Wilcher v. State, s. 03-DP-0032

• Decision Date: 07 October 1993
• Docket Number: 03-DP-0037,Nos. 03-DP-0032,s. 03-DP-0032
• Citation: 635 So.2d 789
• Parties: Bobby Glen WILCHER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 789

635 So.2d 789

Bobby Glen WILCHER v. STATE of Mississippi.

Nos. 03-DP-0032, 03-DP-0037.

Supreme Court of Mississippi.

Oct. 7, 1993.

Rehearing Denied March 17, 1994.

James W. Craig, Jackson, for petitioner.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for respondent.

En Banc.

ON MOTION AND APPLICATION FOR LEAVE TO FILE MOTION TO VACATE

DEATH SENTENCE

PRATHER, Presiding Justice, for the Court:

I. PROCEDURAL HISTORY

Bobby Glen Wilcher's two convictions and sentences of death were first considered by this Court separately and affirmed in Wilcher v. State, 448 So.2d 927 (Miss.1984), cert. denied 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984), and Wilcher v. State, 455 So.2d 727 (Miss.1984), cert. denied 470 U.S. 1034, 105 S.Ct. 1411, 84 L.Ed.2d 794 (1985). Wilcher's cases were consolidated for this Court's first consideration of his petitions for post-conviction relief, and were denied in Wilcher v. State, 479 So.2d 710 (Miss.1985), cert. denied 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986). He then filed a petition for habeas corpus in the United States District Court for the Southern District of Mississippi, which denied relief on June 19, 1990. However, the Fifth Circuit Court of Appeals reversed that denial and ordered that the District Court "issue the writ unless the State of Mississippi initiates in a reasonable time proceedings in state courts appropriate under Clemons." ¹ That Court affirmed the District Court's denial of relief on other issues. Wilcher v. Hargett, 978 F.2d 872 (5th Cir.1992). On May 16, 1991, Wilcher filed a second Application for Leave to File Motion to Vacate Death Sentence with this Court, seeking relief on one issue only, that the sentencing instructions foreclosed the jury's proper consideration of mitigating circumstances. This is one of the issues on which the Fifth Circuit affirmed the District Court. The application has not yet been acted on by the Court.

On January 28, 1993, the State filed a Motion to Reconsider, through which it asks this Court engage in a harmless error analysis on the Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) and Clemons issue already decided against the State in the federal habeas corpus action. The State recognizes that this Court has already held in several cases that it would not engage in harmless error analysis on the Maynard/ Clemons issue, but asks this Court to reconsider those holdings.

Wilcher did not respond to the State's motion within the seven days allowed by Miss.Sup.Ct.R. 27, but instead responded by filing a Motion for Establishment of Briefing Schedule on State's Motion to Reconsider Imposition of Death Sentence on February 16, 1993. Wilcher claims in this motion that the proper course of action for this Court to take at the present time is to remand to the trial court for resentencing, citing Irving v. State, 618 So.2d 58 (Miss.1992); Gilliard v. State, 614 So.2d 370 (Miss.1992); Pinkney v. State, 602 So.2d 1177 (Miss.1992); Jones v. State, 602 So.2d 1170 (Miss.1992); Shell v. State, 595 So.2d 1323 (Miss.1992); and Clemons v. State, 593 So.2d 1004 (Miss.1992). However, Wilcher asserts that if the Court wishes to reconsider the issue of harmless error analysis, the Court shall set a briefing schedule which will allow him to respond to the State's contention that this Court may do so.

II. ANALYSIS

In spite of our previous refusals to engage in harmless error analysis on the issue of the "especially heinous, atrocious or cruel" jury instruction, the State asks again that this Court perform that task. The issue presented by the State's motion has been decided in Irving v. State, 618 So.2d 58 (Miss.1992); Gilliard v. State, 614 So.2d 370 (Miss.1992); Pinkney v. State, 602 So.2d 1177 (Miss.1992); Jones v. State, 602 So.2d 1170 (Miss.1992); Shell v. State, 595 So.2d 1323 (Miss.1992); and Clemons v. State, 593 So.2d 1004 (Miss.1992). We cannot do so, for reasons which we will attempt to clarify.

The United States Supreme Court's decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) held that either appellate reweighing of aggravating or mitigating circumstances or harmless error analysis were permissible under the federal Constitution's Eighth Amendment, but that it was incumbent upon the Mississippi Supreme Court to interpret state law as to whether to perform such analysis. This Court holds that the basis for our decision not to reweigh based on Miss.Code Ann. Sec. 99-19-101 (Supp.1993) has been made abundantly clear in Clemons on remand and the other cases cited above. However, this Court clarifies the basis for our refusal to perform harmless error analysis, which rests on both independent state law and federal law grounds.

Were this Court now to engage in harmless error analysis after conceding that Sec. 99-19-101 requires that the jury make the weighing of aggravating and mitigating factors, we would run afoul of the United States Supreme Court's Clemons decision. In a portion of that opinion which we have heretofore not discussed, the Court rejected Clemons' argument based on Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), that appellate reweighing would violate federal due process requirements because the State statute requiring that the jury perform the weighing would not be complied with. The Court stated that:

[W]e have recognized that when state law creates for a defendant a liberty interest in having a jury make particular findings, speculative appellate findings will not suffice to protect that entitlement for due process purposes. Hicks v. Oklahoma, 447 U.S. 343 (1980).

. . . . .

Contrary to the situation in Hicks, the state court in this case, as it had in others, asserted its authority under Mississippi law to decide for itself whether the death sentence was to be affirmed even though one of the two aggravating circumstances on which the jury had relied should not have been or was improperly presented to the jury. The court did not consider itself bound in such circumstances to vacate the death sentence and to remand for a new sentencing proceeding before a jury. We have no basis for disputing this interpretation of state law, which was considered by the court below to be distinct from its asserted authority to affirm the sentence on the ground of harmless error and which plainly means that we must reject Clemons's assertion that he had an unqualified liberty interest under the Due Process Clause to have the jury assess the consequence of the invalidation of one of the aggravating circumstances on which it had been instructed.

Clemons v. Mississippi, 494 U.S. 738, 746-47, 110 S.Ct. 1441, 1447-48, 108 L.Ed.2d 725, 737 (1990) (emphasis added).

The federal court's decision was plainly based on this Court's erroneous decision in Clemons I, 535 So.2d 1354 (Miss.1988), motion granted and cert. granted in part, 491 U.S. 904, 109 S.Ct. 3184, 105 L.Ed.2d 693 (1989), and vacated, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) in which this Court did not address the issue of Miss.Code Ann. Sec. 99-19-101. In Clemons II, 593 So.2d 1004 (Miss.1992), this Court held that, under Miss.Code Ann. Sec. 99-19-101 (Supp.1991), only the jury can weigh the aggravating circumstances. The inescapable conclusion is that, due to our recognition that only the jury can perform the weighing task, were Clemons' due process claim once again before the United States Supreme Court, it would carry the day.

The importance of this discussion to the question of harmless error analysis is clear. This Court cannot logically, either as a matter of state or federal law, distinguish how we can perform harmless error analysis without reweighing. This Court agrees that "a court reviewing a death sentence in which the weighing process has been skewed may not simply apply a limiting construction to the factor that has skewed the weighing, but must also reconsider the entire mix of aggravating and mitigating circumstances presented to the jury." Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992) (citing Stringer v. Black, 503 U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992)).

This is particularly so in view of our own Constitution. Article 3, Sec. 26 affords criminal defendants in this state the right to trial by jury, while Art. 3, Sec. 14 affords the right to due process of law. Although criminal defendants in this State generally have no right to be sentenced by the jury, where a specific statute provides such a guarantee, such as Sec. 99-19-101 (Supp.1992), these two constitutional provisions operate together to elevate the statutory right to one of constitutional significance which this Court cannot abridge by applying harmless error analysis, whether by disregarding entirely the invalid circumstance or by applying a limiting construction.

III. CONCLUSION

Miss.Code Ann. Sec. 99-19-101 (Supp.1993) prevents this Court from performing either reweighing or harmless error analysis as a matter of state law. Therefore, the defendant's motion for leave to file a second post-conviction petition is granted; the motion to vacate the death sentence is also granted. This Court remands these cases to the Circuit Court of Scott County for new sentencing hearings.

MOTION FOR LEAVE TO FILE POST-CONVICTION PETITION GRANTED; MOTION TO VACATE DEATH SENTENCE GRANTED; MOTION TO SET

BRIEFING SCHEDULE DISMISSED AS MOOT AND, CASES REMANDED TO CIRCUIT COURT OF SCOTT COUNTY FOR NEW SENTENCING HEARINGS.

HAWKINS, C.J., and SULLIVAN, BANKS and McRAE, JJ. concur.

McRAE concurs with separate opinion joined by HAWKINS, C.J., and SULLIVAN and BANKS, JJ.

SMITH, J., dissents with separate opinion joined by JAMES L. ROBERTS, Jr., J., DAN M. LEE, P.J., concurs in parts II and III.

DAN M. LEE, P.J., dissents with separate opinion.

PITTMAN, J., not participating.

McRAE, Justice, concurring:

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