Gollott v. State

• Decision Date: 01 December 1994
• Docket Number: No. 91-KA-00511,91-KA-00511
• Citation: 646 So.2d 1297
• Parties: Francis Ray GOLLOTT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1297

646 So.2d 1297

Francis Ray GOLLOTT v. STATE of Mississippi.

No. 91-KA-00511.

Supreme Court of Mississippi.

Dec. 1, 1994.

Gail D. Nicholson and Chester D. Nicholson, Nicholson & Nicholson, Gulfport, for appellant.

Michael C. Moore, Atty. Gen., Kenneth C. O'Neal, and Jolene M. Lowry, Sp. Asst. Attys. Gen., Jackson, for appellee.

En Banc.

SULLIVAN, Justice, for the Court:

Francis Ray Gollott (Gollott) was first brought to trial on February 28, 1990, and prosecuted for the murder of his wife, Billie Diane Gollott, in the Circuit Court of Hancock County, Mississippi--venue had been changed from the Second Judicial District of Harrison County because of pretrial publicity. The first trial resulted in a hung jury. Gollott's second trial commenced in February 1991 and resulted in a conviction of manslaughter. He was sentenced to fifteen (15) years incarceration, with three (3) years suspended, in the custody of the Mississippi Department of Corrections.

Gollott perfected his appeal to this Court and briefing by the parties was concluded on June 15, 1992. A civil suit for wrongful death, Stacy Pitalo, Individually and as Administratrix of the Estate of Billie Dianne Gollott, Tracy Pratt and Marla Dawn Gollott vs. Francis Ray Gollott, Cause Number 2924, was filed against him by his three adopted daughters. The wrongful death suit was held in abeyance pending the resolution of his appeal of the manslaughter conviction.

Gollott died of a heart attack on November 16, 1993. On November 29, 1993, his counsel filed a Motion for a Decision on the Merits, claiming that Gollott's death does not render his appeal moot because his estate would be severely prejudiced in its defense of the wrongful death suit if the manslaughter conviction is allowed to stand without full adjudication on the merits. The State filed a Suggestion of Death and Motion to Dismiss Appeal on December 6, 1993, arguing that the appeal is moot, citing Haines v. State, 428 So.2d 590 (Miss.1983), and Berryhill v. State, 492 So.2d 288 (Miss.1986).

The parties were then required to file briefs in support of their motions for consideration by this Court. There is one issue for our consideration:

Whether the vested right to a direct appeal terminates, leaving the conviction intact, upon the death of a defendant pending appeal?

We have thus far held that when a defendant dies pending his criminal appeal, the appeal is dismissed as moot and the conviction remains intact. Haines and Berryhill, supra. We reasoned that upon conviction, the defendant is no longer presumed innocent, and therefore, abatement ab initio (the view that the entire criminal proceeding is void from its inception; judgment is vacated and remanded with instructions to dismiss the indictment), which is the majority rule in the federal and state courts, is not an acceptable approach. Furthermore, the comment to Supreme Court Rule 43(a), Substitution of Parties, citing Berryhill, 492 So.2d 288 (Miss.1986), states that the rule only allows for substitution upon the death of a party in civil actions, not criminal cases.

In both Haines and Berryhill this Court was asked by the representative of the defendant to follow the majority rule, abatement ab initio. We declined to adopt that approach, and in Haines, 428 So.2d at 592 f.n. 1, stated:

Suppose a so-called "mad dog killer" was convicted of capital murder and sentenced to death for an atrocious, heinous and especially cruel crime. His conviction was appealed here as required by law, but before decision by this Court he died. Under the majority rule, the judgment of conviction and indictment would be vacated and dismissed--an obvious miscarriage of justice.

We are no longer of the opinion that the abatement ab initio rule obviously results in a "miscarriage of justice." There are essentially three reasons for penal statutes in our justice system: (1) to protect society from dangerous individuals; (2) to hopefully rehabilitate convicted criminals; and, (3) to deter others from violating the law. Following the abatement ab initio rule does not undermine any of these purposes. What is obvious is that society needs no protection from the deceased, nor can the deceased be rehabilitated. Moreover, other potential criminals will be no less deterred from committing crimes. In the abatement ab initio scheme, the judgment is vacated and the indictment is dismissed, but only because the convicted defendant died. Surely this would not give peace of mind to the criminally inclined.

This is not to say that the abatement ab initio rule is without its problems. Possibly, the "miscarriage of justice" referred to in the Haines opinion lies in the idea that a conviction of the "mad dog killer" benefits society as an inherently good thing, even when the conviction has been appealed but not heard, coupled with the belief that the deceased "mad dog killer" absolutely does not deserve to have his name cleared.

To be sure, a man guilty of such heinous crimes does not deserve to have his name cleared; however, in this hypothetical situation, the "mad dog killer" does not have his "good name" restored when the majority approach is followed. Abatement ab initio is not the same as being found innocent by a jury. Rather, the conviction is simply vacated because the defendant appealed as of right, and until the appellate Court has heard that appeal, the matter has not been fully adjudicated.

Gollott's counsel makes a valid point when she states that if the abatement ab initio rule is perceived to be unjust, it is equally unjust to allow a conviction to stand and be used against the deceased's estate for various collateral matters as if the appeal had been heard and the conviction affirmed. It is true that upon conviction of a criminal defendant, the presumption of innocence is replaced by a presumption that the conviction is valid which may only be rebutted by a finding of reversible error on appeal. Haines, 428 So.2d at 591; citing, Nicholson v. State, 254 So.2d 881, 884 (Miss.1971). However, allowing the conviction to stand when the defendant has perfected his direct appeal to this Court, pursuant to Miss.Code Ann. Sec. 99-35-101 (1972), as Amended, without fully adjudicating the appeal, is not merely a presumption that the conviction is valid, but has the same effect as if this Court were to pronounce that the appeal is meritless.

The United States Supreme Court has held that direct appeals of right and pending petitions for certiorari should be abated ab initio when the defendant dies pending appeal. Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). However, a more recent pronouncement from the United States Supreme Court drew a distinction between appeals of right and petitions for certiorari, overruling Durham to the extent that it applied to pending petitions for certiorari. The Court held that when the defendant has exhausted his right to appeal, but dies pending determination of a certiorari petition, the proceedings should be deemed moot at that point, and the conviction should remain intact. Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976).

The Fifth Circuit Court of Appeals noted that "the other Courts of Appeals have unanimously concluded that Dove applies only to petitions for certiorari, not appeals of right." United States v. Pauline, 625 F.2d 684, 685 (5th Cir.1980); citing, United States v. Bechtel, 547 F.2d 1379 (9th Cir.1977); United States v. Moehlenkamp, 557 F.2d 126 (7th Cir.1977); United States v. Littlefield, 594 F.2d 682 (8th Cir.1979).

Gollott's counsel states that this Court has never specifically addressed a request to proceed with an appeal after the defendant's death. She argues that a full review of the judgment is in the best interest of all parties and society. She furthermore states that Supreme Court Rule 43(a) could be construed to allow for substitution of the deceased in a criminal case, as that is not expressly prohibited by the rule. While it is true that we have never rendered an opinion specifically addressing a request of this nature, the Haines Court quoted Whitehouse v. State, 266 Ind. 527, 364 N.E.2d 1015, 1016 (Ind.1977), and approved that court's expression of the minority view, wherein it was stated:

[I]f the judgment of the trial court were affirmed, it would, nevertheless be impossible of execution. If it were reversed, the defendant would not be available for trial. It follows that no state interest can be served by proceeding. At the same time, a reversal cannot benefit the defendant.

In none of the cases reviewed have survivor interests of third parties been suggested. Undoubtedly, in some cases, the standing conviction may be consequential to such interests. Such, however, could not have been a factor for consideration in the trial proceedings and could not have been a factor in the appeal, had it been concluded. The presumption of innocence falls with a guilty verdict. At that point in time, although preserving all of the rights of the defendant to an appellate review, for good and sufficient reasons we presume the judgment to be valid, until the contrary is shown. To wipe out such a judgment, for any reason other than a showing of error, would benefit neither party to the litigation and appears to us likely to produce undesirable results in the area of survivor's rights in more instances that (sic) it would avert an injustice. It, therefore, is our opinion that it would be unwise for us to reach out to adopt a policy favoring survivor interests of questionable validity. In arriving at this decision, we do not cut off any rights that survivors may now or hereafter have. Whether or not the bona fides of a conviction may yet be tested by survivors in cases where the appeals were aborted by death is a question best left for litigation confined within the parameters of the interests claimed.

428 So.2d at 591-92. By this Court's approval of...