Simmons v. State, No. 2002-DR-00196-SCT.

• Decision Date: 29 January 2004
• Docket Number: No. 2002-DR-00196-SCT.
• Citation: 869 So.2d 995
• Parties: Gary Carl SIMMONS, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

869 So.2d 995

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

No. 2002-DR-00196-SCT.

Supreme Court of Mississippi.

January 29, 2004.

Rehearing Denied April 22, 2004.

Office of Capital Post-Conviction Counsel by Robert M. Ryan, attorney for appellant.

Office of the Attorney General by Judy T. Martin Marvin L. White, Jr., attorneys for appellee.

EN BANC.

SMITH, Presiding Justice, for the Court.

¶ 1. Gary Carl Simmons, Jr., was convicted of capital murder and sentenced to death for the murder of Jeffery Wolfe. Simmons was also convicted of the rape and kidnaping of Wolfe's female companion. On direct appeal Simmons raised twenty-seven issues. This Court found those issues to be without merit and affirmed Simmons's conviction and death sentence. See Simmons v. State, 805 So.2d 452 (Miss.2001),

cert. denied, 537 U.S. 833, 123 S.Ct. 142, 154 L.Ed.2d 51 (2002).

¶ 2. Simmons subsequently filed his Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, Supplement/Amendment to Petition for Post-Conviction Relief, Correction to Supplement/Amendment, and Supplemental Authority with this Court. The State has filed its Response, and Simmons has filed his Reply Brief.

¶ 3. Simmons's Petition for Post-Conviction Relief raises the following issues:

I. PETITIONER WAS UNFAIRLY DENIED BY THE TRIAL COURT OF HIS RIGHT TO PRESENT TO THE TRIAL JURY A VIDEOTAPE HE HAD MADE WITHIN HOURS AFTER THE OFFENSE IN WHICH HE HAD EXPRESSED REMORSE, HUMANITY AND DEMEANOR PARTICULARLY AT THE PENALTY PHASE, IN VIOLATION OF ESTABLISHED FEDERAL AND STATE CASE LAW.

II. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND v. WASHINGTON.

A. Trial Counsel's Inadequate Investigation and Presentation of Mitigation Factors at the Penalty Phase.

B. DNA Evidence.

C. Cumulative Effect of Counsel's Failure to Make Contemporaneous Objections to Damaging Testimony, the Result of Which was Ineffective Assistance of Counsel Within the Meaning of Strickland v. Washington.

III. SIMMONS WAS DENIED THE EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL AND THE FAILURE OF THE TRIAL COURT TO INQUIRE INTO THE CONFLICT VIOLATED HIS FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AND CORRESPONDING PROVISIONS OF THE MISSISSIPPI CONSTITUTION.

IV. THE MITIGATION TESTIMONY OF LORI SIMMONS, EX-WIFE OF THE PETITIONER, WAS UNFAIRLY LIMITED BY THE TRIAL COURT AND AS A RESULT SIMMONS WAS DENIED HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO CALL WITNESSES TO TESTIFY ON HIS BEHALF.

V. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.

VI. THE PETITIONER'S MOTIONS FOR A CONTINUANCE SHOULD HAVE BEEN GRANTED AND THE FAILURE TO DO SO WAS REVERSIBLE ERROR.

VII. THE SENTENCE RENDERED AGAINST PETITIONER GARY CARL SIMMONS IS DISPROPORTIONATE TO THAT OF HIS CO-DEFENDANT, THE PERSON WHO SHOT AND KILLED JEFFERY WOLFE, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING

PORTIONS OF THE MISSISSIPPI CONSTITUTION.

VIII. PETITIONER WAS DENIED HIS RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL TRIAL.

¶ 4. Simmons's Supplement/Amendment to Petition raises the following supplemental issues:

IX. THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE WERE NOT INCLUDED IN SIMMONS' INDICTMENT AND THEREFORE HIS DEATH PENALTY MUST BE VACATED.

A. In Ring v. Arizona, the U.S. Supreme Court held that aggravating circumstances function as elements of the offense of capital murder.

B. In its requirement that at least one aggravating circumstance be found before the death penalty can be imposed, Mississippi's capital sentencing scheme is indistinguishable from the Arizona scheme rejected in Ring.

C. Capital murder may be charged only upon an indictment alleging all of the elements of the crime to be proved.

X. THE TRIAL COURT ERRED IN CHARGING THE TRIAL JURY WITH STATE REQUESTED INSTRUCTION S-11 AS THE SAME IS AN INCORRECT STATEMENT OF THE LAW OF THE STATE AND AS A RESULT SIMMONS WAS UNFAIRLY PREJUDICED AND DENIED A FUNDAMENTALLY FAIR TRIAL.

¶ 5. The State has moved to strike the issues raised in the Supplement/Amendment, saying they could have been raised earlier. We deny the motion to strike, as this Court granted Simmons time to supplement his initial Petition for Post-Conviction Relief, and the Supplement/Amendment was filed as a result.

FACTS

¶ 6. Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County, Mississippi, in August 1996 to collect money owed Wolfe from a drug transaction. Wolfe and Leaser met with Gary Simmons and Timothy Milano at Simmons's house on the evening of August 12. Initially the men discussed the money owed to Wolfe, but after failing to resolve the matter Milano shot Wolfe with a .22 caliber rifle. Simmons then bound Leaser and locked her in a metal box. Leaser tried repeatedly to escape from the box, and on one occasion Simmons heard her attempting to escape, removed her from the box and raped her. He then returned her to the box. Simmons then dismembered Wolfe's body and dumped the various body parts in the bayou behind his house. Leaser eventually escaped and convinced a neighbor to call the police.

DISCUSSION

I. EXCLUSION OF A VIDEOTAPE.

¶ 7. Simmons made a videotape of himself after the murder of Wolfe and sent it to his wife, who in turn delivered it to his lawyer. The videotape was eventually produced to the State. Simmons did not testify at trial but attempted to introduce the videotape. The trial court excluded the videotape, and Simmons raised this as error on direct appeal. This Court found that the videotape inadmissible because it was hearsay and not relevant. Simmons, 805 So.2d at 488. Three members of the Court acknowledged that the videotape was properly excluded in the guilt phase of the trial, but found that it should have been admitted during the sentencing phase as part of Simmons's mitigating evidence. Simmons, 805 So.2d at 508-11 (Diaz, J., concurring in part and dissenting in part).

¶ 8. Simmons argues that it was error for the trial court to exclude the videotape during the sentencing phase because (1) it showed remorse by Simmons and would have rebutted the prosecution's argument during sentencing that Simmons showed no remorse and (2) the admission of evidence should be relaxed during the sentencing hearing.

¶ 9. The State argues that Simmons's argument is barred under Miss.Code Ann. § 99-39-21, which provides in part:

(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

(2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.

(3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

¶ 10. We agree and hold that Simmons's argument is barred by res judicata.

II. EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 11. This Court has stated the following on ineffective assistance of counsel and the standard provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 466 U.S. 668, 104 S.Ct. 2052. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.

Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'

Stringer, 454 So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Defense counsel is presumed competent. Id.

Then, to determine the second prong of prejudice to the defense, the standard is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been

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