Simmons v. State, No. 97-DP-01550-SCT.

CourtUnited States State Supreme Court of Mississippi
Citation805 So.2d 452
PartiesGary Carl SIMMONS, Jr., v. STATE of Mississippi.
Docket NumberNo. 97-DP-01550-SCT.

805 So.2d 452

Gary Carl SIMMONS, Jr.,
v.
STATE of Mississippi

No. 97-DP-01550-SCT.

Supreme Court of Mississippi.

December 13, 2001.

Rehearing Denied February 7, 2002.


805 So.2d 465
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

805 So.2d 466
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.

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S SELF-DEFENSE INSTRUCTION.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MANSLAUGHTER INSTRUCTION.
III. THE TRIAL COURT'S RULINGS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE.
IV. THE TRIAL COURT ERRED BY GRANTING TWO OF THE PROSECUTION'S INSTRUCTIONS DURING THE GUILT-INNOCENCE PHASE OVER THE DEFENDANT'S OBJECTIONS.
V. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT AS THE JURY'S FINDING THAT A ROBBERY WAS COMMITTED WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OVERRULING THE DEFENDANT'S MOTION FOR A MISTRIAL CONCERNING CERTAIN TESTIMONY OFFERED BY DENNIS GUESS.
VII. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
VIII. THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTION TO ADDUCE EVIDENCE CONCERNING AN ALLEGED BURGLARY OF THE VICTIM'S ROOM AT THE KING'S INN HOTEL.
IX. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
805 So.2d 467
THE DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OBTAINED AS A PART OF AN ILLEGAL SEARCH AND SEIZURE.
X. THE TRIAL COURT ERRED BY ALLOWING THE EXPERT WITNESS TESTIMONY OF DEBORAH HALLER INTO EVIDENCE OVER OBJECTION FROM DEFENSE COUNSEL.
XI. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR A CONTINUANCE.
XII. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION IN LIMINE TO EXCLUDE CERTAIN PHOTOGRAPHS FROM ADMISSION INTO EVIDENCE.
XIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN RULING ON VARIOUS MATTERS IN THE GUILT PHASE OF THE TRIAL.
XIV. THE TRIAL COURT ERRED IN EXCLUDING A VIDEOTAPE OF THE DEFENDANT MADE HOURS AFTER THE COMMISSION OF THE CRIMES IN WHICH THE DEFENDANT DISCUSSES THE CRIMES AND EXHIBITS REMORSE FOR HIS PART IN COMMITTING THEM.
XV. THE PROSECUTOR ENGAGED IN MISCONDUCT REQUIRING REVERSAL.
XVI. THE TRIAL COURT ERRED BY SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.
XVII. THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS IN ITS RULINGS DURING THE SENTENCING PHASE OF THE TRIAL.
XVIII. THE TRIAL COURT ERRED BY GRANTING MANY OF THE PROSECUTION'S INSTRUCTIONS DURING THE SENTENCING PHASE OF THE TRIAL.
XIX. THE TRIAL COURT ERRED BY REQUIRING THE DEFENSE TO EXERCISE SOME OF ITS PEREMPTORY CHALLENGES PRIOR TO THE PROSECUTION TENDERING TWELVE ACCEPTED JURORS.
XX. THE TRIAL COURT ERRED IN THE PROCEDURE IT USED IN SELECTING THE COUNTY FOR THE CHANGE OF VENUE.
XXI. THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS DURING THE "DEATH/LIFE" QUALIFICATION COMPONENT OF VOIR DIRE.
XXII. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTION TO OBTAIN A PROMISE FROM PROSPECTIVE JURORS TO RETURN A SPECIFIC
805 So.2d 468
VERDICT UNDER A SPECIFIC SET OF CIRCUMSTANCES.
XXIII. THE TRIAL COURT ERRED BY LIMITING THE VENIRE IN LAUDERDALE COUNTY.
XXIV. THE TRIAL COURT ERRED BY ALLOWING THE SELECTED JURORS TO RETURN HOME AND PACK CLOTHING FOR THE WEEK BEFORE BEING SEQUESTERED.
XXV. THE DEFENDANT HAS BEEN DENIED HIS RIGHT TO A MEANINGFUL APPEAL.
XXVI. MISSISSIPPI'S CAPITAL PUNISHMENT SCHEME IS UNCONSTITUTIONAL AND THE IMPOSITION OF THE DEATH PENALTY IN THIS CASE IS DISPROPORTIONATE.
XXVII. THE ERRORS TAKEN TOGETHER IN THIS CASE WARRANT REVERSAL.

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

805 So.2d 469
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...

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222 practice notes
  • Edmonds v. State, No. 2004-CT-02081-SCT (Miss. 1/4/2007), No. 2004-CT-02081-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 2007
    ...any statements against interest,2 testimony pertaining to these statements may not be excluded as hearsay. See also Simmons v. State, 805 So. 2d 452, 488 (Miss. 2001) (hearsay exception of admissibility statement against interest applicable only where a defendant is unavailable). Rule 804(b......
  • Byrom v. State, No. 2001-DP-00529-SCT.
    • United States
    • Mississippi Supreme Court
    • October 16, 2003
    ...So.2d at 1224. "Failure to cite relevant authority obviates the appellate court's obligation to review such issues." Simmons v. State, 805 So.2d 452, 487 (Miss.2001) (citing Williams v. State, 708 So.2d 1358, 1362-63 (Miss.1998)). Consequently, this issue is not properly before the Court an......
  • Rubenstein v. State, No. 2000-DP-00727-SCT.
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    • United States State Supreme Court of Mississippi
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    ...discretion of the trial court and this Court should only reverse where it is clear that discretion has been abused." Simmons v. State, 805 So.2d 452, 487-88 (Miss.2001). There was no abuse in this ¶ 89. Rubenstein's argument that the trial court failed to issue a limiting instruction is als......
  • Jackson v. State, No. 98-DR-00708-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 7, 2003
    ...merits, this Court has repeatedly held that "Mississippi's capital sentencing scheme, as a whole, is constitutional." Simmons v. State, 805 So.2d 452, 496-97 (Miss.2001). See also Puckett v. State, 737 So.2d 322, 363 (Miss. 1999); Woodward v. State, 726 So.2d 524, 528 (Miss.1997). Further, ......
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  • Hodges v. State, No. 2002-DP-00337-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • June 9, 2005
    ...sentence with "heightened scrutiny" under which all bona fide doubts are resolved in favor of the accused. Simmons v. State, 805 So.2d 452, 472 (Miss.2001) (citing Porter v. State, 732 So.2d 899, 902 (Miss.1999)). Further, this Court is cognizant of the fact that what may be harml......
  • Howard v. State, No. 2000-DP-01280-SCT.
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    ...See also Pruitt v. State, 807 So.2d 1236, 1239-40 (Miss.2002); Powell v. State, 806 So.2d 1069, 1076-77 (Miss.2001); Simmons v. State, 805 So.2d 452, 479 (Miss.2001); Sanders v. State, 801 So.2d 694, 702 (Miss.2001); Spry v. State, 796 So.2d 229, 232 853 So.2d 797 ¶ 48. Howard cites no auth......
  • Jackson v. State, No. 98-DR-00708-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 7, 2003
    ...this Court has repeatedly held that "Mississippi's capital sentencing scheme, as a whole, is constitutional." Simmons v. State, 805 So.2d 452, 496-97 (Miss.2001). See also Puckett v. State, 737 So.2d 322, 363 (Miss. 1999); Woodward v. State, 726 So.2d 524, 528 (Miss.1997). Further......
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    ...weight of the evidence supports the guilty verdict." (citations omitted). Additionally, this Court, in Simmons v. State, 805 So.2d 452 (Miss.2001), held that the cumulative effect of errors, even in a murder trial, will not warrant reversal. Also cited in Simmons was Doss v. State, 709......
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