Gilliard v. State

• Decision Date: 10 December 1992
• Docket Number: No. 92-KA-1061,92-KA-1061
• Citation: 614 So.2d 370
• Parties: Robert C. GILLIARD, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 370

614 So.2d 370

Robert C. GILLIARD, Jr. v. STATE of Mississippi.

No. 92-KA-1061.

Supreme Court of Mississippi.

Dec. 10, 1992.

Rehearing Denied March 18, 1993.

Kenneth J. Rose, Durham, NC, Cynthia A. Stewart, Royals & Hartung, Jane Tucker Lambert, James W. Craig, Andre de Gruy, Jackson, for appellant.

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

Isaac K. Byrd, Jr., Byrd & Associates, Jackson, for amicus curiae.

En Banc.

ON MOTION UNDER POST-CONVICTION RELIEF ACT

PRATHER, Justice, for the Court:

I. PROCEDURAL HISTORY

Robert C. Gilliard Jr. was indicted by the Grand Jury for the Circuit Court of Jones County, Mississippi, for the crime of capital murder, to which he pled guilty. A jury was convened for sentencing purposes. On October 17, 1981, the jury returned a verdict of death, finding four aggravating circumstances, including a finding that the defendant committed the capital murder in an especially heinous, atrocious, or cruel manner.

This Court affirmed the conviction and death sentence. Gilliard v. State, 428 So.2d 576 (Miss.1983). No petition for rehearing was filed. A petition for writ of certiorari was filed with the United States Supreme Court which was denied on October 3, 1983. Gilliard v. Mississippi, 464 U.S. 867, 104 S.Ct. 40, 78 L.Ed.2d 179 (1983).

Gilliard then filed an application for leave to file a petition for writ of error coram nobis, and on February 22, 1984, this Court granted the application for leave to file in the trial court and ordered an evidentiary hearing on two issues: (1) the constitutionality of petitioner's guilty plea, and (2) whether petitioner received effective assistance of counsel. Gilliard v. State, 446 So.2d 590 (Miss.1984). A hearing was held on these claims in the Circuit Court of Jones County on March 19, 1984, and on March 22, 1984, in a written opinion, the Circuit Court denied the petition with prejudice. An appeal was taken to this Court from this ruling, and on January 9, 1985, this Court affirmed the denial of relief; petition for rehearing was denied February 27, 1985. Gilliard v. State, 462 So.2d 710 (Miss.1985).

Gilliard then filed a petition for writ of habeas corpus and a motion for stay of execution with the United States District Court for the Southern District of Mississippi. On May 4, 1987, in an unpublished memorandum opinion, the District Court denied relief on all issues.

Gilliard appealed to the Fifth Circuit from the denial of this relief, which court affirmed the District Court on June 14, 1988; a motion for a rehearing was denied on July 12, 1988. Gilliard v. Scroggy, 847 F.2d 1141 (5th Cir.1988). Gilliard filed a petition for writ of certiorari with the United States Supreme Court, which was denied. Gilliard v. Scroggy, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989), rehearing denied, 489 U.S. 1061, 109 S.Ct. 1332, 103 L.Ed.2d 600 (1989).

Gilliard now files this motion under the Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. 99-39-1 et seq. (Cum.Supp.1991), asking this Court to vacate the sentence of death based upon the claims presented, affidavits, trial record, and relevant principles of law, or alternatively, to grant the petitioner leave to file the Motion to Vacate Sentence in the Circuit Court of Jones County. As grounds for relief, Gilliard raises five issues relating to the penalty phase of the trial: (1) the issue of parole injected by the prosecutor in closing argument should be re-examined because, he asserts, erroneous findings by this Court creates the potential of a miscarriage of justice; (2) the application of Maynard v. Cartwright 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), to this case; (3) the admission of an alleged involuntary, unconstitutional prior conviction as an aggravating circumstance; (4) instructions at the penalty phase failed to channel the jury's discretion in consideration of mitigating circumstances; (5) prosecutor's use of peremptory strikes to exclude potential black jurors. ¹

In addition, Gilliard has filed two Supplements to the Motion to Vacate which raise and argue the issue of newly discovered exculpatory statements taken by law enforcement officers at the time of the incident two by eyewitnesses to the incident and one by a person who knew information about the gun used in the incident. Gilliard claims these statements were withheld by the State at the time of plea negotiations and sentencing hearing, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In conjunction with these two Supplements, Gilliard has filed a Motion to Expand the Record, requesting that this Court order the addition of these statements to the record, which are currently in the possession of the Mississippi Department of Public Safety and the Jones County District Attorney's Office. (A subpoena duces tecum was issued to the Mississippi Highway Patrol Criminal Investigative Unit asking for "records, statements, memoranda, or other documents maintained on Robert C. Gilliard, Jr." Gilliard's attorney was allowed to view the documents on April 12, 1989, but before she could gain possession of certified copies of these documents, the subpoena was quashed at a hearing in Jones County on April 14.)

Finally, Gilliard has filed a Supplement concerning the impact of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), on the Maynard v. Cartwright issue, infra, which he raises in this Application.

II. ANALYSIS

A. Successive Writ Bar, Procedural Bar and Preservation of Issues.

In its response, the State raises, as a preliminary issue, the specter of the Successive Writ Bar contained in Miss.Code Ann. Sec. 99-39-27(9) (Cum.Supp.1991), by pointing out that Gilliard sought and was given an evidentiary hearing on two issues in an application for leave to file a petition for writ of error coram nobis in 1984. Gilliard v. State, 446 So.2d 590 (Miss.1984). All other claims raised in that post-conviction collateral petition were found to be procedurally barred either because they were raised on direct appeal and decided adversely to Gilliard, Id. at 592, or were not raised on direct appeal and could not be raised for the first time on collateral attack. Id. at 593.

As to the two issues remanded for evidentiary hearing, this Court affirmed the denial of those claims by the trial court. Gilliard v. State, 462 So.2d 710 (Miss.1985). When the Court decided these two final issues in 1985, proceedings before state courts were at an end. See Culberson v. State, 580 So.2d. 1136 (Miss.1990). Thereafter, Gilliard, having exhausted state remedies, filed a petition for writ of habeas corpus in the federal system and has run the gamut of federal appeals from denial of relief in the federal district court. Significantly, and unlike Culberson, the federal courts have not remanded this case to the state courts for exhaustion of any claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Gilliard has filed this petition as his last attempt to have his death penalty reversed. The State's position is to have this Court bar this petition as a successive writ.

Alternatively, the State would have this Court apply the procedural bars to the claims raised here by Gilliard, as set out in Miss.Code Ann. Sec. 99-39-21, should this Court accept Gilliard's contention that it has accepted petitions for post-conviction relief from persons who have similarly run the state and federal post-conviction relief courses to exhaustion before the advent of the Uniform Post-Conviction Collateral Relief Act. See Johnson v. State, 508 So.2d 1126 (Miss.1987), and Evans v. State, 485 So.2d 276 (Miss.1986). Gilliard's contention is that the claims he raises fall under the exception to the successive writ bar--that there have been intervening decisions by this Court or the United States Supreme Court which would have actually adversely affected the outcome of his conviction and sentence, and that he has evidence not reasonably discoverable at the time of his conviction and sentence which would have caused a different result in them. Miss.Code Ann. Sec. 99-39-27(9).

Each of Gilliard's claims will be examined in light of the successive writ bar, Miss.Code Ann. Sec. 99-39-27(9), and procedural bar, Miss.Code Ann. Sec. 99-39-21(6). B. Assignment No. 1: The Issue of Parole Injected by the Prosecutor Introduced an Arbitrary Element into Robert Gilliard's Sentencing Proceeding and Should be Reexamined Because Erroneous Findings by This Court Creates the Potential of a Miscarriage of Justice.

Gilliard acknowledges that this issue was raised on direct appeal and decided by this Court. Gilliard v. State, 428 So.2d 576, 583 (Miss.1983). On direct appeal, this Court held that the statement by the prosecutor constituted error, without question, but the defense's remarks amounted to provocation and caused the district attorney to respond as he did. Therefore, under the decisions of this Court, the error did not require reversal. Gilliard, 428 So.2d at 583 & 584.

Gilliard raised this issue in the federal district court on habeas proceedings, arguing that under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (Miss.1985), it was unconstitutionally improper for the prosecutor to make any comment on post-trial possibilities of prosecutor to make any comment on post-trial possibilities of alternatives to a criminal defendant serving his full sentence. That court, in its unpublished opinion, pointed out that Caldwell concerned the prosecutor's misleading comments on appellate review and the finality of the jury's decision, and that California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), makes clear that accurate information given to the jury about post-sentencing procedures was not prohibited. Gilliard v. Thigpen, No. H85-0077(N),...