Hill v. State
| Decision Date | 21 December 1994 |
| Docket Number | No. 93-DP-00392,93-DP-00392 |
| Citation | 659 So.2d 547 |
| Parties | Alvin HILL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
James W. Craig, Jane E. Tucker, 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.
En Banc.
Alvin Hill was convicted of capital murder and sentenced to death by virtue of jury verdicts returned in the Circuit Court of DeSoto County on November 20 and 21, 1980, respectively.
Hill's conviction and sentence were affirmed by this Court on direct appeal in Hill v. State, 432 So.2d 427 (Miss.1983), cert. denied 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983). Appeals by Hill have progressed through the state and federal courts in a post-conviction context since 1984. See In re Alvin Hill, 460 So.2d 792 (Miss.1984); In re Alvin Hill, 467 So.2d 669 (Miss.1985); Hill v. Thigpen, 667 F.Supp. 314 (N.D.Miss.1987); Hill v. Black, 887 F.2d 513 (5th Cir.1989); Hill v. Black, 891 F.2d 89 (5th Cir.1989); Hill v. Black, 498 U.S. 801, 111 S.Ct. 28, 112 L.Ed.2d 6 (1990); Hill v. Black, 920 F.2d 249 (5th Cir.1990), and Hill v. Black, 932 F.2d 369 (5th Cir.1991).
On April 15, 1992, the Court of Appeals for the Fifth Circuit entered an order in Hill v. Lucas, Cause No. 87-4922, postponing any decision on Hill's second petition for rehearing and suggestion for rehearing en banc "pending Mississippi's resolution of Alvin Hill's now pending state court petition for post-conviction relief, No. 03-DP-23." At the present hour, Hill's third application for post-conviction relief is certainly ripe for decision.
The dispositive point in question implicated in the sentencing phase is the one dealing with the "especially, heinous, atrocious or cruel" aggravating factor found in Miss.Code Ann. § 99-19-101(5)(h). This factor was submitted to the jury for consideration without the benefit of a limiting or definitional instruction.
Specifically, the sentencing jury in Hill's case was instructed that it could consider as an aggravating circumstance that "[t]he capital offense was especially heinous, atrocious or cruel." No limiting definition of this aggravator was communicated to the jury. Intervening decisions issued by the Supreme Court of the United States since Hill's trial for capital murder have demonstrated that this omission is error and potentially fatal to a sentence of death. Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).
The posture of Hill's third and most recent motion for post-conviction relief is controlled by our recent decisions of Wilcher v. State, 635 So.2d 789 (Miss.1993); Wiley v. State Given the stance taken by a majority of justices voting in Wilcher, this Court has foreclosed the idea of reweighing aggravating versus mitigating factors or performing a harmless error analysis. Hill has successfully hurdled any statutory or case-created bars that might have precluded our consideration of this issue.
635 So.2d 802 (Miss.1993); and Woodward v. State, 635 So.2d 805 (Miss.1993). Our holding in this trilogy is viable precedent for vacating the judgment of death imposed against Hill and remanding this cause to the Circuit Court of DeSoto County for a new sentencing hearing.
Our task in death penalty cases where, as here, an unconstitutionally vague aggravator is submitted to the jury, is to review, not reweigh. By virtue of Miss.Code Ann. § 99-19-101, the weighing of aggravating circumstances is a jury function. Wilcher compels us to remand Hill's case for a new sentencing hearing.
Hill complains, for the third time in this Court, that he is entitled to relief from the guilt-finding phase because he was denied lesser included offense instructions authorizing the jury to find him guilty of either murder less than capital or manslaughter. Consideration and reconsideration of this issue is barred because the identical issue was considered and decided adversely to Hill on direct appeal, Hill v. State, 432 So.2d at 440-41, and again on his second motion for leave to file in the lower court a writ of error coram nobis. In re Hill, 467 So.2d at 671-72.
Hill's attempt to revive this claim runs afoul of the res judicata bar found in Miss.Code Ann. § 99-39-21(3), as well as the direct appeal bar found in § 99-39-21(2), the successive writ bar found in § 99-39-27(9), and the bar imposed by the three-year statute of limitations contained in § 99-39-5(2).
We hold, therefore, that Hill is not entitled to post-conviction relief with respect to the guilt-finding phase. Hill's application for leave to file in the trial court a motion to vacate conviction of capital murder and Hill's motion to vacate his conviction of capital murder are both DENIED.
Because, on the other hand, Miss.Code Ann. § 99-19-101 (Supp.1993), precludes this Court from performing either a reweighing of aggravating versus mitigating factors or a harmless error analysis as a matter of state law, Hill's application for leave to file a motion to vacate death sentence and his motion to vacate death sentence are GRANTED.
Hill's sentence of death is vacated, and this case is remanded to the Circuit Court of Desoto County for a new sentencing hearing.
Hill's Motion For Leave To Proceed In Forma Pauperis is GRANTED.
Hill's Motion To Stay Proceedings is DENIED.
The State of Mississippi's Motion To Expedite is DENIED as moot.
HILL'S APPLICATION FOR LEAVE TO FILE MOTION TO VACATE CONVICTION DENIED. HILL'S APPLICATION FOR LEAVE TO FILE MOTION TO VACATE DEATH SENTENCE GRANTED AND REMANDED TO THE CIRCUIT COURT OF DESOTO COUNTY FOR A NEW SENTENCING HEARING. HILL'S MOTION TO STAY PROCEEDINGS DENIED. HILL'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS GRANTED. STATE'S MOTION TO EXPEDITE DENIED. STATE'S MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED.
I would affirm as being procedurally barred.
Under Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 1450-51, 108 L.Ed.2d 725, 741-42 (1990), an appellate court in a weighing state can affirm a death sentence "tainted" by a vague aggravating instruction as to the especially heinous, atrocious or cruel circumstances of the homicide so long as the court found that the vague aggravating instruction constituted harmless error beyond a reasonable doubt. Id., 494 U.S. at 753, 110 S.Ct. at 1451, 108 L.Ed.2d at 741 ( Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967)).
Consistent with my dissenting opinions in Irving v. State, 618 So.2d 58, 63-64 (Miss.1992), Wilcher v. State, 635 So.2d 789, 801 (Miss.1993), and Wiley v. State, 635 So.2d 802, 805 (Miss.1993), I believe this is also a proper case for this Court to find that the vague aggravating instruction concerning especially heinous, atrocious or cruel circumstances of the homicide as defined in Clemons, was, at the most, harmless error beyond a reasonable doubt. Therefore, I would deny Hill's Motion to Vacate Death Sentence.
SMITH, J., joins this opinion.
I concur in the majority decision that Hill is not entitled to post-conviction relief with respect to the guilt-finding phase. I also agree with the decision denying Hill's application for leave to file in the trial court a motion to vacate his conviction of capital murder. However, I must take exception to the majority decision granting Hill's third time complaint that he is entitled to relief from the sentencing phase and that his sentence of death should be vacated. I would affirm as being procedurally barred.
The majority opinion preserves this Court's confidence in the results of Gilliard v. State, 614 So.2d 370 (Miss.1992), in which this Court held Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), to be an intervening decision and thus controlling in Gilliard. Subsequent to Gilliard, this Court handed down similar opinions with identical controlling findings in a series of cases including Wilcher v. State, 635 So.2d 789 (Miss.1993), and Wiley v. State, 635 So.2d 802 (Miss.1993). I dissented from the majority opinion in both Wilcher and Wiley, maintaining that Clemons was not an intervening decision, but rather re-affirming and strengthening of a legal concept first established by the United States Supreme Court in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). At the least this Court should apply harmless error to the case sub judice. I prefer my applicable reasoning and results in my dissent in Wilcher and adopt those appropriate portions of that opinion in support of this dissenting view.
The majority view in Clemons v. State, 593 So.2d 1004 (Miss.1992), should have applied the test set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), thereby altering their decision in Clemons and the subsequent series of similar holdings in other death penalty cases during 1992 and 1993. Hill's case is an "appropriate" case to uphold the jury's sentence of death.
DAN M. LEE, P.J., and JAMES L. ROBERTS, Jr., J., join this opinion.
En banc.
ON PETITION FOR REHEARING
[Filed June 29, 1995]
I. INTRODUCTION
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