Mills. His counsel dutifully challenges the
constitutionality of Florida's capital felony sentencing law, but the
arguments raised have previously been resolved against Mills in Proffitt v.
Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976).
[37] After the presentation of evidence and argument at the sentencing
hearing, the jury recommended a sentence of life imprisonment. The court
ordered and considered a presentence investigation. After receipt and
disclosure of the presentence investigation, the court heard further
presentations from the parties regarding the appropriate sentence.
[38] The court declined to follow the recommendation of the jury and
sentenced Mills to death, finding the existence of six aggravating
circumstances: 1) under sentence of imprisonment; 2) previous conviction of
violent felony; 3) great risk of death to many persons; 4) felony murder; 5)
pecuniary gain; and 6) heinous, atrocious, or cruel. The court found that no
mitigating circumstances had been established. Mills now claims that the
court found improper aggravating circumstances, failed to consider certain
mitigating evidence, and failed to give appropriate consideration to the
jury's recommendation of life imprisonment.
[39] Because Mills was on parole at the time of the crime, the finding that
he was under sentence of imprisonment was appropriate. Peek v. State, 395
So.2d 492 (Fla. 1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68
L.Ed.2d 342 (1981). Also, documentary evidence demonstrated Mills' previous
conviction of aggravated assault, a felony involving the use or threat of
violence to the person. The finding that Mills knowingly created a great
risk of death to many persons was, as the state contends, erroneous. Kampff
v. State 371 So.2d 1007 (Fla. 1979).
[40] Mills argues that the factor of the murder having been committed in the
course of a burglary should not have been considered in his case since it
was submitted to the jury on the theory of felony murder. He contends that
to submit this aggravating circumstance to the jury in a felony-murder case
renders a finding of aggravation automatic. This, he argues, violated eighth
amendment principles of proportionality because under this practice a person
found guilty of felony murder is more likely to receive a death sentence
than a person found guilty of premeditated murder. See State v. Oliver, 302
N.C. 28, 274 S.E.2d 183 (1981); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551
(1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980).
This contention is without merit. The legislative determination that a
first-degree murder that occurs in the course of another dangerous felony is
an aggravated capital felony is reasonable. State v. Dixon, 283 So.2d 1
(Fla. 1973), cert. denied, 416 U.S. 943, 94 S. Ct. 1951, 40 L. Ed. 2d 295
(1974).
[41] However, the court erred in finding as a separate aggravating
circumstance that the capital felony was committed for pecuniary gain. The
aggravating factors that the capital felony was committed in the course of a
burglary and that it was committed for pecuniary gain are in this situation
both based on the same aspect of the criminal episode and should therefore
have been considered as a single aggravating circumstance. Maggard v. State,
399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S. Ct. 610, 70 L. Ed.
2d 598 (1981); Provence v. State, 337 So.2d 783 (Fla. 1976), cert. denied,
431 U.S. 969, 97 S. Ct. 2929, 53 L. Ed. 2d 1065 (1977).
[42] Mills also argues that the court erred in finding that the capital
felony was especially heinous, atrocious, or cruel. He asserts there was not
infliction of excessive physical or mental suffering. In making an analysis
whether the homicide was especially heinous, atrocious and cruel, we must of
necessity look to the act itself that brought about the death. It is part of
the analysis mandated by section 921.141(1), Florida Statutes which provides
for a separate proceeding on the issue of the penalty to be enforced and
"evidence may be presented as to any matter that the court deems relevant to
the nature of the crime and the character of the defendant." In this case
the death instrumentality was a .410 shotgun fired at close range. Whether
death is immediate or whether the victim lingers and suffers is pure
fortuity. The intent and method employed by the wrongdoers is what needs to
be examined. The same factual situation was presented in Teffeteller v.
State, 439 So.2d 840 where this Court set aside the trial court's finding
that the murder was heinous, atrocious and cruel.
[43] The criminal act that ultimately caused death was a single sudden shot
from a shotgun. The fact that the victim lived for a couple of hours in
undoubted pain and knew that he was facing imminent death, horrible as this
prospect may have been, does not set this senseless murder apart from the
norm of capital felonies.
[44] We cannot reconcile the Court's decision in Teffeteller with the
present one. Thus the finding of especially heinous, atrocious or cruel must
fail.
[45] With regard to mitigating circumstances, Mills argues that the court
erred in not finding that he had no significant history of prior criminal
activity. The judge relied on a presentence investigation showing that Mills
had over thirty arrests and that he had been incarcerated numerous times.
Thus, the evidence negated this statutory mitigating circumstances.
[46] Mills also claims that the trial court erred by failing to recognize
his youthful age as a statutory mitigating circumstance. This contention is
without merit. Mills was twenty-two at the time of the crime. In Peek v.
State, 395 So.2d at 498, we said:
[47] There is no per se rule which pinpoints a particular age as an
automatic factor in mitigation. The propriety of a finding with respect to
this circumstance depends upon the evidence adduced at trial and at the
sentence hearing.
[48] Therefore, the trial court was not required to find a mitigating
circumstance based on youth.
[49] We conclude that the court's finding that there were no mitigating
circumstances was correct. Because there were no mitigating circumstances,
we find that the court's erroneous finding of two statutory aggravating
circumstances was harmless and did not impair the sentencing process.
[50] Mills contends that the court erred in sentencing him to death after
receiving the jury's recommendation that he be sentenced to life
imprisonment. A jury's recommendation of life should be accorded 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. See Tedder v. State, 322 So.2d 908 (Fla. 1975).
[51] 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 that 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.
[52] Mills' convictions and sentences of death and for burglary are
affirmed; the conviction and sentence for aggravated battery is vacated.
[53] It is so ordered.
[54] AS TO CONVICTION:
[55] ALDERMAN, EHRLICH and SHAW, JJ., concur
[56] BOYD, C.J., concurs with an opinion, in which ADKINS and ALDERMAN, JJ.,
concur
[57] OVERTON, J., concurs with an opinion
[58] McDONALD, J., concurs in result only
[59] AS TO SENTENCE:
[60] ALDERMAN, EHRLICH and SHAW, JJ., concur
[61] BOYD, C.J., concurs with an opinion, in which ADKINS and ALDERMAN, JJ.,
concur
[62] OVERTON, J., dissents with an opinion
[63] McDONALD, J., dissents with an opinion
[64] ADKINS, J., concurs in result only
IN AGREEMENT
[65] BOYD, C.J., concurring.
[66] I concur with the conviction and death sentence. I further would hold
that the trial judge was correct in finding this homicide especially
heinous, atrocious and cruel. Mills entered the victim's home in the middle
of the night. The victim was awakened by strange sounds to find an intruder
in his home. Unlike the victim in Maggard v. State, Mr. Wright was aware
that he had been shot and did not die quickly. His death from the .410
shotgun blast fired at close range was slow and painful. The medical
examiner testified that the cause of death was loss of blood. The victim's
pain and suffering in conjunction with the crimes being committed in the
victim's home in the middle of the night set this crime apart from the norm
of capital felonies. See Breedlove v. State, 413 So.2d 1 (Fla.), cert.
denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982).
[67] ADKINS and ALDERMAN, JJ., concur
[68] MINORITY OPINION
[69] OVERTON, J., concurring in part, dissenting in part.
[70] I concur with the conviction of first-degree murder. I find aggravated
battery to be a lesser offense of first-degree murder and concur that the
legislature did not intend dual convictions for the same lethal act.
[71] I dissent from the holding that the underlying felony is not a lesser
included offense of first-degree felony murder. I also dissent from the
imposition of the death penalty, finding the jury recommendation of life
should have been followed for the reasons expressed by Justice McDonald in
his dissent.
[72] McDONALD, J., concurring in part/dissenting in part.
[73] I dissent only from the affirmance of the death sentence. Were it not
for the jury's recommendation, I would have little difficulty in upholding
the death sentence. Valid aggravating circumstances existed, and the defense
established the existence of no statutory mitigating circumstances.
[74] The jury, however, recommended life imprisonment. In such instances we
have stated that "the facts suggesting a sentence of death should be so
clear and convincing that virtually no reasonable person could differ."
Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). We should, therefore,
review Mills' sentence in light of Tedder.
[75] The jury's recommendation must have been predicated on the
circumstances of this homicide and on non-statutory mitigating evidence. The
chief testimony against Mills came from Ashley. As previously indicated,
Ashley received immunity from prosecution for this crime and other crimes in
exchange for his testimony. Ashley said that Mills did the killing, but
Mills has always denied this. The jury could have found the evidence
sufficient to convict but still have had doubts about whether Mills intended
to kill the victim. It could also have concluded that Mills and Ashley were
being treated so disparately when their involvement was substantially the
same that any such doubt should be weighed in Mills' favor. Mills was
employed at the time of the crime and his employer though well of him. Mills
had a harsh and deprived youth, but his grandmother and sister were
supportive of him. During prior incarceration he completed studies to the
extent that he passed his G.E.D. tests.
[76] Are these circumstances, considered collectively, adequate to find that
reasonable persons could recommend life imprisonment? I think so. As
previously indicated, adequate and reasonable grounds existed for the trial
judge to impose death. For the death penalty to prevail when there is a jury
recommendation of life, however, more than a disagreement with a jury's
recommendation must be shown. "he facts suggesting a sentence of death
should be so clear and convincing that virtually no reasonable person could
differ." Id. This is a difficult test, and it has not been met in this case.

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1985.FL.2049