Metropolitan News-Enterprise


Thursday, September 22, 2005


Page 1


Death Sentence Upheld in Killing of Employee of Glendale Domino’s


By KENNETH OFGANG, Staff Writer/Appellate Courts


A defendant whose confession was obtained in violation of his Miranda rights was not deprived of due process, either in the guilt or penalty phase, where the other evidence against him was overwhelming, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel upheld the denial of habeas corpus relief to Mitchell Carlton Sims, who is on Death Row for the killing of John Harrigan, who delivered a pizza to Sims and his girlfriend at the Glendale motel room where they were staying.

Rymer, writing for a divided panel, agreed with the California Supreme Court, which rejected Sims’ appeal in 1993, that any error in admitting the confession was harmless beyond a reasonable doubt.

Sims was the former manager of a Domino’s Pizza parlor in West Columbia, S.C. Witnesses said he quit because his boss had withheld part of a bonus, and that he was angry enough to tell his then-girlfriend that he wanted to use explosives to kill the boss.

Prosecutors presented evidence that Sims had killed two other Domino’s employees in South Carolina before coming to Glendale, where Harrigan was killed the night of Dec. 9, 1985.

Kory Spiroff, the assistant manager of the Domino’s testified that Sims and his girlfriend, Ruby Padgett, came in shortly before midnight; he said he recognized them because they had been in to ask for directions the day before.

According to testimony, Sims pointed a gun at another employee and ordered he and Spiroff into a back office. When Spiroff warned Sims that a delivery driver was due back at any moment, the witness testified, Sims took off his sweater to reveal a Domino’s shirt with Harrigan’s name tag and chuckled, “No, I don’t think so.”

Sims and Padgett allegedly proceeded to rob the store, with Sims pretending to be an employee when customers came in. An off-duty employee, who came in with his wife and suspected that something was amiss when Spiroff took his order as if he did not know who he was, alerted police, who found Spiroff and the other worker tied up in a cooler with ropes around their necks.

Alerted by Spiroff to the fact that the robber wore Harrigan’s shirt and name tag and that Harrigan had not returned, police went to the motel room and found Harrigan’s body in the bathtub.

Sims was later apprehended in Las Vegas.

Miranda Rights

A detective who spoke to Sims at the jail there testified that Sims was read his Miranda rights and opted to remain silent. Sims, he said, then asked for an explanation of the extradition procedure, and the officer explained the procedure before talking to him about the murder.

Sims then said, “I had to kill that boy,” because Harrigan could have identified him, and then made other incriminating statements. One of the officers then told Sims that they could not talk to him further because he had invoked his Miranda rights.

The next day, Sims advised the officers he wanted to speak with them again. He then made further incriminating statements, including references to the South Carolina murder.

The trial judge ruled that all of the statements were admissible. The state high court agreed as to the statements on the second day.

As to the original statements, the high court said they were inadmissible, but that their admission was harmless beyond a reasonable doubt. The 1993 ruling in People v. Sims, 5 Cal. 4th 405, was one of two handed down the same day that rejected earlier California Supreme Court cases holding that the admission of a tainted confession was reversible error per se.

Rymer, writing for the Ninth Circuit yesterday, explained that it is now settled law that the erroneous admission of a confession is harmless error if the remainder of the prosecution evidence is so strong there is no reasonable possibility that the outcome of the case would have been different.

That was the case with Sims’ trial, Rymer said. She noted that  the defense did not dispute the core of the prosecution case, but contended that Harrigan could have accidentally drowned in the bathtub while attempted to escape.

“In sum, there was strong evidence of motive to kill, other circumstantial evidence that reflected careful planning to make sure Harrigan would not be missed or return, and evidence that pointed to death as the only possible outcome of putting a hog-tied person with a ligature around his neck in a bathtub with the water running.”

No Penalty Retrial

Rymer also rejected the argument that even if the incriminating statements did not affect the verdict, the prosecution’s use of such statements in the penalty phase requires a new trial limited to penalty.

In seeking the death penalty, she explained, prosecutors “predominantly relied on the depraved way in which Sims perpetrated his series of killings and attempted killings.”

Rymer noted that in the South Carolina murders, Sims had tied up the victims and shot them multiple times, and that in Glendale he “chuckled as he told Spiroff and Sicam that Harrigan would not be returning, pointed a gun at Spiroff and Sicam in the corner of the office before Wagner’s entrance, and laughed and joked with people in the store as he took pizza orders at the front counter,” then “hanged Spiroff and Sicam in the cooler in a manner that promised a slow, agonizing, and painful death.”

Las Vegas police, she added, found when they arrested Sims that he had torn a listing of Domino’s establishments from the yellow pages of the phone book.

‘Had to Kill’

Given those facts, the judge said, the prosecutor’s reference to Sims’ possibly inadmissible statement that he “had to kill” Harrigan “added nothing to the prosecutor’s point—that the circumstances of Harrigan’s death were especially heinous.

Rymer went on to say that even if Sims’ second-day statements should not have been admitted, the use of those statements related to the South Carolina murders was harmless because the prosecution presented independent evidence regarding the circumstances of those killings.

Judge Raymond C. Fisher concurred in Rymer’s opinion, but Senior Judge Betty B. Fletcher argued in dissent that Sims is entitled to a new trial as to penalty.

Fletcher wrote:

“The prosecution’s use of these statements prejudiced Sims’s capital sentencing proceeding in two ways. First, the use of Sims’s statements reflecting his intent to kill Harrigan completely foreclosed any residual doubt argument Sims might have mounted with respect to his intent to kill.... Second, the prosecutor used Sims’s statements as the foundation of his extensive argument that Sims lacked remorse.”

The case is Sims v.  Brown, 03-99007.


Copyright 2005, Metropolitan News Company