Miller Killed Mulhall “With Depraved Indifference, With Ill Will, Hate, Spite,” Prosecution Argues

Note: this is an account of the Paul Miller trial’s morning session on Tuesday. For the account of the afternoon session, go here.

March 14, 2012, was a typical day for Dana Mulhall: he had a few landscaping jobs to do, and a few to catch up on because the previous day he’d gone fishing with a friend. He planned out his day so that his last job was at a friend’s property. The two made plans to have lunch after the job was done, at 2:30 p.m, at Johnny D.’s in Flagler Beach. There, Mulhall had a beer or two (Miller Lite was his beer of choice). Afterward they went to the Golden Lion and had another beer or two. After 5 p.m., Mulhall left, went to another bar on his own, had another beer or two, then went to a convenience store to buy his lottery tickets. He was an avid lottery fan.

There he saw the 17-year-old daughter of a close friend, told her he’d see her dad later on, and went home in his Bronco. He never made that date.

He got home on South Flagler Avenue around 6 p.m. There were dogs barking in his neighbor Paul Miller’s front yard, immediately to the south of Mulhall’s property on the west side of South Flagler. Mulhall, according to Assistant State Attorney Jacquelyn Roys, started “yelling and cursing and telling the dogs to stop barking.” Three children walking down the road to play football nearby heard him curse, and saw the beginning of a confrontation with another man.

Miller, Roys said, left his front door “his home, he exits an area where he was safe, where he was at home,” and he walks toward Mulhall, who was across the 40-foot fence separating the two men’s property, “and he walks straight at this man and he confronts him and he gives him the finger.”

One of the boys walking past saw the scene unravel. They didn’t linger. By the time the boys got to their friend’s house to play, they heard gunshots. “Five, slow-paced methodical shots,” Roys said. The neighbor across the street from Miller’s house remembers hearing the shots. She looked out the window and saw Miller facing in the direction of Mulhall’s home, then slowly turn a round and walk into his home.

At 6:18 p.m., Miller called 911 to inform the dispatcher he’d shot Dana Mulhall, opening with these words: “I just shot the son of a bitch,” adding: ”I shot his fucking ass.” In the 911 call played for the jury later on, Miller is heard describing the incident as deliberately as the prosecution is describing the shooting itself: as a murder committed “with depraved indifference, with ill will, hate, spite.”

Paramedics had tried life-saving measures, but it was too late. Mulhall was struck five times, by all five bullets Miller fired from his 9mm pistol, even as Mulhall was “going in the opposite direction from the gunshots.” Roys described where the succession of bullets struck: the nipple, the leg, the back, the neck, the knee. She described the trail of blood leading to Mulhall’s doorstep, “where he then lay crumbled and died at that location. There will be no evidence that showed that either man ever crossed the fence, there will be no evidence that Dana Mulhallk was armed, he was an unarmed man.”

As Roys made her opening argument to the juryTuesday morning, in second day of Miller’s trial (Monday was devoted to jury selection), her voice, naturally high-pitched, often rose in rhythm with the index finger she pointed at Miller as he sat between his attorneys, looking back sternly at the assistant state attorney. It was the most detailed description yet of Mulhall’s last day.

The evidence would show, Roys said, that the only “just” verdict in the case is guilty of second-degree murder. The defense-Doug Williams and Carine Jarosz—chose not to present its opening arguments just then, reserving them for when it would present its case.

The prosecution’s morning witnesses were focused on those few minutes in the two men’s yards. But the picture Roys was attempting to construct was of elusive sounds and sights: no single witness saw the incident from start to finish. No witness saw the shooting. No witness saw the entirety of the argument. Diferent witnesses saw and heard different things, which Roys and her assistant, Kayla Hathaway, spent the morning piecing together.

One of the three boys who had been walking down South Flagler Avenue when Mulhall began yelling at the dogs was called to the stand: a 12-year-old boy from Old Kings Elementary, nervous but poised, who described Mulhall first “come out and start yelling” (the boy did not identify the men by name) then Miller come out of his house and do the same.

“Did he make any gestures?” Roys askd about Miller.

“Yah, I think he put the finger up,” the 6th grader said.

The boys kept walking down. A Few minutes later, they heard the shots. They talked among themselves as to what to do. One of them called 911.

Several witnesses, all of them neighbors of Mullhall’s and Miller’s, were called to the stand to describe what they’d heard or seen. All described slow, deliberate shots. John Denny, who lived across the street, a few doors up, had been looking at Ebay on his computer when he heard five slow shots that he at first mistook to be construction noise, but later thought were deliberate gunshots, evenly spaced. He looked out the window, saw nothing, and armed himself. Only when he saw police cars’ lights did he conclude that someone had been shot.

Same story with Ed Moffit, who’d only known Mulhall as an acquaintance. He heard the “five evenly spaced rounds,” looked out the window, saw nothing, then went to his bedroom and armed himself.

Amber Dibble lives almost directly across from the two men’s properties. She was home alone, washing dishes and listening to pop music from her computer’s speakers. She heard what sounded to her like three “pop” sounds.

“I thought they might be like fireworks,” she said.

“What did you do once you heard those sounds?” Hathaway asked.

She looked out the window. “I saw Paul standing in his yard,” Dibble said.

“And where was he in his yard?”

“He was sort of closer to Dana’s house but he was still in his yard.”

Hathaway asks her to stand and show the jury how Miller stood the turn to walk back to his house. Hathaway was trying to establish that Miller was being deliberate even after the shooting. Dibble tried to recreate Miller’s pace, then sat back down and was asked what she saw in Millr’s hand.

“I saw the gun in his hand.”

“What kind of gun? Big, small?”

“A handgun,” Dibble said.

“When you observed Mr. Miller, did he appear frightened to you?” Hathway asked.

“No.” At least not from what she could see initially, she said, but when she saw the gun in his hand, “I didn’t know what to think,” Dibble said. She didn’t see Mulhall. She sat down and cried, because she didn’t know what was going on.

The defense asked each witness whether he or she had followed the case in the media, whether their opinions of the case had been influenced, or set, by news reports or conversations with others. If witnesses had followed the news, it had only been incidentally. None provided an opening the defense could expand in order to create some doubt as to the partiality of the testimony provided, though in one case—Ed Moffit, one of Mulhall’s neighbors—Williams pressed hard on a few statements Mofit had made during a deposition about his “partisanship” toward Mulhall.

The morning session ended when Lt. Justin McDonald, a paramedic with Flagler County Fire Rescue who was in charge of the scene the evening of the shooting, described how he found Mulhall, the two attempts at CPR, and the time McDonald called Mulhall’s death: it was 6:37 p.m.