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

By Kenneth Ofgang, Staff Writer/Appellate Courts

September 22, 2005

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.

Sims had managed a Domino's Pizza parlor in West Columbia, South Carolina before resigning when he got angry at his boss for withholding part of a bonus. Sims sought revenge, and told his then-girlfriend that he wanted to use explosives to kill the boss. He bought a gun. On November 15, 1985, Sims was hired as a delivery driver by another Domino's, in Hanahan, South Carolina.

On December 8, 1985, Sims and Padgett ended up in Glendale, California. They went to a Domino's and asked Kory Spiroff, the assistant manager, for directions to a drugstore. On the afternoon of the next day, a man and woman went to a Sears store in Glendale and bought a package of socks, underwear, a clothesline, and a knife. The sales clerk overheard the woman tell the man to relax because they would be leaving the store shortly.

On the evening of December 9, Spiroff was on duty with delivery drivers Edward Sicam and John Harrigan. Each had on a Domino's uniform, consisting of short-sleeved shirts with a Domino's badge and name tag. At 11:03 p.m., Brian Scarlett, an off-duty Domino's employee who was visiting Spiroff, took a telephone order from a man with a southern accent. The caller asked for the pizza to be delivered to Room 205 of the Regalodge Motel. The motel was a three-minute drive from the parlor. Harrigan, who was twenty-one years old, left the parlor at 11:26 p.m. in his Toyota truck to make the delivery.

Around 11:45 p.m., Sims and Padgett went into the Domino's. Spiroff recognized the couple from the day before. This time, Sims pointed a gun at Sicam and ordered Spiroff and Sicam into a back office. When Spiroff warned Sims that a delivery driver was due back at any moment, 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 found a bank deposit bag which he gave to Padgett, who then emptied the parlor's cash drawers. Sims told her to watch for fingerprints, and she began wiping the tables and cash drawers at his direction. Sims ordered Spiroff and Sicam to stand in the corner of the office and aimed his gun directly at them.

At this point, Richard Wagner, an off-duty Domino's employee, arrived at the parlor with his wife. Sims told Spiroff to go to the front counter, threatening to shoot Sicam unless Spiroff cooperated. Instead of acknowledging Wagner as a friend, Spiroff asked him for his order. Meanwhile, Sims took an order over the phone, identifying himself as "Mitch" to the customer. While Spiroff prepared the pizzas, Sims told the Wagners to wait in the car for their pizza to be brought to them. After Sims gave the Wagners their pizza, they drove off and, suspecting a burglary, called the police.

Sims decided to take Spiroff and Sicam, one at a time, into the walk-in cooler. The cooler was 8 feet by 12 feet, with a 3-tier rack against the left wall. The temperature was kept at 32 to 40 degrees. Sims tied Spiroff's hands tightly behind his back with one end of a rope, looped the other end over the rack, and lifted Spiroff's arms painfully high by pulling down on the rope. This forced Spiroff to stand on his tiptoes to ease the tension in the rope and alleviate the pain. When Spiroff complained, Sims replied, "Shut up. At least you live." Next, Sims wrapped the end of the rope around Spiroff's neck and tied it so tightly with a knot in back of the neck that Spiroff would strangle if he stopped standing on his tiptoes. Sims asked Spiroff when the cooler would be opened the following day. Spiroff said at 11 a.m. Sims replied that, by then, he and Padgett would be in San Francisco. When Spiroff asked Sims about Harrigan, Sims said that Harrigan had been tied up at the motel and would be found after Spiroff was found.

Sims then brought Sicam into the cooler and bound him in the same manner as Spiroff. When Sicam said he was choking, Sims responded, "You are alive." Sims closed the cooler and left at 12:15 a.m. with Padgett.

While standing on the toes of one foot, Spiroff tried to knock over cartons so they could stand on them and relieve some of the pressure around the neck, but the rope tightened as he moved. Eventually he succeeded in knocking a box over. Nevertheless, at some point Spiroff blacked out.

Responding to Wagner's call, Glendale police officers arrived at 12:30 a.m. They found Spiroff and Sicam in the cooler. One of them told the officers that their assailant was wearing Harrigan's shirt and that Harrigan had not returned from delivering a pizza to the Regalodge.

The officers went to the Regalodge, got the key and registration card to room 205, which was registered to Sims, and found Harrigan's dead body in the bathtub. The bathtub was full of water, and Harrigan's body was submerged under the water on his right side with his back parallel to the side of the tub. Cold water was running at full blast onto the back of Harrigan's neck. His head was immediately under the spout, about one inch below the water line. The drain plug was broken, but the tub was filled with water up to the overflow valve. Harrigan's wrists were bound behind his back; his ankles were bound; and his feet and hands were "hogtied" together behind his back. His head was covered with a pillow case, which was secured with a rope ligature around the neck. A washcloth had been placed inside his mouth, held in place by a sock tied around his head.

Dr. Joseph Cogan, the state's forensic pathologist, who performed the autopsy on Harrigan's body, determined that the cause of death was ligature strangulation based on the depth of the furrow around the decedent's neck, indicating the extreme pressure of the ligature around the neck, and hemorrhages on the inner eyelids, indicating that Harrigan was alive when the neck ligature was applied because it obstructed blood flow to the head and brain. Cogan opined that Harrigan lived for no more than ten minutes after the neck ligature was applied and that the ligature in itself was enough to kill Harrigan. However, Cogan could not rule out the possibility that drowning contributed to Harrigan's death, based upon Harrigan's having been found fully submerged in a bathtub of water with a gag in his mouth, and the presence of frothy pulmonary edema in his trachea and bronchi.

No money, wallet, or car keys belonging to Harrigan were found in the room. The phone lines had been cut. Although the room had been wiped clean with a wet towel, Sims's fingerprints were found inside a toilet paper roll and in a telephone book on the page listing "pizza." The knots used to tie up the ligatures on Harrigan's neck were identical to those used to tie up Spiroff and Sicam. The rope used to bind Harrigan, Spiroff, and Sicam was similar to the clothes line sold to the young couple at the Glendale Sears the day before Harrigan's murder.

Sims and Padgett were apprehended in a Las Vegas motel on December 25 by the Las Vegas police acting on an anonymous tip. A fully loaded .25 caliber pistol was found under the mattress. The police also recovered a Los Angeles Times article entitled, "Delivery Man Slain While Making Run," and a yellow page torn from a Las Vegas telephone book listing Domino's Pizza establishments. Harrigan's pickup truck, with a Domino's shirt bearing Harrigan's name tag inside, was also found in Las Vegas about twenty miles from the motel.

Sims was taken to the Clark County jail. Officers Jonathan Perkins and Gary Montecuollo of the Glendale Police Department met with him in an interview room. Informed of his rights pursuant to Miranda, Sims acknowledged his understanding and signed a written form indicating that he did not waive his rights. As Perkins gathered his papers and stood up to leave, Sims asked what was going to happen to him from that point on, and indicated that he would like to go to South Carolina rather than California. During the conversation that followed, Sims told Perkins, "I had to kill that boy" and "He would have identified me." At the end of the interview, Perkins told Sims that Sims would have to initiate any further conversation about the investigation, which Sims did the next day. Perkins tape recorded this interview, which included Sims's statement "I just got drunk, and I didn't know what the fuck I was . . . I knew I was doing it, but I shouldn't have done it." After Perkins readvised Sims of his Miranda rights, Sims said that he had worked for Domino's Pizza in South Carolina and that he and Padgett had traveled by bus from that state to Glendale where they rented room 205 at the Regalodge. He told Perkins they had gone to Domino's for directions to a drugstore, and to Sears to buy a knife. He said that the next day they returned to Domino's for a pizza. At that point Sims ended the interview.

Sims's December 25 statements and an edited version of the tape of the December 26 interview were admitted in the guilt phase.

Sims did not testify. His forensic pathologist, Dr. Robert Bucklin, testified that the white, frothy material in Harrigan's larynx and trachea indicated that he had drowned, and that the furrow and hemorrhages could have resulted from the posture of Harrigan's head rather than asphyxia. Bucklin also testified that strangulation might have contributed to Harrigan's death. Stephen Schliebe, a private criminalist, testified that a piece of rope tied as the ligature was to Harrigan's neck would not cause loss of consciousness. Sims's theory of defense was that Harrigan was alive when Sims put him in the bathtub and left with Padgett, and that he lacked the intent to kill Harrigan, Spiroff, or Sicam.

The jury found Sims guilty of one count of first degree murder, with two special circumstances findings (that Sims committed the murder while lying in wait and during the commission of a robbery), two counts of attempted murder, and three counts of robbery. The jury also found that Sims used a firearm during the commission of each offense.

B

At the penalty phase the prosecution introduced evidence that Sims robbed and shot to death two Domino's Pizza employees in Hanahan, South Carolina less than one week before the Glendale crimes. Just after 2 a.m. on December 4, approximately two weeks after Sims was hired as a delivery driver at the Hanahan Domino's, Gary Melkie, the assistant manager, appeared in the lobby of the Police Department about three blocks away, dressed in his uniform with a telephone cord dangling from one of his wrists and bleeding profusely from gunshot wounds to his head and neck. A paramedic responded and Melkie was placed in an ambulance. En route to the hospital, the ambulance detoured to the parlor where another shooting had been reported. There, the police had found Chris Zerr, a delivery driver, lying on the floor covered with blood, his hands tied behind his back with a telephone cord. He died shortly thereafter from a gunshot wound to the head. $1,164 had been taken from the cash drawers.

At the hospital, the paramedic asked Melkie who had shot him and Melkie responded, "Sims. Mitch Sims." Melkie said that Sims had tied him up and then shot Zerr. Melkie repeated the same thing to a police officer, including a description of Sims, and said that Sims worked for Domino's. Melkie died after surgery.

Melkie had suffered four gunshot wounds to the head and neck, a bullet casing was removed from his tongue, and a fifth bullet, which had exited from his head, was recovered from a wall at the parlor.

An unedited version of the tape recording of Sims's December 26 statement to Perkins was admitted into evidence and played for the jury. In that portion of the statement, Sims recounted that he had robbed a Domino's Pizza parlor in South Carolina before going to California.

The defense presented as mitigating evidence a number of witnesses who testified about Sims's brutal family background of physical, sexual, and emotional abuse. His mother, Mildred, testified that Sims only saw his natural father (from whom she was divorced) on two or three occasions during his childhood, and that she married Arnold Cranford in 1961. She had three children with her first husband and two with Cranford. Cranford had a drinking problem and became violent and sexually abusive when intoxicated. She testified that Cranford raped Sims when he was seven years old, and forced Sims to engage in oral sex with him over the years. When Sims was sixteen, Cranford made him have sexual intercourse with his mother. They both cried during the incident. On another occasion, Cranford forced Sims to have intercourse with his older sister Merlon. Cranford repeatedly told Sims that Sims was "no good" and a bad person. Sims began drinking heavily at fourteen, and attempted suicide by drowning when he was an adolescent.

Merlon testified to repeated incidents of physical and sexual abuse that she and the other children suffered at the hands of Cranford. She said that every night was a nightmare, and that "[i]t ain't never going to leave me alone." Cranford would drag her out of bed, force her to strip, and then beat her, tie her to a bed, fondle her, and occasionally have sexual intercourse with her. Cranford brought men home and forced her to have sex with them. She also attempted suicide several times. Cranford threatened to kill the children if they told anyone about what he did. When Sims was sixteen, Cranford forced Sims's younger stepsister, Margaret, to undress and lie beside him in bed. He began to fondle her and told her he was going to have sex with her, but Sims called the police. Cranford was arrested and convicted.

Sims's brother Eddie also testified. He watched as Cranford forced Sims to have sex with Cranford on many occasions. He heard Cranford having sex with Margaret in the next room. Eddie also tried to commit suicide, and he said that Sims tried to lift up his spirits. Sims's other siblings did not testify, but there was evidence that Margaret ran away from home and began taking drugs, and that his brother Jimmy was a career army officer.

Sims's wife, Theresa, had known Sims since she was nine, and she, too, had experienced an abusive childhood. They were married when Sims was twenty and she was sixteen. They had three children, who worship Sims and live for his phone calls and letters. She testified about various jobs that Sims had held, and said that he became withdrawn and depressed whenever he was promoted at work, that he engaged in extensive substance abuse, and that he suffered a sense of worthlessness and guilt from the incestuous act he committed with his mother. While he was working at Domino's, Sims had an affair with a co-worker but came back to Theresa. He left Theresa again when he met Padgett. Sims told Theresa he was no good for her and did not want to pull her, and the boys, down with him. At her urging, he saw a counselor and cried as he recounted the abuse he had suffered. Sims's mother, sister and stepbrother, as well as his wife, testified that Sims was sensitive and continued to be a good, supportive father to his three children.

Dr. William Vicary, a psychiatrist, testified that Sims suffered from chronic depression, and alcohol and drug abuse. He stated that Sims had long-standing feelings of inadequacy, low self-esteem, despair, shame, and humiliation. Vicary explained that individuals who have suffered a lot of verbal and physical abuse tend to be crippled from a psychological point of view and have trouble later in life, becoming violent, abusive adults. On cross-examination Vicary admitted that Sims had never been diagnosed as mentally ill, and that his depression was not severe.

At the conclusion of the penalty phase, the jury fixed the punishment at death.