Simmons v. State
Citation | 805 So.2d 452 |
Decision Date | 13 December 2001 |
Docket Number | No. 97-DP-01550-SCT.,97-DP-01550-SCT. |
Parties | Gary Carl SIMMONS, Jr., v. STATE of Mississippi. |
Court | United States State Supreme Court of Mississippi |
John Holdridge, Robert Michael Cunningham, William Harvey Barton, Attorneys for Appellant.
Office of the Attorney General by Marvin L. White, Jr., Judy T. Martin, Jackson, Attorneys for Appellee.
En Banc.
SMITH, P.J., For The Court.
s 1. On October 11, 1996, Gary Carl Simmons, Jr. (Simmons), and Timothy John "Timmy" Milano (Milano) were indicted for the capital murder of Jeffery Wolfe, while engaged in the commission of a robbery. Simmons and Milano were also indicted for the kidnaping and rape of Charlene Brooke Leaser. Simmons was arraigned in the Circuit Court of Jackson County on January 9, 1997, and pled not guilty to the pending charges. One month later, the trial judge appointed two attorneys, W. Harvey Barton and R. Michael Cunningham, to represent Simmons, an indigent. Milano's trial was severed from Simmons. On February 21, 1997, the trial judge granted a change of venue motion to allow jury selection from the venire in Lauderdale County, but then held that the remainder of the trial would be conducted in Jackson County, sequestering the jury for the duration of the trial.
s 2. The trial began on August 25, 1997, and four days later, the jury returned a guilty verdict on all three counts of the indictment. For the kidnaping and rape, Simmons was sentenced to separate life sentences. A separate sentencing hearing was held on the capital murder conviction and the jury found unanimously that Simmons should suffer death. Immediately thereafter, the trial judge sentenced Simmons to die by lethal injection on the capital murder charge and to two consecutive life sentences for the kidnaping and rape convictions.
s 3. Simmons's motion for a new trial and amended motion for a new trial were both denied by Judge Jones. Simmons' automatic direct appeal is now before this Court raising twenty-seven alleged errors at trial for consideration by this Court.
s 4. Finding no error, we affirm the trial court, upholding Simmons's guilty verdict and sentence of death as well as the two consecutive sentences of life imprisonment.
s 5. Before proceeding to the facts, the State asserts that Simmons's assignments of error numbered IV, VIII, XVI, XVIII, XIX, XX, XXII, XXIII, XXIV, and XXV should be procedurally barred from consideration by this Court. The State argues that the issues were not presented to the trial court and are therefore not properly before this Court. The State alleges that the error, if any, is waived due to the procedural bar. It has been repeatedly held that the procedural bar rule is not diminished in a capital case. Cole v. State, 525 So.2d 365, 369 (Miss.1987); Irving v. State, 498 So.2d 305 (Miss.1986); Johnson v. State, 477 So.2d 196 (Miss. 1985); In re Hill, 460 So.2d 792 (Miss. 1984); Hill v. State, 432 So.2d 427 (Miss. 1983); Chase v. State, 645 So.2d 829, 845 (Miss.1994); Foster v. State, 639 So.2d 1263, 1270 (Miss.1994).
s 6. Simmons, in his reply brief, points out that this Court has "repeatedly relaxed the procedural bar rule in capital cases," citing Harrison v. State, 635 So.2d 894 (Miss.1994). Simmons also quotes from Pinkney v. State, which said:
We have in death penalty cases the prerogative of relaxing out contemporaneous objection and plain error rules when the interest of justice so requires. Because the death penalty is a different sort of punishment with more severe consequences than other sentences, this Court's scrutiny of such cases is correspondingly heightened. In capital cases, the procedural bar is sometimes relaxed because of the nature of the right asserted. Also, this Court has relaxed its procedural bar to consider serious, cumulative errors. Even in capital cases procedural bars appear to be applied, based on a number of factors, on a case by case basis.
Pinkney v. State, 538 So.2d 329, 338 (Miss. 1988) (citations omitted). While these allegations of error are procedurally barred, we will address the merits of the underlying claims in the order raised by Simmons knowing that any subsequent review will stand on the procedural bar alone. Chase v. State, 645 So.2d at 845; Foster v. State, 639 So.2d at 1270.
FACTS
s 7. In the early morning hours of August 11, 1996, Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County, Mississippi. They had only known each other a few weeks. Wolfe asked Leaser to accompany him on a trip to the Gulf Coast to "pick up some money" from some friends that were in his debt. Leaser later learned that the debt accrued some weeks earlier from a transaction involving drugs. While on the Gulf Coast, Wolfe also planned to buy new wheel rims and tires for his vehicle and then return through New Orleans with Leaser for a short vacation. Wolfe left Houston with twelve hundred dollars in his wallet. Leaser had approximately two hundred dollars in her purse.
s 8. Upon their arrival on the Mississippi Gulf Coast, they checked into the King's Inn Hotel. Wolfe and Leaser fell asleep. Wolfe awoke early and left Leaser at the Hotel to meet Sonny Milano, Timothy Milano's brother, who worked at a local tire store. Apparently, they met a few weeks earlier while Wolfe was on the Coast conducting his illicit business deal. Later that afternoon, Wolfe and Sonny returned to the hotel room to pick up Leaser for dinner. Sonny Milano left to get his girlfriend and the four met in Wolfe and Leaser's room at the hotel. They all took Wolfe's white Honda Civic to Shoney's where they dined together.
s 9. Sonny Milano testified that during dinner, Wolfe asked if Sonny planned to go to Simmons' house that evening. Sonny Milano, over loud protests from his girlfriend, decided to go to Simmons' house, arriving there late that evening after dropping her off. When he arrived, Simmons and Sonny's brother, Milano, were the only two at the house. Simmons asked Sonny if he had seen Wolfe and Sonny told him that they ate dinner together. Simmons asked Sonny to get in touch with Wolfe. Sonny contacted Wolfe at his hotel room and told Wolfe that he was at Simmons's house. Wolfe was pleasantly surprised to hear that Sonny was there, since Sonny's girlfriend was opposed to his going. Wolfe told Sonny that he would be there in a minute.
s 10. Sonny conveyed this information to Simmons, who less than one minute later, approached Sonny as he talked to Milano and asked him to leave the house. Sonny testified that he did not find this unusual because "that's just Gary." Sonny left without explanation, with Wolfe on his way.
s 11....
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