Gillett v. State
| Docket Number: | 2008-DP-00181-SCT Linked Case(s): 2008-DP-00181-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 07-01-2010 Opinion Author: Graves, P.J. Holding: Disposition: Counts I and II: Convictions of Capital Murder and Sentences of Death by Lethal Injection, Affirmed. |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Choice of law - Warrantless arrest - Custodial statement - Warrantless search - Sufficiency of evidence - Section 97-3-19(2)(e) - Jury instructions - Expert testimony - M.R.E. 702 - Culpability phase instructions - Venue - Hearsay - Weight of evidence - Aggravating circumstances instructions - Section 99-19-101(5)(b) - Section 99-19-105(3)(d) - Nonstatutory mitigating circumstances - Prosecutorial misconduct - Photographs - Penalty phase - Arbitrary sentence - Proportionality of sentence Judge(s) Concurring: Waller, C.J., Carlson, P.J., Randolph and Pierce, JJ. Dissenting Author : Kitchens, J., Dissents with Separate Written Opinion Dissent Joined By : Dickinson, J., Joins Part ll. Concur in Part, Concur in Result 1: Chandler, J., Concurs in Part and in Result With Separate Written Opinion. Concur in Part, Dissent in Part 1: Lamar, J., Concurs in Part and Dissents in Part With Separate Written Opinion Concur in Part, Dissent in Part Joined By 1: Dickinson, J.; Kitchens, J., Joins In Part. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 11-05-2007 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: Roger Gillett was convicted and sentenced to die by lethal injection for the capital murders of Linda Heintzelman and Vernon Hulett during the commission of a robbery. District Attorney: Jon Mark Weathers Case Number: 04-715-CR |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Roger Lee Gillett |
OFFICE OF CAPITAL DEFENSE COUNSEL: JAMES LAPPAN, JONATHAN M. FARRIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: PATRICK JOSEPH McNAMARA, JR. | ||
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 direct appeal - Choice of law - Warrantless arrest - Custodial statement - Warrantless search - Sufficiency of evidence - Section 97-3-19(2)(e) - Jury instructions - Expert testimony - M.R.E. 702 - Culpability phase instructions - Venue - Hearsay - Weight of evidence - Aggravating circumstances instructions - Section 99-19-101(5)(b) - Section 99-19-105(3)(d) - Nonstatutory mitigating circumstances - Prosecutorial misconduct - Photographs - Penalty phase - Arbitrary sentence - Proportionality of sentence |
| Summary of the Facts: | Roger Gillett was convicted and sentenced to die by lethal injection for capital murder during the commission of a robbery. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Choice of law Gillett argues that the Court must determine whether the law of Kansas or the law of Mississippi applies to the adjudication of his first four claims (which regard his suppression motions) or must remand this matter to the trial court for that determination. Neither party argues that applying the law of Mississippi rather than the law of Kansas, or vice versa, would result in different conclusions regarding Gillett’s motions to suppress. Therefore, this choice-of-law question need not be addressed. Issue 2: Warrantless arrest Gillett argues that the trial court erred in denying his motion to suppress his warrantless arrest and the seizures incident thereto. Probable cause arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it. The record shows that there was probable cause to arrest Gillett, and thus, the items seized from Gillett’s person incident to his arrest and the custodial statement he provided incident to his arrest were lawful and should not have been suppressed. Issue 3: Custodial statement Gillett argues that the trial court erred in denying his motion to suppress his custodial statement, because he never waived his Fifth Amendment right to silence or his Sixth Amendment right to counsel. An officer must secure a Miranda waiver before beginning a custodial interrogation if the officer intends to use any of the information acquired from the interview as evidence. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Here, Gillett never indicated in any manner at any time prior to or during questioning that he desired to remain silent, as he was required to do under Miranda to invoke his right to silence. The interview proceeded for a significant amount of time until, after learning that the police were getting ready to serve a search warrant on the Gillett farm and that they suspected there might be a stolen vehicle there, Gillett invoked his right to an attorney. The officer immediately ceased questioning him, told him he would return him to jail, and told him what the charges against him were and that there may be additional charges. Shortly thereafter, Gillett explicitly withdrew his request for an attorney. The interview then proceeded for between ten and fifteen minutes until Gillett again invoked his right to counsel, and the officer promptly ended the interview. If the accused invoked his right to counsel, courts may admit his responses to further questioning only on the finding that he initiated further discussions with the police, and knowingly and intelligently waived the right he had invoked. Gillett did just that. Issue 4: Warrantless search Gillett argues that the trial court erred in denying his motion to suppress items seized from the warranted search of the residence of Gillett’s aunt with whom he was staying in Kansas. Gillett argues that the affidavit in support of the warrant was wholly conclusory, and as a result, the seizures made on the warrant were absent probable cause. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Here, there was a substantial basis for the magistrate judge and the trial court to conclude that probable cause existed. Gillett’s aunt informed the officer that just the previous day, she had witnessed Gillett engaged in the manufacture and possession of illegal narcotics and in the possession of a stolen vehicle. The officer’s affidavit also includes information corroborating the informant’s statements. Gillett also argues that the trial court erred in denying his motion to suppress seizures from the warranted search of the Gillett farm. However, the search warrant for the Gillett farm was based on probable cause, was sufficiently particular regarding the place to be searched, and was properly executed. Issue 5: Sufficiency of evidence Gillett argues that Count II of the indictment should not have proceeded to the jury because it is undisputed that the white pickup truck, which the State theorizes Gillett stole, was owned solely by the victim named in Count I. He argues that the victim named in Count II must have had an interest in the white pickup truck that allegedly was stolen. Section 97-3-19(2)(e) does not state that the person killed must have had an interest in the property taken. Issue 6: Jury instructions Gillett argues that the trial court erred in allowing two jury instructions, because they do not require the jury to conclude that the intent to rob the victims was formed sometime before the victims died. Mississippi follows the “one-continuous-transaction” rationale in capital cases. In other words, where the two crimes are connected in a chain of events and occur as part of the res gestae, the crime of capital murder is sustained. Moreover, the intent to rob, which is required to prove the underlying felony of robbery, can be shown from the facts surrounding the crime. Thus, it was not error for the trial court to leave to the jury the question of whether, based on the facts surrounding the crime, Gillett had the intent to rob one of the victims. Issue 7: Expert testimony Gillett argues that the trial court erred in permitting the expert testimony of the DNA Section Chief at the Mississippi Crime Laboratory, regarding DNA results, because the State failed to demonstrate the scientific reliability of the methodology used by the State’s expert to achieve the results reported in the Mississippi Crime Laboratory report. Pursuant to M.R.E. 702, the expert’s testimony must be based on sufficient facts or data and be the product of reliable principles and methods. Here, the trial court did not abuse its discretion in allowing the expert to testify at trial regarding the DNA evidence. Cross-examination and presentation of contrary evidence were the appropriate means of attacking any aspects of the expert’s testimony; however, the defense chose neither to cross-examine him nor to object to his testimony at trial. Issue 8: Culpability phase instructions Gillett argues that the trial court erroneously excluded several of his culpability-phase jury instructions. While a defendant is entitled to have jury instructions which present his theory of the case, the court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. While there certainly were items that the State chose not to collect and/or not to test, Gillett has not shown that law enforcement was negligent in its investigation, that it distorted any evidence, or that it in any way acted in bad faith. Thus, there was no evidence to support Gillett’s instruction on bad faith and negligence. There is also no evidence that the State inadequately investigated the matter, so the court properly Gillett’s instruction on that issue. As to his remaining instruction, there is insufficient evidence to support an instruction that instructs the jury to presume that the information contained in the lost evidence would have been favorable to the defendant. Gillett next argues that the trial court erred in excluding Gillett’s proposed lesser-included or manslaughter instructions. A manslaughter or lesser-included-offense instruction should be given only if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense. There is no evidence in the record to support the theory that the victims were killed without deliberate design to effect their deaths. He also argues that the trial court erred in excluding his jury instruction on reasonable doubt. However, the substance of Gillett’s instruction was adequately covered in another instruction. Gillett next argues that the trial court erred in excluding a jury instruction on the impeachment of a witness. There is no evidence in the record to support an impeachment instruction; the instruction would not apply to any of the witnesses who testified. Gillett argues that the trial court erred in refusing an instruction regarding a witness persistently volunteering statements prejudicial to a defendant. The instruction is not appropriate because there is no evidence in the record that the witness persistently volunteered statements prejudicial to the defendant. Gillett argues that the trial court erred in denying an instruction regarding guilt by association. This instruction was fairly covered elsewhere in the jury instructions. Issue 9: Venue Gillett argues that the State failed to establish venue. Sufficient evidence was presented to lead the jury to conclude beyond a reasonable doubt that the crimes took place, at least in part, in Forrest County, where the case was tried. Gillett was staying at the home of the victims which was located in Hattiesburg, Forrest County. Gillett was next seen in Kansas, where he confessed to friends that he had taken the white pickup truck he was driving from its owners, that he had killed the owners, and that their bodies were in the back of the truck. The victims’ bodies were found in a freezer at the Gillett farm. The freezer was the property of the victims and was last seen (before it was discovered at the farm) at the victims’ residence. The shoe print of a shoe with blood on it matched a shoe print found at the victims’ residence. The victims’ residence contained a rolled-up carpet with blood-like stains on it and showed numerous signs of bloodlike stains throughout the house. Therefore, the State satisfactorily established venue in Forrest County. Issue 10: Hearsay Gillett argues that the trial court erred in overruling his hearsay objection to testimony given by a detective sergeant with the Hattiesburg Police Department. A statement is not hearsay if it is offered merely to show its effect on someone. Here, the testimony was not hearsay; it merely allowed the officer to explain why he went to the victims’ residence. Issue 11: Weight of evidence Gillett argues that his conviction and sentence are contrary to established law and decidedly against the overwhelming weight of the evidence. Gillett’s convictions were neither based on insufficient evidence nor against the overwhelming weight of the evidence. In addition to the physical evidence the State introduced at trial, the State presented a witness who testified that Gillett had confessed to him that he, Gillett, had taken the white pickup truck he was driving from its owners and that he had murdered them. Another witness testified that Gillett had confessed to her that he needed to get rid of the white pickup truck he was driving because two bodies were in the back of the truck. Issue 12: Aggravating circumstances instructions Gillett argues that the jury should not have been instructed to consider whether the capital offense was committed for the purpose of avoiding or preventing a lawful arrest. If there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers or to ‘cover their tracks’ so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance. The record shows that this instruction was proper. Gillett also argues that the jury should not have been instructed to consider whether the defendant was previously convicted of a felony involving the use or threat of violence to the person. The facts surrounding and supporting the Kansas conviction for attempted aggravated escape are unknown; the State merely offered a judgment of conviction to secure inclusion of the section 99-19-101(5)(b) aggravator. The State has failed to provide sufficient evidence to support the inclusion of a “previous violent felony” jury instruction. However, section 99-19-105(3)(d) provides that if one or more of the aggravating circumstances are found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error, or both. Information about Gillett, presented as mitigating evidence, does not outweigh the remaining three aggravating circumstances – “avoiding arrest,” “especially heinous capital offense,” and “felony murder” – all of which are supported by the evidence. Therefore, the inclusion of the invalid “previous violent felony” aggravator was harmless error. Gillett next argues that the trial court erred in giving an instruction regarding the “especially heinous, atrocious or cruel” aggravator, because it is unconstitutionally vague. However, identical instructions have been found to be acceptable in numerous cases. Gillett argues that the trial court erred in allowing the jury to consider the “felony murder” aggravating circumstance. He argues that he has a constitutional right to have had the alleged aggravating circumstances included in his indictment. However, this argument has been rejected in previous cases. Issue 13: Nonstatutory mitigating circumstances Gillett argues that the trial court refused to instruct the jury regarding his theory of defense at the penalty phase by refusing to give his “theory of defense instructions,” which separately listed nonstatutory mitigating circumstances. Specific instructions on non-statutory circumstances need not be given, so long as a ‘catch-all’ instruction is included that instructs the jury that they may consider any factors that they may deem mitigating in their deliberations. Here, such an instruction was given. Gillett also argues that the trial court abused its discretion in its acceptance or denial of various other penalty-phase jury instructions. However, the court did not err in denying these instructions. Issue 14: Prosecutorial misconduct Prior to trial, Gillett filed a “Notice of Forensic Argument Offered by the State in the Trial of the Co-Defendant that Will Be Objectionable if Offered by the State in this Matter.” Gillett now argues that, notwithstanding more than two months notice of specific acts of forensic misconduct, the State repeated seven of the specific violations announced in his notice. Failure to object contemporaneously at trial waives any claim of error on appeal. Gillett waived the right to raise these instances of alleged prosecutorial misconduct on appeal since he failed to object at trial. Issue 15: Photographs Gillett argues that the trial court erred in allowing autopsy photographs into evidence during the guilt and penalty phases. A photograph has a meaningful evidentiary purpose when it aids in describing the circumstances of the killing; describes the location of the body or cause of death; or supplements or clarifies witness testimony. At trial, the State qualified all of the autopsy photographs it intended to offer into evidence as being of assistance to the pathologist in explaining the types of injuries the victims suffered. The thirteen autopsy photographs to which Gillett objects on appeal are those that were chosen by the pathologist for the purpose of helping him describe to the jury the injuries the victims suffered. The remainder depicted different parts of the victims’ bodies to illustrate the various injuries they suffered. The photographs were not repetitive; each depicted different injuries. Considering M.R.E. 403 and the case record, the trial court did not abuse its discretion in allowing the introduction of the autopsy photos at the guilt and penalty phases. Issue 16: Penalty phase Gillett argues that his death-penalty sentence is the product of an invalid penalty phase. Arguments like Gillett’s cumulative-error argument, contending that the State failed to carry its burden of proof throughout the penalty phase and that the defendant was deprived of his due-process rights, have been addressed before. As the trial court did not commit any reversible errors in the penalty phase, Gillett’s cumulative-error argument must fail. Issue 17: Arbitrary sentence Gillett’s sentence is not based on any impermissible, arbitrary factors. Issue 18: Proportionality of sentence Gillett argues that there is a great deal about the crime at bar that makes the execution of the death sentence excessive and disproportionate. The death penalty has been upheld in cases involving capital murders committed during the commission of a robbery. Moreover, the Court recently upheld the death penalty of Gillett’s co-defendant for committing the same crimes for which Gillett was convicted. |
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