Miller v. State

379 So.3d 1109

Everett G. MILLER, Appellant,

v.STATE of Florida, Appellee.

No. SC2022-0745

Supreme Court of Florida.

February 29, 2024

An Appeal from the Circuit Court in and for Osceola County, Greg Allen Tynan, Judge, Case No. 492017CF002906XXXAXX

Matthew Metz, Public Defender, George D.E. Burden, Assistant Public Defender, and Kathryn R. Radtke, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Patrick Bobek, Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

Everett Glenn Miller appeals his convictions and death sentences for the first-degree premeditated murders of Kissimmee Police Officers Matthew Baxter and Richard "Sam" Howard, both of whom were shot twice in the head from close range in 2017. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons we explain, we affirm Miller’s convictions and death sentences.¹

I. BACKGROUND

On August 18, 2017, at approximately 9:30 p.m., Miller pulled his car over and angrily inserted himself into a conversation Officer Baxter was having with three individuals who were loitering on a street corner. At Miller’s request, Officer Baxter called his supervisor to the scene. After the supervisor—Sergeant Howard—arrived, Miller made certain comments that caused Sergeant Howard to instruct the three loiterers to leave the area. Soon thereafter, both Officers had been twice shot in the head. When Miller was arrest- ed in Roscoe’s, a local bar later that night, he was carrying two firearms, including the murder weapon—a small .22 caliber revolver capable of being concealed in the palm.

Before the murders, Miller, a former Marine, had been making hateful anti-police and race-based social media posts, including this post just hours earlier: "Am I the only one. Fuck a Cop … Racist Fuckers."

At trial, Miller did not dispute that he killed both Officers. The defense instead argued that premeditation was lacking, and that Miller committed second-degree murder. The jury ultimately convicted Miller of two counts of first-degree premeditated murder and later unanimously recommended death for each murder.

Guilt Phase

The State presented the testimony of numerous witnesses, including one of the three loiterers, various law enforcement officials, a jailhouse informant, medical examiners, and employees of Roscoe’s. The State also introduced, among other things, forensic evidence, a video taken by one of the loiterers showing some of Miller’s interaction with Officer Baxter, and Miller’s social media posts expressing animus against the police. The evidence established the following.

On the night of the murders—at the location where the murders were to occur—Officer Baxter approached Maribel Gonzalez King, who had an open beer container, and her two friends (nicknamed "Dash" and "Blaze") who were all loitering on a street corner in Kissimmee. King knew Officer Baxter (and Sergeant Howard) from previous interactions. Officer Baxter was in full police uniform, had a marked car, and was, according to King, "calm and relaxed, like normal."

During Officer Baxter’s interaction with the three individuals, Miller pulled up in his vehicle, stopped suddenly, got out, and walked toward Officer Baxter. After an obnoxiously loud Miller told Officer Baxter to stop harassing people and requested that Officer Baxter call his superior, Officer Baxter radioed his location and that a black male wanted to speak to Sergeant Howard. Within minutes, Sergeant Howard arrived in a marked car and full police uniform and, according to King, "stayed calm the whole time." Neither Officer acted aggressively, threatened to use a weapon, or gave any commands to Miller.

Sergeant Howard’s demeanor changed after Miller commented that he feared for his life and was eligible to carry a concealed weapon. Upon hearing those words, Sergeant Howard instructed King and her friends to move along. King, the last to walk away, made it only halfway down the street when she heard two gunshots, a pause, and two more gunshots. After hearing a car speed away, King looked back and saw two officers on the ground.

A woman who lived close to the murders also heard noises—interrupted by a pause—that sounded like possible gunshots. She looked outside her house and saw two police vehicles and a dark vehicle. After seeing an individual speed away in the dark vehicle, she saw two officers on the ground and called 911.

The first officers to arrive at the scene, Lieutenant Christopher Paul Succi and Officer David Toro, noticed the bodies were unusually situated. That is, Officer Baxter and Sergeant Howard—each with a fully loaded pistol still securely holstered and an undeployed taser—were "both on their backs, feet straight, arms to the side," and were "laying parallel next to each other, a few feet apart." In other words, their bodies had been positioned.

Sergeant Howard had no defensive wounds, a "near contact" gunshot wound on the left side of his head in the temporal region, and a "near contact or intermediate" gunshot wound just above the upper lip. Officer Baxter had some abrasions that were consistent with a fight or altercation but also consistent with simply falling and being scraped on the pavement. Officer Baxter also had two gunshot wounds to the head—one through the lower lip, the other to the back left side of the head—both of which were "contact wounds." The four bullets were ultimately recovered during the Officers’ autopsies.

Later the night of the shootings, the lead investigator, Corporal Charles Hess, became aware that Dash had provided to law enforcement a brief video he had taken of Officer Baxter’s interaction with the black male. After an investigator recognized Miller in the video, a bulletin was put out, and the video was sent to the field units.

In the meantime, Miller abandoned his vehicle in a woman’s yard and eventually made his way to Roscoe’s. Upon entering Roscoe’s, Miller—an unfamiliar face—commented that "there was some crazy stuff going on outside" and that he "was gonna stay and have a drink." Miller proceeded to the bar area, where he was calm and coherent until a patron approached and asked if Miller had shot two cops. Miller became agitated, denied shooting any officers, and claimed he had been there at Roscoe’s. Another patron overheard Miller say at one point that the Officers "got what they deserved."

Miller’s behavior at Roscoe’s soon led to his arrest. After the owner of Roscoe’s contacted law enforcement about an agitated person and provided a description matching the individual in Dash’s video, multiple deputies entered Roscoe’s and arrested Miller, who was carrying a black 9mm Sig Sauer, a knife, and a small .22 caliber "single action" revolver.² The .22 revolver—which was found in Miller’s front pocket, holds five rounds, and does not eject shell casings—had one live round and four that had been fired. Firearms testing later confirmed that the four bullets recovered during the Officers’ autopsies were fired from Miller’s revolver.

After Miller’s arrest, law enforcement located his dark blue Kia Optima. Among other things, a latent print was discovered on the trunk lid, and bloodstains were found on a rear tire. Fingerprint analysis and DNA testing matched the print and blood to Sergeant Howard. Other items sent for DNA testing—including physical samples collected from Miller, and a hat and necklace recovered at the crime scene—also tied Miller to the murders.

Within days of the murders, Corporal Hess discovered Miller had a YouTube channel for firearms instruction and review. One video showed Miller using a single-action .22 caliber revolver to rapidly fire successive bullets into a target’s head from approximately ten yards.

Corporal Hess also discovered Miller had been making anti-law-enforcement posts on a Facebook page under the profile name of Malik Mohammad Ali. For example, on August 12, 2017, Miller posted comments including this one: "Punk Ass-Black Cop. Here is a real nigger! I would love to meet him." That same day, Miller also posted a picture of a law enforcement officer, with certain captions including "There Are No ‘Good Cops.’ " And as previously mentioned, on August 18, 2017, hours before the murders, Miller posted:

"Am I the only one. Fuck a Cop … Racist Fuckers."

Lastly, Corporal Hess became aware that a jailhouse informant came forward about conversations with Miller regarding the murders. At trial, the informant testified that, among other things, Miller used the Officers’ names as though he knew them, said he "hated them" for always harassing people, and talked about what he would have done if he had his AR-15.

The defense called one witness, Miller’s half-sister, who testified that Miller was loving and caring, and that before the murders, he lost his job working for Sonoco, had a breakup with his girlfriend, showered less, became jumpy, and started acting like somebody was watching him. She also testified that a few weeks before Miller’s arrest, she drove him to the police station; he was crying and chanting his military ID number.

After hearing all the evidence, the jury unanimously convicted Miller of two counts of first-degree premeditated murder.

Penalty Phase

In the penalty phase, the State presented additional witnesses and evidence, including additional Facebook posts by Miller.

The State’s first witness, Julian Albright, who met Miller on active duty and later worked with Miller for a military contractor before Miller left that job in 2016, testified about a daytime meetup he agreed to have with Miller at a 7-Eleven a month or two before the murders. When Albright arrived at the 7-E leven, he saw plainly visible bags of marijuana in Miller’s backseat. Miller was unconcerned about the drugs and at one point showed Albright a very small .22-caliber-looking firearm while saying: "I’m not gonna be another statistic. I’m not gonna be...