Judge won’t set aside jury’s death penalty vote
A judge refused to set aside a jury’s recommendation that Everett Glenn Miller be executed for killing two Kissimmee police officers, after his attorneys argued Friday jurors were given a “defective” verdict form and instructions during the trial.
Last month, a 12-member jury unanimously recommended a judge should sentence the 48-year-old Marine Corps veteran to death for fatally shooting Sgt. Richard “Sam” Howard, 36, and Officer Matthew Baxter, 26, in 2017.
But Miller’s attorneys argued during a Friday hearing at the Osceola County Courthouse that the recommendation should be dismissed because jurors did not find any mitigating factors supporting a sentence of life imprisonment had been proven, including Miller’s military service and mental health issues.
Witnesses testified he was the “epitome of a Marine” before a downward spiral associated with post-traumatic stress disorder led him to being involuntarily committed a month before the killings.
“The jurors did not even find that Mr. Miller had served his country overseas despite the introduction of military records, the testimony of [high-ranking] officers and other veterans, and the concession of the State,” defense attorney Roseanne Eckert wrote in a motion.
Miller’s attorneys requested Circuit Judge Greg A. Tynan list individual mitigating factors in the instructions he gave to the jury and the verdict form, but he refused. Instead, jurors got a standard form that asked whether “one or more circumstances” were established. This left jurors guessing as to how they should evaluate mitigating factors, Eckert said.
She pointed to other capital cases tried in the Ninth Judicial Circuit where mitigating factors were listed, including the trial of Scott Edward Nelson, for whom more than 50 mitigating factors were listed on the verdict form.
“I agree that [the jury] could have found that Mr. Miller had the most exemplary career ever and decided that what he did in killing these two police officers outweighed his military career, but that’s not what they did,” Eckert said. “They found that mitigating factor did not exist. I think the only explanation for that is they did not understand the jury instructions.”
But prosecutors argued the jury is not required to find if a mitigating factor is proven — they’re supposed to decide if this circumstance supports a life sentence.
“I think they’ve got the right to do that,” Ocala-based State Attorney Brad King said. “And I believe it’s clear that’s what they did.”
The judge disagreed with Miller’s attorneys about the confusion, saying jurors confirmed no mitigating factors were found in their verdict when Tynan questioned them.
“I don’t believe that the jurors did not understand what a mitigating circumstance was because I repeatedly told them it could be anything in Mr. Miller’s life,” the judge said.
Tynan added it didn’t matter if jurors found no mitigating factors were proven because it’s the sentencing judge’s obligation to make an independent assessment of that evidence again before deciding Miller’s fate.
“Was there sufficient evidence to support a mitigator? If there is, I have to assign a weight to it,” Tynan said. “It doesn’t matter if they found none, if they found them all. I have the absolute right to disagree with anything they found or didn’t find.”
Miller did not speak at Friday’s hearing, but blew kisses to his family as he was led out of the courtroom. He was found guilty of first-degree murder after prosecutors argued Miller was motivated by his hatred of police when he fatally shot Baxter and Howard the night of Aug. 18, 2017.
Baxter was conducting a routine check on three people near Cypress and Palmway streets when a witness said Miller suddenly drove up and argued with him for “messing with his people.”
The officer called Howard to the scene. Prosecutors say Miller ambushed the two cops after an argument, shooting each of them in the head and face.
He was later arrested at Roscoe’s, a bar on Orange Blossom Trail.
Miller’s defense will have an opportunity to argue against a death sentence at a hearing scheduled to start April 1.