Simmons v. State
| Docket Number: | 2002-DR-00196-SCT Linked Case(s): 2002-DR-00196-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 01-29-2004 Opinion Author: Smith, P.J. Holding: Motion for Leave to Seek Post-Conviction Relief, Denied. |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Exclusion of videotape - Ineffective assistance of counsel - Conflict of interest - Mitigation testimony - Knowingly created a great risk - Continuance - Proportionality of death sentence - Aggravating factors in indictment - Aiding and abetting instruction Judge(s) Concurring: Pittman, C.J., Waller, P.J., Cobb, Easley, Carlson, Graves and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Procedural History: PCR Nature of the Case: CRIMINAL - DEATH PENALTY - POST CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 09-02-1997 Appealed from: Jackson County Circuit Court Judge: Bill Jones Disposition: Appellant was convicted of capital murder and sentenced to death for murder. District Attorney: Dale Harkey Case Number: 961044(3) |
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| Note: | Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief filed by Gary Carl Simmons, Jr., denied. See Opinion of this Court handed down this date. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Gary Carl Simmons, Jr. |
OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: ROBERT M. RYAN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JUDY T. MARTIN MARVIN L. WHITE, JR. |
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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 - Exclusion of videotape - Ineffective assistance of counsel - Conflict of interest - Mitigation testimony - Knowingly created a great risk - Continuance - Proportionality of death sentence - Aggravating factors in indictment - Aiding and abetting instruction |
| Summary of the Facts: | Gary Simmons, Jr., was convicted of capital murder and sentenced to death. He was also convicted of rape and kidnaping. On direct appeal, his conviction and sentence were affirmed. He has filed a 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. |
| Summary of Opinion Analysis: | Issue 1: Videotape Simmons argues that the court erred in excluding a videotape he made of himself after the murder, because it showed remorse by Simmons and would have rebutted the prosecution's argument during sentencing that Simmons showed no remorse and the admission of evidence should be relaxed during the sentencing hearing. On direct appeal, the Court found that the videotape was inadmissible because it was hearsay and not relevant. Therefore, this issue is barred by res judicata. Issue 2: Ineffective assistance of counsel Simmons argues that he received ineffective assistance of counsel for a number of reasons. He first argues that his counsel failed to adequately investigate his background and family and to procure a professional expert to evaluate this information for the jury. Simmons' mental condition was not an issue in this case as he failed to raise an insanity defense. In addition, he offers nothing in support from mental health experts who can now say what an investigation of Simmons or his family background would have shown, or what such experts would now be willing to testify to. Simmons also argues that counsel was ineffective for failure to interview the State's witnesses before trial and for failure to cross-examine a witness on her previous guilty pleas in Texas state court to DUI and credit card abuse. There is nothing in the record to indicate whether defense counsel interviewed the witness. As for impeachment of the witness, it would probably not have been significant considering that the State's DNA testimony supported the testimony of the witness and Simmons did not testify, so there was no testimony to contradict the witness's version of the events. Simmons also argues that counsel was ineffective for failure to adequately prepare for the examination of the State Crime Lab's DNA expert. However, Simmons has produced nothing, even at this time, from Simmons's DNA expert at trial or anyone else which calls into question the accuracy of the results testified to by the State's DNA expert. Without such evidence prejudice cannot be shown. Simmons also argues that the failure of his counsel to make contemporaneous objections on numerous occasions amounted, in a cumulative manner, to ineffective assistance of counsel. The Supreme Court considered each of these instances on the merits and found that there was no error. Therefore, a claim for ineffective assistance of counsel cannot be supported. Issue 3: Conflict of interest Simmons argues that he was denied effective assistance of counsel because his trial counsel had before the trial represented a state witness and represented the father of this witness at the time of Simmons's trial. The issue is barred by res judicata because it was considered on direct appeal. Issue 4: Mitigation testimony Simmons argues that his ex-wife was not permitted to fully testify as to matters pertaining to mitigation factors offered by him at the sentencing phase of the proceeding. Simmons is barred by res judicata from raising this issue now, as it was decided on direct appeal. Issue 5: Knowingly created a great risk Simmons argues that the aggravating circumstance that "the defendant knowingly created a great risk of death to many people" was supported by insufficient evidence. This issue is barred by res judicata. Issue 6: Continuance Simmons argues that the court erred in failing to grant a continuance due to the State's intention to offer DNA evidence in support of its case and Simmons's resulting attempt to rebut this evidence. This issue is barred by res judicata. Issue 7: Proportionality of death sentence Simmons argues that his death sentence is disproportionate because another person, not Simmons, actually fired the shots that killed the victim. Prior cases have held that the death penalty is not disproportionate for an aider and abbetter who is not the actual killer. Here, the jury found that Simmons intended the killing of the victim to take place, in addition to finding that Simmons contemplated that lethal force would be employed. Under these circumstances, the death penalty was not disproportionate. Issue 8: Indictment Simmons argues that his indictment is unconstitutional for failure to include and specify the aggravating factors used to sentence him to death. He relies on the case of Ring v. Arizona, 536 U.S. 584 ( 2002). However, Ring only found juries must find aggravating factors. Under this state's statutory scheme and in Simmons's case, the jury found the aggravating circumstances. Absent more explicit direction, the U.S. Supreme Court has not ruled that state capital defendants have a constitutional right to have all aggravating circumstances listed in their indictments. Issue 9: Aiding and abetting instruction Simmons argues that the court erred in granting an aiding and abetting instruction, because it allows the jury an option in regard to the capital murder charge of finding Simmons guilty through a minimal act not rising to the level of the actual commission of the crime. This issue is barred from consideration by res judicata. |
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