Gillett v. State, No. 2010–DR–01072–SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtLAMAR, Justice, for the Court
Citation148 So.3d 260
PartiesRoger Lee GILLETT v. STATE of Mississippi.
Decision Date12 June 2014
Docket NumberNo. 2010–DR–01072–SCT.

148 So.3d 260

Roger Lee GILLETT
v.
STATE of Mississippi.

No. 2010–DR–01072–SCT.

Supreme Court of Mississippi.

June 12, 2014.
Rehearing Denied Sept. 18, 2014.


148 So.3d 261

Office of Capital Post–Conviction Counsel by Glenn S. Swartzfager, Scott A. Johnson, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

EN BANC.

Opinion

LAMAR, Justice, for the Court:

¶ 1. Roger Gillett was convicted of two counts of capital murder and sentenced to death on each. This Court affirmed his convictions and sentences on direct appeal in Gillett v. State, 56 So.3d 469 (Miss.2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 552 (2011). Gillett now petitions for post-conviction relief, seeking permission to proceed in the trial court. Gillett raises six issues, which we have organized as follows:

(1) The underlying capital-murder aggravator of robbery was improperly expanded;
(2) Conviction of capital murder under the “continuous-action doctrine” was unconstitutional, as Gillett was not given required fair notice;
(3) Gillett's trial counsel were ineffective in failing to investigate Gillett's background and to present an adequate mitigation case;
148 So.3d 262
(4) Gillett's trial counsel were ineffective in failing to object to prosecutorial misconduct during the sentencing portion of his trial;
(5) Gillett's due-process rights were violated when the Mississippi Supreme Court reweighed the aggravating and mitigating factors; and,
(6) Cumulative error.

¶ 2. This Court requested supplemental briefing from the parties on various issues related to Gillett's sentencing and heard oral arguments. We find that issues one and two are without merit and will be addressed in Part I of this opinion; however, we find that, under issue five, Gillett's due-process rights were abridged in sentencing, which will be addressed in Part II of this opinion. Therefore, we grant Gillett's petition in part and deny in part, vacate his sentences of death, and remand this case to the circuit court for a new sentencing hearing. Because issue five is dispositive, requiring reversal of Gillett's sentences, we do not discuss his other claims raised in issues three, four, and six related to the sentencing phase of his trial.

¶ 3. Gillett, along with his codefendant Lisa Chamberlin, killed Vernon Hulett and Linda Heintzelman in Mississippi.1 Gillett and Chamberlin then drove Heintzelman's truck to Kansas, with the dismembered bodies of their victims stuffed in a freezer in the back of the truck. Gillett was arrested in Kansas. While he was awaiting extradition to Mississippi, Gillett was convicted of aggravated escape.2 After he was returned to Mississippi, Gillett was tried and convicted of two counts of capital murder. The capital-murder convictions were based on an underlying robbery. The jury found four aggravating factors,3 including that Gillett previously had been convicted of a felony involving the use of threat or violence to the person, based on his conviction for aggravated escape in Kansas. The jury found that the mitigation evidence presented during the sentencing phase did not outweigh the aggravating factors and sentenced Gillett to death.

STANDARD OF REVIEW

¶ 4. Post-conviction-relief proceedings have become “part of the death penalty appeal process.”4 “The standard of review for capital convictions and sentences is ‘one of “heightened scrutiny” under which all bona fide doubts are resolved in favor of the accused.’ ”5 “What may be

148 So.3d 263

harmless error in a case with less at stake becomes reversible error when the penalty is death.”6

I.

¶ 5. Gillett argues that the trial court erred in giving Jury Instructions S–5 and S–6, because the instructions improperly expanded the underlying aggravating factor of robbery in that they did not define “intervening time” or “continuous chain of events,” and that his trial counsel was ineffective for not raising this issue at trial or on direct appeal. Gillett further argues that the trial court erred in allowing Jury Instructions S–5 and S–6 because they violated the Due Process Clause of the Fourteenth Amendment by allowing the jury to find Gillett committed robbery at the time of the murders based on a “continuous chain of events” without giving him sufficient notice, and that his trial counsel was ineffective for not raising this issue at trial or on direct appeal.

¶ 6. On direct appeal, we addressed Gillett's claim that the trial court erred in allowing Jury Instructions S–5 and S–6 because they did not require the jury to find that Gillett had the intent to commit robbery before the murders occurred.7 We also addressed whether the jury was instructed improperly on the theory of “one continuous chain of events.”8 We explained that intent to rob may be inferred from facts surrounding the crime and that “Mississippi follows the ‘one-continuous-transaction rationale’ in capital cases” such that “the crime of capital murder is sustained” where “the two crimes [e.g., murder and robbery] are connected in a chain of events and occur as part of the res gestae.”9 Therefore, we concluded that Jury Instructions S–5 and S–6 were properly given.10

¶ 7. Gillett's argument that the trial court erred in allowing the underlying felony of robbery to be expanded is barred by res judicata, as this claim was raised and addressed on direct appeal.11 Additionally, Gillett cannot relitigate these claims under the guise of ineffective assistance of counsel.12 Furthermore, this argument again challenges the propriety of Jury Instructions S–5 and S–6, already addressed on direct appeal. As we previously determined that these instructions were proper, any failure to raise this issue on direct appeal does not constitute ineffective assistance of counsel.13 These assignments of error are without merit.

II.

¶ 8. On direct appeal, Gillett argued that the trial court erred in allowing the jury to consider whether he was previously convicted of a felony involving the threat or use of violence. This Court unanimously determined that the “previous-violent-felony” aggravating factor based on Gillett's Kansas conviction for escape was an invalid aggravator and should not have been presented to the jury. Because not

148 So.3d 264

every escape can be considered a crime of violence under the Kansas statute and “[t]he facts surrounding and supporting the Kansas conviction for attempted aggravated escape are unknown,” we found that the State failed to present “sufficient evidence to support the ‘previous violent felony’ jury instruction.”14 This Court then concluded that the mitigating evidence presented “[did] not outweigh the remaining three aggravating circumstances—‘avoiding arrest,’ ‘especially heinous capital offense,’ and ‘felony murder’—all of which are supported by the evidence. Therefore, the inclusion of the invalid ‘previous violent felony’ aggravator was harmless error.”15 Gillett argued in his motion for rehearing and now argues in his post-conviction petition that this Court's reweighing violates his due-process rights under the United States and Mississippi Constitutions, citing Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006).

¶ 9. The State makes a compelling argument that this issue is procedurally barred as res judicata, claiming that this Court addressed it on direct appeal, and that Gillett unsuccessfully challenged the Court's “reweighing” in his motion for rehearing. We first address the State's argument.

Res Judicata

¶ 10. Specifically, the State argues that this issue is barred under Mississippi Code Section 99–39–21(3) (Rev.2007), part of Mississippi's Uniform Post–Conviction Collateral Relief Act (“UPCCRA”), which provides that “the doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.” But, contrary to the State's argument, Gillett could not assign error to this Court's “reweighing” until this Court determined one aggravator to be invalid and engaged in the reweighing of aggravating and mitigating factors. Gillett could not have raised this assignment of error on direct appeal.

¶ 11. Furthermore, this Court has specifically “recognized [an] exception [ ] to procedural bars for claims asserting ... denial of due process at sentencing.”16 Gillett argues that he was denied due process in sentencing, and, therefore, under Rowland II, his claim is not time-barred nor barred by res judicata. As such, we will consider this issue.

Gillett's argument

¶ 12. Gillett argues that his death sentences must be vacated because otherwise inadmissable evidence was put before his sentencing jury in support of the invalid aggravating factor, citing the U.S. Supreme Court's decision in Brown v. Sanders, 546...

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3 practice notes
  • Flowers v. State, No. 2010–DP–01348–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • November 13, 2014
    ...at 867–68 (quoting Gillett, 56 So.3d at 505–06 (quoting Leatherwood, 435 So.2d at 651 )).25 Wiley, 750 So.2d at 1206.26 Gillett v. State, 148 So.3d 260, 268–69 (Miss.2014) (the Court declines to exercise its authority under Mississippi Code Section 99–19–105(3)(d) to re-weigh aggravating an......
  • Moore v. State, NO. 2016–KA–01507–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 19, 2018
    ...Nor is it of recent vintage. Rather, "[p]erforming harmless-error review is commonplace in appellate courts ...." Gillett v. State , 148 So.3d 260, 266 (Miss. 2014). It is widely utilized by all appellate courts, state and federal, and is even codified in Mississippi's procedural rules.17 A......
  • Ambrose v. State, NO. 2015-DP-01159-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 2, 2018
    ...it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ " Gillett v. State , 148 So.3d 260, 266 (Miss. 2014) (quoting Chapman v. California , 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). The constitutionally improper deni......
3 cases
  • Flowers v. State, No. 2010–DP–01348–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • November 13, 2014
    ...at 867–68 (quoting Gillett, 56 So.3d at 505–06 (quoting Leatherwood, 435 So.2d at 651 )).25 Wiley, 750 So.2d at 1206.26 Gillett v. State, 148 So.3d 260, 268–69 (Miss.2014) (the Court declines to exercise its authority under Mississippi Code Section 99–19–105(3)(d) to re-weigh aggravating an......
  • Moore v. State, NO. 2016–KA–01507–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 19, 2018
    ...Nor is it of recent vintage. Rather, "[p]erforming harmless-error review is commonplace in appellate courts ...." Gillett v. State , 148 So.3d 260, 266 (Miss. 2014). It is widely utilized by all appellate courts, state and federal, and is even codified in Mississippi's procedural rules.17 A......
  • Ambrose v. State, NO. 2015-DP-01159-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 2, 2018
    ...it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ " Gillett v. State , 148 So.3d 260, 266 (Miss. 2014) (quoting Chapman v. California , 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ). The constitutionally improper deni......

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