McGilberry v. State
| Docket Number: | 2000-DR-00343-SCT Linked Case(s): 2000-DR-00343-SCT ; 2000-DR-00343-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-06-2003 Opinion Author: Waller, J. Holding: Petitions for Post-Conviction Collateral Relief, Denied. |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Probable cause for arrest - Juror misconduct - Shackles - Especially heinous, atrocious or cruel aggravator - Great risk of death aggravator - Underlying felony of robbery - Closing argument - Ineffective assistance of counsel - Cruel and unusual punishment - International law - Cumulative error - Transfer to youth court Judge(s) Concurring: Pittman, C.J., Smith, P.J., Cobb, Diaz, Easley, Carlson and Graves, JJ. Dissenting Author : McRae, P.J. Procedural History: Jury Trial Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 02-12-1996 Appealed from: Jackson County Circuit Court Judge: James W. Backstrom Disposition: The Appellant was convicted of capital murder and sentenced to death. Case Number: 9410614 |
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| Note: | Motions to Amend and Supplement the Petitions for Post-Conviction Relief filed by the petitioner are granted. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Stephen Virgil McGilberry |
ROBERT M. RYAN
DAVID P. VOISIN
STACY PREWITT |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR. CHARLENE R. PIERCE JEFFREY A. KLINGFUSS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Death penalty post-conviction relief - Probable cause for arrest - Juror misconduct - Shackles - Especially heinous, atrocious or cruel aggravator - Great risk of death aggravator - Underlying felony of robbery - Closing argument - Ineffective assistance of counsel - Cruel and unusual punishment - International law - Cumulative error - Transfer to youth court |
| Summary of the Facts: | Stephen McGilberry was convicted of four counts of capital murder committed when he was sixteen years old, and he was sentenced to death. His conviction and sentence were affirmed on appeal. He has now filed a petition for post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: Probable cause for arrest McGilberry argues that police had no probable cause to arrest him at the time he arrived at the crime scene and that he received ineffective assistance of counsel because his attorney failed to challenge the probable cause for his arrest. However, probable cause existed based on the facts that McGilberry was the only surviving member of the family, that the victim's car was missing, and that McGilberry's car was not missing. This issue was correctly decided on direct appeal and is therefore procedurally barred. Issue 2: Juror misconduct McGilberry argues that a juror did not consider mitigating evidence during McGilberry's trial because, during voir dire in a subsequent unrelated trial, the juror stated that he did not give a lot of weight to mitigation. When a venireperson in criminal proceedings fails to respond to a question on voir dire and the venireperson actually has the knowledge to respond, the court should determine whether the question was relevant to the voir dire examination, whether the question was unambiguous, and whether the juror had substantial knowledge of the information sought to be elicited. McGilberry makes no showing that the juror was disinclined to consider mitigating evidence at his trial and to infer prejudice would be speculative at best. Issue 3: Shackles McGilberry argues that he was denied a fair trial because he was allegedly seen in shackles by the jurors. This issue is procedurally barred because he did not raise this issue at trial or on direct appeal. In addition, he has made no substantial showing that he was actually seen in shackles by the jury. Issue 4: Especially heinous, atrocious or cruel aggravator McGilberry argues that the murders were not heinous, atrocious or cruel because the victims were either rendered unconscious by the blows or were killed nearly instantly. This issue is procedurally barred because it was capable of determination on direct appeal. In addition, the evidence was more than sufficient to support the jury's finding of aggravating circumstances. Issue 5: Great risk of death aggravator McGilberry argues that the instruction concerning the aggravating circumstance as to whether the defendant created a great risk of death to many persons was deficient in that it failed to require the jury to find that he "knowingly" created such a risk to persons other than his intended victims. This issue is procedurally barred because it was capable of determination on direct appeal. Not only was the instruction as given substantially correct, but there was evidence at trial that McGilberry planned the murders well in advance. Also, the crime was premeditated and committed in brutal fashion so that the death sentence is warranted even absent a finding of the "great risk of death" circumstance. Issue 6: Underlying felony of robbery McGilberry argues that defense counsel failed to challenge at trial and on direct appeal the State's assertion that the murders were committed during the course of a robbery. However, on direct appeal, the Court found that the State presented more than sufficient evidence to support the jury's finding that the robbery was committed in the course of the murders. Therefore, this issue is procedurally barred. Issue 7: Closing argument McGilberry argues that his counsel failed to object to the State's closing argument that the jury should "think of a more appropriate time in your memory for retribution." In a prior case, the Court found no reversible error where the State asked the jury to give justice to the deceased victim. The State's closing remarks in this case are no more egregious. Issue 8: Ineffective assistance of counsel McGilberry argues that his attorneys’ performance was deficient at the sentencing phase of his trial, because defense counsel were inexperienced, failed to pursue the appointment of an investigator, and failed to renew a request for a mental health expert. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Although the attorneys lacked experience in capital representation, they filed approximately 40 pretrial motions. In addition, there is no showing that additional investigation into McGilberry's background would have prevented imposition of the death penalty, only that more details of McGilberry's less than idyllic childhood would have been exposed. With regard to the claim that counsel failed to pursue an ex parte motion for a mental health expert, the Court held on direct appeal that there was no error in disallowing counsel to proceed ex parte. McGilberry also argues that counsel was ineffective for not objecting when his own expert testified that McGilberry had once been accused of sexually molesting a small child. The record shows that counsel intentionally elicited this testimony as part of a showing that McGilberry's psychological instability was evident at an earlier age and falls within the realm of trial strategy. Issue 9: Cruel and unusual punishment McGilberry argues that his death sentence violates the prohibition against cruel and unusual punishment because he was only sixteen years old at the time of the offense and that the death sentence as applied to him is disproportionate. This issue is barred because it was considered on direct appeal. In addition, imposition of the death penalty on a sixteen year old presents no per se case of cruel and unusual punishment, and the U.S. Supreme Court has ruled only that no one under the age of sixteen may receive the death penalty without violating that person's Eighth Amendment rights. Issue 10: International law McGilberry argues that his execution is prohibited by the International Covenant on Civil and Political Rights, an international treaty which has been ratified by the United States Senate. This issue is barred because it was not raised at trial or on direct appeal. Also, during the ratification process, the United States Senate specifically reserved the right to impose capital punishment on persons below 18 years of age. Issue 11: Cumulative error McGilberry argues that cumulative errors committed at trial denied him a fair trial. Not only was this issue considered and rejected on direct appeal, but there can be no cumulative error since the individual assignments of error are without merit. Issue 12: Transfer to youth court McGilberry argues that counsel was ineffective for failing to develop and present evidence in support of his motion to remand the matter to youth court. Because juveniles do not fall within the jurisdiction of the youth court if they commit offenses punishable by death or life imprisonment, there could be no prejudice to McGilberry's defense for failure to more than just file a motion to transfer the case to youth court. |
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