Roger Lee Gillett v. State of Mississippi ( 2007 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-DP-00181-SCT
ROGER LEE GILLETT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 11/05/2007
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL DEFENSE COUNSEL
BY: JAMES LAPPAN
JONATHAN M. FARRIS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: PATRICK JOSEPH McNAMARA, JR.
DISTRICT ATTORNEY: JON MARK WEATHERS
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT
APPEAL
DISPOSITION: AFFIRMED - 07/01/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRAVES, PRESIDING JUSTICE, FOR THE COURT:
¶1. 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.
Aggrieved by these convictions and sentences, Gillett now brings his direct appeal to this
Court. Finding no reversible error, we affirm his convictions and sentences.
FACTS
¶2. The investigation into the deaths of Linda Heintzelman and Vernon Hulett began in
Russell, Kansas. On March 29, 2004, Debbie Milam, Roger Gillett’s aunt, informed the
Russell County, Kansas, Sheriff’s Department that, on the previous day, Gillett had
manufactured illegal narcotics at his grandfather’s farm in rural Russell County (hereinafter
“the Gillett farm”) and also had stored at the farm a pickup truck he had stolen.1 The
Sheriff’s Department contacted Agent Matthew Lyon, a narcotics investigator with the
Kansas Bureau of Investigation (KBI), for assistance. Based on information received from
Milam, as well as other corroborating information, Lyon sought out and obtained two search
warrants: one to search the residence where Gillett was staying, located at 606 North Ash
Street, Russell, Kansas, and one to search the Gillett farm, located at 5482 190th Street in
rural Russell County, Kansas.
¶3. Upon executing the search warrant on 606 North Ash Street and locating illegal
narcotics at the residence – as well as having reason to believe that Gillett had been involved
in an assault, the manufacture of illegal narcotics, and a robbery – officers from the Sheriff’s
Department located and arrested Gillett, along with his codefendant, Lisa Chamberlin (see
Chamberlin v. State, 989 So. 2d 320 (Miss. 2008)), at a local park. The officers transported
Gillett to the Russell County Jail, where he was interviewed by Agent Lyon. Before
commencing the interview, Lyon showed Gillett a copy of the search warrant for 606 North
Ash Street and read Gillett his Miranda 2 rights. During the interview, Gillett told Lyon that
he recently had hitchhiked back to Kansas from Hattiesburg, Mississippi, where he had been
1
Milam felt compelled to inform the police about the crimes Gillett had committed because,
according to her, while at the Gillett farm, Gillett had threatened her with a gun, telling her he would
shoot her and her family if she told anyone what she had seen at the farm.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
staying with his relative, Vernon Hulett, for one or two months. He also told Lyon that he
had not been up to the Gillett farm in months. Then, upon Lyon telling Gillett that a white
pickup truck with Mississippi tags had been reported stolen, Gillett stated that he needed to
speak with an attorney. However, as Lyon was preparing to take Gillett back to jail because
Gillett had invoked his right to an attorney, Lyon told Gillett what he was being charged with
and “that there might be some more charges that come out of it.” Curious, Gillett asked,
“Like?” and then withdrew his request for an attorney in order to learn more about the
information Lyon possessed. The interview then continued for a significant period of time
until Gillett again invoked his right to an attorney.
¶4. That same day, March 29, 2004, the search warrant on the Gillett farm also was
executed. In a metal shed at the farm, officers located a white pickup truck that was found
to be registered to Linda Heintzelman (Vernon Hulett’s live-in companion), as well as items
consistent with the manufacture of methamphetamine. In a wooden shed at the farm, officers
located a freezer that was bound shut with duct and electrical tape. When officers opened
the freezer, they saw a dead body or bodies inside. The officers then temporarily stopped the
search until they could obtain a homicide search warrant. Once they had secured a homicide
search warrant on the farm, they removed from the freezer what turned out to be two bodies,
a male and a female, and prepared them for transportation to the pathologist’s facility.
¶5. Gillett was not interviewed further regarding the bodies found in the freezer; however,
Chamberlin gave officers a statement and led them to a location in a local landfill where,
according to her, she and Gillett had disposed of trash bags containing property associated
3
with the murder victims.3 The seven trash bags that the officers collected from the
landfill contained, among other things, Vernon Hulett’s and Linda Heintzelman’s wallets
containing their drivers licenses, Hulett’s work shirt and work pants, both with his name
printed on them, a crocheted pillow appearing to have blood on it (later found to match other
pillows on Hulett’s and Heintzelman’s bed in their Hattiesburg home), a Hattiesburg phone
book, and a pair of New Balance tennis shoes with blood-like stains on them.
¶6. Based on the evidence recovered, the Kansas officers contacted the Hattiesburg police
and asked them to check the residence shared by Vernon Hulett and Linda Heintzelman,
located at 908 South Gulfport Street, Hattiesburg, Mississippi. Hattiesburg officers
subsequently searched the residence and found, among other things, carpeting removed from
the floor and rolled up, multiple blood-like stains throughout the house, a pried-open safe,
and a shoe print in a reddish stain. The Mississippi Crime Laboratory determined that one
of the New Balance shoes recovered from the garbage bags at the Kansas landfill was the
source of the shoe print found at the 908 South Gulfport Street residence. The Mississippi
Crime Laboratory also determined that blood on the shoe was Linda Heintzelman’s blood.
¶7. At trial, it was revealed that Gillett and Chamberlin had driven a blue Mitsubishi
Eclipse from Kansas to Mississippi around the end of February 2004, and had been staying
at the Hattiesburg home of Vernon Hulett, Gillett’s cousin, and Linda Heintzelman, Hulett’s
3
Testimony of an employee at the Russell landfill confirmed that Gillett, accompanied by
a female, had made two deliveries to the landfill on March 26, 2006. According to the employee,
Gillett had requested that she put his aunt’s name on the landfill receipts.
4
companion. One day, while Gillett, Chamberlin, Hulett, and Heintzelman were on their way
to the Mississippi Gulf Coast, with the couples driving their respective vehicles,
Chamberlin’s and Gillett’s Mitsubishi was damaged in a wreck, allegedly caused by
Heintzelman cutting them off and forcing them into a ditch. Gillett was very angry about the
car wreck, even telling Hulett’s mother after the wreck that he, Gillett, would like to take
Heintzelman and push her through a plate-glass window.
¶8. The last time anyone saw Hulett and Heintzelman alive was on March 19, 2004.
When Hulett’s nephew came by Hulett’s house on March 20, he found only Gillett and
Chamberlin there. Gillett told the nephew that Hulett and Heintzelman had gone to the Coast
with a friend. Similarly, when the nephew stopped by Hulett’s house on March 21, he found
only Gillett and Chamberlin there. While visiting with Gillett and Chamberlin that day
(March 21), the nephew noticed that the carpeting had been ripped up, and when he inquired
about it, Gillett told him that Hulett had asked him to rip it up because Hulett had come into
some money and was bringing new carpeting back with him from the Coast. The nephew
also saw Gillett and Chamberlin in Hattiesburg on March 23.
¶9. Shortly thereafter, Gillett and Chamberlin arrived in Kansas, driving Heintzelman’s
white pickup truck. In the bed of the truck, there was a rectangular object that looked like
boxes, covered by a tarp. In Kansas, Gillett informed two of his friends that he had taken the
truck from its owners, that he had killed the owners, and that the owners were in the back of
5
the truck.4 One of the friends to whom Gillett confessed soon thereafter went to the Gillett
farm and observed in one of the farm’s sheds a freezer that, according to him, looked like
what might have been under the tarp in the back of the white pickup truck that Gillett had
been driving. At the trial, Hulett’s mother identified the freezer found at the farm to be the
freezer that belonged to Hulett and Heintzelman, and she stated that she had last seen the
freezer at Hulett’s and Heintzelman’s residence in Hattiesburg. Further, a KBI forensic
scientist found Gillett’s fingerprints on the freezer, as well as on both the “sticky” and
“shiny” sides of the tape that bound the freezer shut.
¶10. The pathologist who conducted the autopsies of Hulett and Heintzelman found
Heintzelman to have suffered at least sixty-nine separate injuries prior to death, including
injuries caused by blunt-force trauma, cutting, stabbing, and suffocation. The pathologist
summarized:
Ms. Linda Heintzelman died from the multiple injuries that were inflicted upon
her. Those included sharp-force injuries predominantly to the torso. Those
included blunt-force injuries predominantly to the head. There were also
sharp-force injuries to the neck. And there was also a component of
asphyxiation or lack of oxygen getting into the airway.
The pathologist found Hulett to have suffered numerous injuries as well, predominantly to
his face and head. The pathologist concluded that Hulett’s death was the result of “blows
that went to the left side of the head[,] fractured the skull and then damaged the brain.”
4
One of the two friends testified that the portion of the conversation she had heard between
Gillett and the other friend was that Gillett needed help getting rid of the white pickup truck, because
two dead bodies were in the back.
6
Hulett was found in the freezer, and presented to the pathologist, with his arms severed at the
shoulder joints and his head severed at the neck.
PROCEDURAL HISTORY
¶11. Gillett was indicted on two counts of capital murder in the deaths of Vernon Hulett
and Linda Heintzelman. On October 15, 2004, in the Circuit Court of Forrest County,
Mississippi, Gillett was appointed counsel and arraigned. Gillett filed four pretrial motions
to suppress: a motion to suppress his arrest; a motion to suppress his statement; a motion to
suppress the search of the residence where he was staying in Kansas, located at 606 North
Ash Street; and a motion to suppress the search of the Gillett farm. On January 22, 2007,
these motions were heard, with several Kansas law enforcement officers testifying regarding
Gillett’s arrest, his statement, and the searches of 606 North Ash Street and the Gillett farm.
The trial court denied all four suppression motions. On subsequent dates, the trial court
heard and ruled on (or withheld ruling on) numerous other defense motions. These included
a motion, relevant to an issue discussed below, arguing that the State should be prohibited
from introducing photographs of the victims’ dead bodies. The trial court denied that
motion. On September 20, 2007, the trial court held a Daubert5 hearing regarding the
reliability of the testimony of one of the State’s witnesses, William Jones, a DNA scientist
from the Mississippi Crime Laboratory. The trial court found that Jones met the Daubert
criteria and denied Gillett’s motion to exclude Jones’ testimony.
5
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469(1993).
7
¶12. After a four-day trial, spanning from October 30, 2007, to November 2, 2007, during
which Gillett did not put on any evidence, the jury found Gillett guilty of two counts of
capital murder. On November 3, 2007, the penalty phase was conducted. Gillett called four
witnesses (two religious leaders who had provided Gillett with religious guidance while he
was incarcerated, one of Gillett’s fellow inmates, and one of Gillett’s aunts) and also played
videotape testimony of four additional witnesses (a former employer of Gillett, a former
friend of Gillett, the woman who had been Gillett’s grandfather’s live-in companion before
he died, and Gillett’s mother). At the conclusion of the penalty phase, the jury unanimously
found beyond a reasonable doubt that four aggravating circumstances existed with respect
to each victim,6 and that Gillett should suffer death in both counts of capital murder. On
January 25, 2008, the trial court denied Gillett’s motion for a new trial, or in the alternative,
a motion for a new sentencing hearing. Gillett then timely appealed to this Court.
DISCUSSION
¶13. This Court reviews convictions upon indictments for capital murder and sentences of
death with heightened scrutiny. Loden v. State, 971 So. 2d 548, 562 (Miss. 2007). Under
this standard of review, “all doubts are to be resolved in favor of the accused because what
6
The jury’s verdict listed the four aggravating circumstances as follows: 1) “the capital
offense was committed while the defendant was engaged or was an accomplice in the commission
of or an attempt or flight after committing or attempt to commit a robbery;” 2) “the capital offense
was heinous, atrocious, or cruel;” 3) “the capital offense was committed for the purpose of avoiding
or preventing a lawful arrest;” and 4) “the defendant was previously convicted of a felony involving
the use of or threat of violence to the person.”
8
may be harmless error in a case with less at stake becomes reversible error when the penalty
is death.” Id. (internal citations omitted).
PRETRIAL
Prefatory choice-of-law question.
¶14. Gillett argues that this 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. Gillett submits
that there is no Mississippi case precedent discussing this question. Gillett thus provides
citations to cases in other jurisdictions, some of which hold that the law of the place where
the transaction (e.g., search, seizure, arrest) occurred should apply, and others holding that
the law of the jurisdiction where remedy is sought should apply. Gillett submits that his
motions to suppress are meritorious under the law of the evidence-gathering state (Kansas),
under the law of the forum state (Mississippi), and under federal law; however, Gillett
contends that the most rational path for the adjudication of foreign searches and seizures is
to apply the law of the place where the transaction occurred (Kansas).7
7
Gillett’s appeal brief states that neither the State nor the trial court addressed the issue of
whether the law of Mississippi or the law of Kansas should apply. Gillett explains:
As the State of Mississippi offered no response to Mr. Gillett’s memoranda
of law in support of suppression [which contained argument mandating suppression
under the law of Kansas, the law of Mississippi, and federal law], the State
necessarily took no position on the choice-of-law question.
As the trial court issued no findings of fact nor conclusions of law concerning
any aspect of suppression [i.e., concerning Gillett’s four suppression motions], the
trial court also remained silent on the choice-of-law question.
9
¶15. 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.
I. Whether the trial court erred in denying Gillett’s motion to suppress the warrantless
arrest of Gillett and the seizures incident thereto.
¶16. Gillett’s first assignment of error is that the trial court erred in denying his motion to
suppress his warrantless arrest and the seizures incident thereto. On March 29, 2004,
Sergeant Kelly Schneider of the Russell County Sheriff’s Department learned from
interviewing Debbie Milam, Gillett’s aunt, and Kathy Thacker, Milam’s housemate, that
Gillett had threatened Milam with a gun and was in possession of a stolen vehicle and
materials used to manufacture methamphetamine. Schneider contacted KBI agent Matthew
Lyon regarding what Thacker and Milam had told him. Based on the information received
from Milam, as well as information from other sources, Lyon then applied for and obtained
a search warrant for 606 North Ash Street, Russell, Kansas – the residence of Patty Hulett,
Gillett’s aunt, where Gillett was staying while in Russell. The warrant listed five felony
crimes associated with methamphetamine, which Lyon had probable cause to believe had
been or were being committed.
¶17. Schneider participated in the execution of the search warrant on 606 North Ash Street,
assigned to duty on the perimeter. When officers entered the residence, they located
narcotics, but Gillett was not present at the residence. Schneider (who was on duty outside
The trial court transcript does not contain discussion of this choice-of-law question.
10
the residence) was informed that narcotics had been located and that he, along with other
officers, should attempt to locate and arrest Gillett. The County Attorney instructed the
officers to arrest Gillett without a warrant because of the quantity of narcotics found at 606
North Ash Street and because of the threat made to Milam. Officers located Gillett at a
public park in Russell and arrested him at the park, based on probable cause. Schneider
informed Gillett that he was being arrested for “narcotics violations.” After Gillett’s arrest,
Gillett was transported to the Russell County Jail where he was shown a copy of the search
warrant for 606 North Ash Street, which listed the crimes he was suspected of having
committed: manufacture of methamphetamine, conspiracy to manufacture methamphetamine,
possession of methamphetamine, possession of drug manufacturing paraphernalia, and
possession of pseudoephedrine.
¶18. The following day, March 30, 2004, a warrant for Gillett’s arrest was obtained, listing
the above charges. Kelly Ralston, Special Agent in Charge with the KBI, testified that it is
not unusual in Kansas for officers to make an arrest on probable cause and later complete the
formal paperwork; in fact, a Kansas statute specifically allows for arrests based on probable
cause. See Kan. Stat. Ann. § 22-2401 (Rev. 2007).
¶19. Kansas Statutes Section 22-2401 provides:
A law enforcement officer may arrest a person under any of the
following circumstances:
(a) The officer has a warrant commanding that the person be arrested.
(b) The officer has probable cause to believe that a warrant for the person’s
arrest has been issued in this state or in another state for a felony committed
therein.
11
(c) The officer has probable cause to believe that the person is committing or
has committed:
(1) A felony; or
(2) A misdemeanor, and the law enforcement officer has probable cause
to believe that:
(A) The person will not be apprehended or evidence of
the crime will be irretrievably lost unless the person is
immediately arrested;
(B) the person may cause injury to self or others or damage to
property unless immediately arrested; or
(C) the person has intentionally inflicted bodily harm to another
person.
(d) Any crime, except a traffic infraction or cigarette or tobacco infraction, has
been or is being committed in the officer’s view.
Kan. Stat. Ann. § 22-2401 (Rev. 2007).
¶20. Gillett argues that it was unconstitutional and a violation of Kansas Statutes Section
22-2401 for the Kansas officers to arrest him without a warrant, because the arresting officer
told him he was being arrested for a “narcotics violation,” without elaborating as to whether
the violation was a misdemeanor or a felony, and because he did not possess narcotics in the
arresting officer’s presence. Gillett then argues that, because the arrest was unlawful, the
items seized from his person incident to his arrest, as well as the custodial statement he
provided incident to his arrest, should have been suppressed.
¶21. When reviewing a trial court’s denial of a motion to suppress, this Court adopts a
mixed standard of review. Dies v. State, 926 So. 2d 910, 917 (Miss. 2006). Determinations
of reasonable suspicion and probable cause are reviewed de novo. Id. (citing Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); Floyd v. City
of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999)). However, this Court should “take
12
care both to review findings of historical fact only for clear error and to give due weight to
inferences drawn from those facts by resident judges and local law enforcement officers.”
Floyd, 749 So. 2d at 113 (citing Ornelas, 517 U.S. at 699). “Thus, this Court is restricted
to a de novo review of the trial judge’s findings using the applicable ‘substantial
evidence’/‘clearly erroneous’ standard.” Floyd, 749 So. 2d at 113. Finally, this Court
reviews the admission or exclusion of evidence for abuse of discretion. Floyd, 749 So. 2d
at 113.
¶22. The United States Supreme Court has explained:
Both the standard for arrest and detention have been derived from the Fourth
Amendment and its common-law antecedents. The standard for arrest is
probable cause, defined in terms of facts and circumstances ‘sufficient to
warrant a prudent man in believing that the (suspect) had committed or was
committing an offense.’ This standard, like those for searches and seizures,
represents a necessary accommodation between the individual’s right to liberty
and the State’s duty to control crime.
Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) (internal
citations omitted). This Court has held that:
the test for probable cause in Mississippi is totality of the circumstances. . . .
This Court has further defined probable cause as: “a practical, nontechnical
concept, based upon the conventional considerations of every day life on
which reasonable and prudent men, not legal technicians, act. It 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.”
Moore v. State, 986 So. 2d 928, 934 (Miss. 2008) (internal citations omitted).
13
¶23. We find that: 1) the record reveals that there was probable cause to arrest Gillett, and
2) 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.
Therefore, the trial court’s denial of Gillett’s motion to suppress his warrantless arrest and
the seizures incident thereto was not clearly erroneous nor contrary to the substantial
evidence before it.8
¶24. Gillett additionally argues that, under Ornelas v. United States, 517 U.S. 690, 116 S.
Ct. 1657, 134 L. Ed. 2d 911 (1996), and Federal Rule of Criminal Procedure 12(d), the trial
court’s ruling stating that “[t]he suppression motions, namely Motion 005 [regarding the
legality of the warrantless arrest], 006, 007, and 008 are denied,” without further elaboration,
is an insufficient ruling for review by this Court. Gillett argues that the trial court was
required to make findings of historical facts, which are the salient events leading up to the
stop or the search (or in this case, the arrest). First, Ornelas does not state that a trial judge
is required to make on-the-record findings of historical fact before ruling on a motion to
suppress evidence. Second, the Federal Rules of Criminal Procedure are not applicable in
this case; Gillett even admits that “Mississippi has no analogue for Federal Rule of Criminal
Procedure 12(d) [and] . . . Mississippi trial courts are not required to issue any findings of
fact to support a suppression determination.”
8
Before ruling on Gillett’s suppression motion, the trial court heard testimony from the
officers involved in the search of 606 North Ash Street and Gillett’s arrest, as well as those involved
in securing the search warrants, and later, the arrest warrant. The trial court also possessed Gillett’s
memorandum on this issue, which includes Kansas Statutes Section 22-2401.
14
II. Whether the trial court erred in denying Gillett’s motion to suppress his custodial
statement.
¶25. Gillett’s next assignment of error is that the trial court erred in denying his motion to
suppress his custodial statement. On March 29, 2004, shortly after Gillett’s arrest, Agent
Lyon was tasked with interviewing Gillett regarding the narcotics violation and the suspected
stolen vehicle. Lyon set up a video camera to tape the interview and, before beginning the
interview, informed Gillett that the interview was being taped. Soon after Gillett entered the
interview room, Lyon showed Gillett a copy of the search warrant issued for 606 North Ash
Street. Gillett looked it over, reading through the pages. Lyon then proceeded to read Gillett
his Miranda rights as they were listed on the “Miranda Card.” Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). As Lyon read the rights aloud, he asked
if Gillett had any questions about the rights, and he had Gillett initial next to each enumerated
right. Lyon then asked Gillett the following question as it is written on the Miranda Card:
“Having these rights in mind, are you willing to answer questions now?” In response, Gillett
placed an “X” on the Miranda Card, not in the box indicating “YES” (the box being to the
left of the word “YES”), but rather directly to the right of the word “YES,” in the white space
between the word “YES” and the box indicating “NO.” 9 To clarify whether Gillett wanted
to talk, Lyon asked, “Ok, so you want to go ahead and talk for a little bit, then, right?”
9
After Gillett drew the “X” where he did, Lyon said, “Go ahead and put it in the square
there,” and Gillett responded by saying something that sounded like “It’s a ‘Yes.’” It is difficult to
decipher from review of the videotape exactly what Gillett said at that moment in the interview.
15
Gillett responded, “Maybe.” Lyon then asked, “Ok, will you sign at least then that you’ll talk
to me for a little bit?” Gillett then signed and dated the card and asked, “What’s this about?”
¶26. Lyon and Gillett then proceeded to have an exchange regarding: from where, with
whom, and by what form of transportation Gillett had traveled to Kansas the previous week;
with whom Gillett had stayed while in Hattiesburg, and for how long he had stayed there;
which of the belongings seized from 606 North Ash Street were Gillett’s; what his backpack
seized from 606 North Ash Street contained; and when Gillett had last been to the Gillett
farm. Lyon also told Gillett that the police were getting ready to serve a search warrant at
the Gillett farm because they had been keeping the farm under surveillance and suspected
that there might be a stolen vehicle from Mississippi at the farm.10
¶27. Right after Lyon told Gillett that a white pickup truck with Mississippi tags had been
reported stolen, Gillett said, “I need to speak with an attorney.” The following exchange, as
transcribed in one of Gillett’s exhibits, then occurred:
Lyon: Ok. Well, that’s fine. I’ll go ahead and take you back to the jail. What
this is all about is you’re under arrest right now for the manufacture of
methamphetamine, conspiracy to manufacture methamphetamine, possession
of pseudoephedrine with intent to manufacture, possession of drug
manufacturing paraphernalia. That’s what you’re being charged with now on
account of last night, and um, there might be some more charges that come out
of it. Um –
Gillett: Like?
10
The Kansas authorities had not in fact been keeping the Gillett farm under surveillance.
Lyon told Gillett that they had only so that Lyon would not have to reveal to Gillett that Milam had
served as an informant. Lyon wanted to protect Milam.
16
Lyon: Well we’re going to have to see. You asked for an attorney. So I can’t
really discuss it anymore, unless you want to change your mind. I’d like to
discuss it with you and get it cleared up but I don’t know if I, you know – If
I got the wrong guy, I got the wrong guy.
Gillett: But you’re already charging me with these things –
Lyon: Well, I haven’t gotten the affidavit for arrest warrant yet.11 That’s the
way it looks for preliminarily now, but I wanted to get your side of it, but since
you asked for an attorney. You want to talk some more?
Gillett: What other charges are you trying to throw at me?
Lyon: Well I’m not trying to throw anything at you, but I want to completely
come clean with you, but I can’t. You asked for an attorney. I can’t say
anything right now.
Gillett: All right. Hold up on that for a minute.
Lyon: Ok, you don’t want an attorney?
Gillett: Not this instant.
Lyon: Ok, so you’re withdrawing –
Gillett: (indecipherable)
Lyon: Well I got to ask because . . .
Gillett: Yes, I’m withdrawing my request for an attorney.
Lyon: Outstanding.
11
Review of the videotape of the interview reveals that, at this point, Lyon said “Well, I
haven’t done an affidavit for arrest warrant yet. . . .” (Emphasis added.)
17
The interview then continued until Gillett again asked for an attorney, and Lyon then
promptly ended the interview. Lyon’s testimony at the pretrial motion hearing was
consistent with this transcription of the custodial interview.
¶28. Gillett argues that his entire custodial statement is inadmissible because he never
waived his Fifth Amendment right to silence nor his Sixth Amendment right to counsel, and
therefore, the trial court erred in denying his motion to suppress the statement. Gillett further
argues that, even if this Court were to find that Gillett had waived his right to silence and
counsel at the start of the interview, the trial court erred in denying his motion to suppress
his custodial statement after the point in the interview when he first explicitly invoked his
right to counsel.
¶29. This Court has stated that a heavy burden must be met for a trial court’s decision
regarding a motion to suppress to be overturned. Taylor v. State, 789 So. 2d 787 (Miss.
2001). This Court has elaborated:
A trial court is also given deference in the admissibility of an incriminating
statement by a criminal defendant. In Hunt v. State, 687 So. 2d 1154, 1160
(Miss. 1996), this Court held that the defendant seeking to reverse an
unfavorable ruling on a motion to suppress bears a heavy burden. The
determination of whether a statement should be suppressed is made by the trial
judge as the finder of fact. Id. “Determining whether a confession is
admissible is a finding of fact which is not disturbed unless the trial judge
applied an incorrect legal standard, committed manifest error, or the decision
was contrary to the overwhelming weight of the evidence.” Balfour v. State,
598 So. 2d 731, 742 (Miss. 1992); Alexander v. State, 736 So. 2d 1058, 1062
(Miss. Ct. App. 1999).
Baldwin v. State, 757 So. 2d 227, 231 (Miss. 2000).
18
¶30. 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.
Miranda explains:
Once warnings have been given, the subsequent procedure is clear. 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. . . . An express statement that the individual is willing to
make a statement and does not want an attorney followed closely by a
statement could constitute waiver. . . .
Miranda v. Arizona, 384 U.S. 436, 473-75, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
¶31. As noted above, at the start of the custodial interview, Lyon read Gillett his Miranda
rights and had him initial next to each right listed on the Miranda Card to indicate that he
fully understood his rights. When asked if, having his rights in mind, he was willing to talk,
Gillett gave an ambiguous response by marking an “X” on the Miranda Card between the
“YES” and “NO” boxes. Lyon then asked the clarifying question, “Ok, so you want to go
ahead and talk for a little bit, then, right?” Gillett responded, “Maybe.” Lyon then again
attempted to clarify whether Gillett wanted to talk by asking, “Ok, will you sign at least then
that you’ll talk to me for a little bit?” Gillett then signed and dated the card and asked,
“What’s this about?” 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. Miranda, 384 U.S. at 473-74.
19
¶32. Because Gillett did not 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 by stating, “I need to speak with an attorney.”
After Gillett made this statement, Lyon immediately ceased questioning him, told him he
would return him to jail, and told him what the charges against him were (as they were listed
on the search warrant for 606 North Ash Street, which Gillett reviewed at the start of the
interview), and that there may be additional charges. Gillett then asked, “Like [what
additional charges]?,” but Lyon told Gillett that, because Gillett had invoked his right to
counsel, Lyon could not speak with him further about the matter, unless he withdrew his
request for an attorney. Shortly thereafter, Gillett explicitly withdrew his request for an
attorney, stating “Yes, I’m withdrawing my request for an attorney.” The interview then
proceeded for between ten and fifteen minutes until Gillett again invoked his right to counsel,
and Lyon promptly ended the interview.
¶33. Smith v. Illinois explains that “if the accused invoked his right to counsel, courts may
admit his responses to further questioning only on the finding that he (a) initiated further
discussions with the police, and (b) knowingly and intelligently waived the right he had
invoked.” Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). As
discussed, Gillett did just that; he initiated further discussions with police by asking “Like
[what additional charges]?,” and then knowingly and intelligently waived the right to counsel
he had invoked.
20
¶34. Gillett argues that Lyon’s informing Gillett of the charges against him after Gillett had
invoked his right to counsel constituted continued interrogation; however, that argument is
without merit. The U.S. Supreme Court explained in Rhode Island v. Innis that “the
definition of interrogation can extend only to words or actions on the part of police officers
that they should have known were reasonably likely to elicit an incriminating response.”
Rhode Island v. Innis, 446 U.S. 291, 303, 100 S. Ct. 1682, 1690, 64 L. Ed 2d 297 (1980)
(emphasis in original). Lyon’s statement informing Gillett of the charges against him was
not a statement that Lyon “should have known was reasonably likely to elicit an
incriminating response.” Id. (emphasis removed). When Lyon verbally told Gillett what the
charges against him were, Lyon was not informing Gillett of anything Gillett had not already
had an opportunity to read in the search warrant for 606 North Ash Street, which Lyon had
given Gillett to review at the start of the interview. Notably, at the time of the interview,
Lyon did not know that anyone had been murdered.
¶35. Therefore, the trial court’s denial of Gillett’s motion to suppress his custodial
statement was not manifest error nor was it contrary to the overwhelming weight of the
evidence.
III. Whether the trial court erred in denying Gillett’s motion to suppress seizures from
the warranted search of 606 North Ash Street.
¶36. Gillett’s next assignment of error is that the trial court erred in denying his motion to
suppress items seized from the warranted search of 606 North Ash Street, Russell, Kansas,
the residence of Gillett’s aunt, Patty Hulett, with whom Gillett was staying while in Russell.
21
On March 29, 2004, Agent Lyon secured a search warrant for 606 North Ash Street. Lyon’s
affidavit for the search warrant explained that Lyon had more than twenty years of narcotics
investigation experience and listed the unique knowledge Lyon had because of that
experience. The affidavit then informed the court that:
At approx. 11:15am on 03-29-2004, SSA LYON and SA Sherri MOORE
interviewed Debbie Lynn MILAM at the Russell County Sheriff’s Office
(SO).
MILAM advised of the following:
MILAM was not under the influence of alcohol or any other drug. She last
used methamphetamine approx. six years ago. She is the aunt of Roger Lee
GILLETT.
GILLETT drove to Russell, Ks on 03-26-2004.
On 03-28-2004, during the evening hours, GILLETT and his girlfriend, Lisa
Jay [sic] CHAMBERLIN, had MILAM drive them, in MILAM’s vehicle, to
MILAM’S uncle’s abandoned farm, located at the northeast corner of section
33, Township 11 South, Range 13 West, Russell County, Ks, commonly
known as 5482-190th St. MILAM observed GILLETT get in a white pickup
truck, which he placed in a shed. MILAM then slept in her vehicle. When she
awoke, she could smell a strong odor. GILLETT had a trash bag with him.
He showed her a firearm, and advised that if she told anyone what he was
doing, he would kill her.
GILLETT and CHAMBERLIN entered MILAM’S vehicle with the trash bag.
He had MILAM drive back roads to Bunker Hill, Ks, to dispose of the trash.
He then changed his mind, and had MILAM drive to Russell. MILAM asked
him if he wanted to throw the trash bag in her trash, and he advised he did not
want to put it in her trash. He directed her to drive to the Russell City
swimming pool, where he threw the trash bag in the dumpster at the pool.
MILAM then drove GILLETT and CHAMBERLIN to 606 North Ash,
Russell, KS, where he stays when he is in Russell.
GILLETT advised MILAM of the following:
22
GILLETT needed to obtain a storage unit to hide the pickup truck that was at
the above farm house. It was stolen from Mississippi. He had left “D” in
MILAM’s vehicle. He had “stuff” on him now. The FBI was looking for him,
as he had committed computer crimes in Oregon. He had obtained computers
and false identification for drug dealers there.
SSA Lyon determined that there was an active felony warrant for GILLETT
in Pendleton, Umatilla County, Oregon, for the following:
7 Counts of forgery in the first degree.
5 Counts of theft in the first degree.
26 Counts of identity theft.
41 Counts of Computer crime.
Russell County SO Deputy Kelly SCHNEIDER advised that MILAM showed
him items she had observed at the farm house. These items were consistent
with that of a clandestine methamphetamine laboratory. Deputy SCHNEIDER
further advised of the following:
ON 02-17-2004, Russell County Deputy Fred WHITMAN conducted a traffic
stop on CHAMBERLIN’S vehicle. He found her in possession of an 18 ounce
bottle of Red Devil Lye, a 32 ounce bottle of Sunnyside Muriatic Acid, a small
quantity of green vegetation and other drug paraphernalia.
MILAM showed SA MOORE the bag in the above dumpster. SA MOORE
retrieved it. KBI SA Brian Carroll advised there was a methamphetamine
laboratory in the trash bag. MILAM signed a consent to search her vehicle.
Deputy SCHNEIDER advised he found a propane tank in her vehicle as well
as ammonium sulfate and sodium hydroxide in the trash. SSA LYON knows
that these chemicals are consistent with the manufacture of anhydrous
ammonia.
Russell County Sheriff John FLETCHER advised that Russell County
Undersheriff Max BARRETT had spoken to a neighbor near the above farm
house. The neighbor had observed the above white pickup at the farm house
on 03-25-2004 or 03-26-2004.
SSA LYON had interviewed GILLETT in 1993, after GILLETT had been
arrested by the Osborne County SO for possession of marijuana. He advised
SSA LYON that he had been fronted the marijuana that he had been caught
with, and owed money for it.
23
Therefore, the undersigned requests that a search warrant be issued for the
items described herein, as provided by law.
¶37. 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. Gillett also
contends that the affidavit failed to contain sufficient, particularized facts from which the
magistrate judge could have found a substantial basis for probable cause. Gillett argues that
the items seized from the search of 606 North Ash Street should be suppressed because they
were based on uncorroborated information from an informant whose reliability was not
established, and they are unconstitutional under the United States, Kansas, and Mississippi
constitutions.
¶38. This Court has held that:
In determining whether the issuance of a search warrant is proper, an appellate
court will review the trial judge’s decision to determine whether there was a
substantial basis for concluding that probable cause existed. The reviewing
court will overturn the trial court if there is an absence of substantial credible
evidence to support the issuance of the search warrant.
Culp v. State, 933 So. 2d 264 (Miss. 2005) (internal citations omitted); see also Roach v.
State, 7 So. 3d 911, 917 (Miss. 2009) (where this Court stated that, in reviewing a
magistrate’s finding of probable cause, this Court does not apply a de novo standard of
review, but rather examines whether there was a substantial basis for the magistrate’s
determination). Further, this Court applies a “totality of the circumstances” analysis to
determinations of probable cause. Lee v. State, 435 So. 2d 674, 676 (Miss. 1983). This
Court has elaborated:
24
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.
Id.
¶39. As is evident from the portion of Lyon’s affidavit included above, there was a
substantial basis for the magistrate judge and the trial court to conclude that probable cause
existed. As noted above, Debbie Milam, Gillett’s aunt, informed Lyon 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. In addition, Gillett had threatened Milam with a
firearm; he had “stuff” on him now; and Milam had dropped Gillett off at 606 North Ash
Street, where he was staying while in Russell.
¶40. Furthermore, while this Court has held that probable cause does not exist for the
issuance of a search warrant when the search warrant contains no corroboration or indicia of
veracity or reliability of the informant (State v. Woods, 866 So. 2d 422, 427 (Miss. 2003)),
Lyon’s affidavit in support of the search warrant includes information corroborating Milam’s
statements. For example, Milam’s statement that Gillett was in possession of a stolen white
pickup truck was corroborated by neighbors of the Gillett farm who said they had seen the
truck; Milam’s statements regarding Gillett manufacturing methamphetamine were
corroborated by her leading officers to the trash bag Gillett had discarded, which indeed
contained items used in the manufacture of methamphetamine (referred to by officers as a
“methamphetamine laboratory”); Milam’s statements regarding the manufacture of
25
methamphetamine were further corroborated when she allowed officers to search her vehicle
and find a propane tank in her trunk, reportedly left there by Gillett; and Milam’s statement
that Gillett had committed computer crimes in Oregon was corroborated when Agent Lyon
discovered that there was an active felony warrant for Gillett’s arrest for computer crimes
committed in Oregon.
¶41. Therefore, there was a substantial basis for the magistrate judge to issue the warrant
and for the trial court to conclude that probable cause existed. Accordingly, we find that the
trial court did not err in denying Gillett’s motion to suppress the seizures from the warranted
search of 606 North Ash Street.12
IV. Whether the trial court erred in denying Gillett’s motion to suppress evidence of
the warranted search of 5482 190th Street.
¶42. Gillett’s next assignment of error is that the trial court erred in denying his motion to
suppress seizures from the warranted search of the Gillett farm, located at 5482 190th Street,
Russell County, Kansas. On March 29, 2004, Agent Lyon secured a search warrant for the
Gillett farm. Lyon supported the warrant with an affidavit containing the same information
contained in the affidavit he had prepared to support the warrant for the search of 606 North
Ash Street, the content of which is included in the discussion of the previous issue above.
We find that, based on the information included in the affidavit in support of the warrant for
12
One of the State’s arguments regarding this issue is that Gillett never showed a legitimate
expectation of privacy in the residence at 606 North Ash Street, owned by his aunt, and therefore
Gillett failed to establish standing to challenge the warranted search of 606 North Ash Street. Given
the discussion above regarding the propriety of the search warrant and the search, this argument is
not relevant and need not be addressed.
26
the search of the Gillett farm, there was a substantial basis for the magistrate judge to issue
the warrant and for the trial court to conclude that probable cause existed.
¶43. In addition to arguing that there was no probable cause to issue the search warrant for
the Gillett farm, Gillett argues that the search warrant for the farm is invalid for failure to
describe with particularity the place to be searched, and that the search conducted was
beyond the scope of the warrant. Gillett’s primary argument is that the only structure on the
farm that lawfully could have been searched was “a shed” into which Milam told Lyon she
saw Gillett drive a white pickup truck and to which Lyon referred in his affidavit.
¶44. The search warrant for the farm authorized the officers to search:
A farm house located in the northeast corner of section 33, Township 11 South,
Range 13 West, Russell County, Ks, commonly known as 5482-190th St., to
include any out buildings normally associated with this residence.
The search is to include the persons of anyone on the property at the time of the
search and any vehicles or conveyances located on the property at the time of
the search.
This description of the places to be searched “particularly describ[es] the place to be searched
and the persons or things to be seized,” as a search warrant is required to do. Maryland v.
Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). At trial, through use of
testimony and exhibits, the farm was described as a cluster of buildings, situated fairly close
together, consisting of a metal shed, a wooden shed, an abandoned farmhouse, and an
outhouse (or old chicken house). A search of any or all of these buildings was within the
scope of the warrant, which authorized search of “a farm house” and “any out buildings
normally associated with this residence.” Further, regarding the propriety of the scope of the
27
warrant, Milam did not indicate that Roger’s activities at the farm involving
methamphetamine had taken place only in a single shed. In sum, 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. Therefore, the trial court did not err in denying
Gillett’s motion to suppress evidence obtained during the warranted search of the farm.
V. Whether the trial court erred in denying Gillett’s motion for directed verdict as to
Count II of the indictment, charging Gillett with the capital murder of Vernon Hulett.
¶45. Gillett’s fifth assignment of error is that Count II of the indictment, charging Gillett
with the capital murder of Vernon Hulett, 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 Linda Heintzelman. Gillett contends that, in order for him to be guilty of capital
murder under Mississippi Code Section 97-3-19(2)(e), Vernon Hulett must have had an
interest in the white pickup truck that allegedly was stolen.
¶46. Mississippi Code Section 97-3-19(2)(e) states that:
(2) The killing of a human being without the authority of law by any means or
in any manner shall be capital murder in the following cases:
...
(e) When done with or without any design to effect death, by any person
engaged in the commission of the crime of rape, burglary, kidnapping, arson,
robbery, sexual assault . . . or in any attempt to commit such felonies[.]
Miss. Code Ann. 97-3-19(2)(e) (Rev. 2006). The statute simply states that, to constitute
capital murder, the killing of a human being must be committed while “engaged in the
commission of the crime of . . . robbery . . . .” It does not state that the person killed must
have had an interest in the property taken. See BellSouth Telecomms., Inc. v. Miss. Pub.
28
Serv. Comm’n, 2009 WL 2393808, *4 (Miss. Aug. 6, 2009) (“When the language used by the
Legislature is plain and unambiguous and the statute conveys a clear and definite meaning,
as here, the Court will have no occasion to resort to the rules of statutory interpretation.”).
As support for this proposition that the person killed need not have had an interest in the
property taken, the State cites Grant v. State, 8 So. 3d 213, 216 (Miss. Ct. App. 2008), cert.
denied, 12 So. 3d 531 (Miss. 2009), which held that the killing of a coconspirator during a
robbery constituted capital murder under Section 97-3-19(2)(e). The State logically argues
that, if a coconspirator, who obviously does not have a valid interest in the property he was
stealing, is covered by the statute, so must be an innocent victim.13 Therefore, we find that
the trial court did not err in denying Gillett’s motion for directed verdict on Count II of the
indictment, and further, that all arguments Gillett makes regarding this claim are without
merit.14
13
The primary case Gillett cites as support for the proposition that Count II should not have
proceeded to the jury, Thomas v. State, 278 So. 2d 469, 472 (Miss. 1973), does not in fact support
that proposition. Rather, Thomas merely states that specific intent to steal is an essential element
of the crime of robbery. Id.
14
The further arguments Gillett makes regarding this claim are:
Claim 5(A)
Therefore, it was reversible error to overrule Mr. Gillett’s motion for a directed
verdict on Count Two and jury instruction D-72, the peremptory instruction on Count
Two, and Mr. Gillett’s motion for judgment notwithstanding the verdict[.]
Claim 5(B)
Because Count Two should not have gone to Mr. Gillett’s jury, the verdict of guilty
as charged on Count Two is legally insufficient and cannot stand[.]
Claim 5(C)
29
CULPABILITY PHASE
VI. Whether the trial court erred in allowing jury instructions S-5 and S-6.
¶47. Gillett’s next assignment of error is that the trial court erred in allowing jury
instructions S-5 and S-6 because they do not require the jury to conclude that the intent to rob
the victims was formed sometime before the victims died. “This Court has repeatedly held
that, ‘jury instructions are within the sound discretion of the trial court.’” Rubenstein v. State,
941 So. 2d 745, 787 (citing Goodin v. State, 787 So. 2d 639, 657 (Miss. 2001)).
¶48. S-5 states:
The Court instructs the Jury that in a case of Capital Murder the fact that the
victim was dead at the time of taking her personal property does not mitigate
against the conclusion of the robbery. If the intervening time between the
murder, if any, and the time of the taking of the property, if any, formed a
continuous chain of events, the fact that the victim was dead when the property
was taken cannot absolve the Defendant from the crime.
If you should find from the evidence in this case beyond a reasonable doubt that
Roger Lee Gillett, alone or in conjunction with another, killed and murdered
Linda Heintzelman and then, after the said Linda Heintzelman was dead, took
the personal property of Linda Heintzelman; and if you should further find
beyond a reasonable doubt that the intervening time between the time of the
murder, if any, and the time of the taking of the property, if any, formed a
continuous chain of events, the fact that Linda Heintzelman was dead when the
property was taken does not absolve the Defendant from the crime of capital
murder in Count I.
Because Mr. Gillett’s conviction as charged under Count Two is legally insufficient,
the death sentence for this conviction must be vacated[.]
Claim 6
Entirely because Count Two was legally insufficient for reasons stated in claim 5,
the death sentence for the conviction under Count One must also be vacated as it is
premised on inadmissible evidence of bad character[.]
30
¶49. S-6, which is nearly identical to S-5, aside from the substitution of Vernon Hulett’s
name as the murder victim, states:
The Court instructs the Jury that in a case of Capital Murder the fact that the
victim was dead at the time of taking the personal property of Linda
Heintzelman does not mitigate against the conclusion of the robbery. If the
intervening time between the murder, if any, and the time of the taking of the
property, if any, formed a continuous chain of events, the fact that the victim
was dead when the property was taken cannot absolve the Defendant from the
crime.
If you should find from the evidence in this case beyond a reasonable doubt that
Roger Lee Gillett, alone or in conjunction with another, killed and murdered
Vernon Hulett and then, after the said Vernon Hulett was dead, took the
personal property of Linda Heintzelman; and if you should further find beyond
a reasonable doubt that the intervening time between the time of the murder, if
any, and the time of the taking of the property, if any, formed a continuous
chain of events, the fact that Vernon Hulett was dead when the property was
taken does not absolve the Defendant from the crime of capital murder in Count
II.
¶50. First, as pointed out by the State numerous times at trial and in its brief to this Court,
Mississippi follows the “one-continuous-transaction” rationale in capital cases. In other
words, “where the two crimes [e.g., murder and robbery] are connected in a chain of events
and occur as part of the res gestae, the crime of capital murder is sustained.” Pickle v. State,
345 So. 2d 623, 627. “An indictment charging a killing occurring ‘while engaged in the
commission of’ one of the enumerated felonies includes the actions of the defendant leading
up to the felony, the attempted felony, and flight from the scene of the felony.” Turner v.
State, 732 So. 2d 937, 950 (Miss. 1999) (quoting West v. State, 553 So. 2d 8, 13 (Miss.
1989)).
31
¶51. Moreover, this Court specifically has found that the intent to rob, which is required to
prove the underlying felony of robbery, can be shown from the facts surrounding the crime.
Walker v. State, 913 So. 2d 198, 224 (Miss. 2005); Lynch v. State, 877 So. 2d 1254, 1266
(Miss. 2004)). The Walker v. State Court explained the following:
In Knox v. State, 805 So. 2d 527 (Miss. 2002), Knox contended that the State
presented insufficient evidence to prove that he intended to rob the victim when
he killed her. Because of the alleged insufficiency of evidence, Knox argued
that the State failed to prove the underlying felony of robbery, and, therefore,
the charge of capital murder. Id. at 531. This Court disagreed with Knox’s
claims holding: “‘Intent to do an act or commit a crime is also a question of fact
to be gleaned by the jury from the facts shown in each case.’” Id. (quoting
Shanklin v. State, 290 So. 2d 625, 627 (Miss. 1974)). This Court found it most
significant that Knox was in possession of the victim’s personal belongings at
the time he was arrested. Id. at 532. This Court held: “[W]hen the defendant
is discovered with the personal property of the deceased on his person, it is
entirely within reason for the jury to find that this fact in itself constitutes
robbery.” Id.
Walker, 913 So. 2d at 224. 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
Linda Heintzelman. Not only was evidence revealed at trial that Gillett was in possession of
the stolen truck, but a witness testified that Gillett had confessed to him that “he had taken the
pickup and the owners [whom he had ‘taken care of’] were in the back of it.”
¶52. Lastly, the primary authority on which Gillett relies to support the proposition that the
State must prove that Gillett had intent to rob Heintzelman prior to killing her – Pickle v.
State, 345 So. 2d 623, 626 (Miss. 1977) – does not stand for that proposition. Rather, as
stated above, Pickle stands for the proposition that the crime of capital murder exists where
32
“the two crimes are connected in a chain of events and occur as part of the res gestae.” 15 Id.
at 627.
¶53. Therefore, the trial court did not abuse its discretion in allowing the jury to consider
instructions S-5 and S-6.
¶54. Gillett also argues that instruction S-6 was improper because Vernon Hulett had no
property interest in the white pickup truck. Based on the analysis provided under the previous
section heading (section “V”), we find that argument to be without merit.
VII. Whether the trial court erred in permitting expert testimony regarding DNA results
over Gillett’s Daubert objection.
¶55. Gillett’s next assignment of error is that the trial court erred in permitting the expert
testimony of William Jones, DNA Section Chief at the Mississippi Crime Laboratory,
regarding DNA results, over Gillett’s Daubert objection. A pretrial Daubert hearing was held
on September 20, 2007, regarding the reliability of DNA evidence the State wished to
introduce, which showed that a shoe recovered from the landfill in Russell, Kansas, had the
blood of Linda Heintzelman on it. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
¶56. At the hearing, the primary point of contention was that the blood samples taken from
the deceased bodies of Linda Heintzelman and Vernon Hulett during their autopsies had been
15
The discussion in Pickle contains a block quote from American Jurisprudence, which
includes the statement: “The felony-murder doctrine does not apply, however, when the
determination to steal property of the victim is not formed until after the homicide.” Pickle, 345 So.
2d at 626 (quoting 40 Am. Jur. 2d Homicide § 73 at 366-67 (1968)). The Pickle court, however, did
not state it was adopting what the American Jurisprudence quote stated. Id.
33
stored in “red-top” tubes, as opposed to “purple-top” tubes – purple-top tubes being the
preferred type, if available. Purple-top tubes are preferable because they contain a
preservative that prevents the blood from clotting or otherwise deteriorating. Red-top tubes
contain no preservative.
¶57. Jones – who has been a forensic scientist since 1989 – testified that it is the Mississippi
Crime Laboratory’s practice to use the red-top tubes for DNA if no purple-top tubes are
available.16 Jones testified that customary procedures and controls were used in his testing
of the samples at issue, and that nothing had occurred in the analytical process that caused him
any concern regarding the controls. He testified that the Crime Laboratory’s protocol does
not exclude red-top tubes from being used, and that other DNA analysts also use red-top
tubes. Jones was satisfied with the test results and confident that there was no error. He
testified that there is no way that using a red-top tube would have resulted in a
misidentification; he is “absolutely convinced that if you get a DNA profile from red-top tube,
16
Jones initially had requested purple-top tubes for testing, indicating in a report that
“purple-top tubes are needed,” because, at the time that he authored the report, he did not know that
Linda Heintzelman and Vernon Hulett were dead and that purple-top tubes thus could not be
provided. At the Daubert hearing, Jones clarified that, when he wrote “purple-top tubes are
needed,” he meant, they are needed, if available.
Dr. Donald Pojman, the pathologist who performed the autopsies of Linda Heintzelman and
Vernon Hulett and collected the blood samples from them, explained why he put the blood samples
in red-top tubes:
Generally, when we’re doing DNA testing or other type [sic] of blood
banking work, they want the tubes in a purple-top tube which has the preservative
EDTA in it.
Well, after death that changes because all the blood is going to be clotted
anyway. So our red tops, our purple tops, and our green tops are the exact same
tubes. . . .
34
that it would be the same as from the purple-top tube of that individual.” In other words,
results from a red-top tube sample either would provide a valid identification or no
identification at all, but not a misidentification.
¶58. Gillett’s DNA expert, Dr. Peter D’Eustachio, testified that test results reached by Jones
are unreliable because Jones used red-top tubes. D’Eustachio testified that the red-top-tube
samples that were tested in this case behaved in an unexpected way. He criticized the Crime
Laboratory for not having validated the procedure for testing red-top tubes. He testified that
no validation studies had been conducted regarding red-top tubes. D’Eustachio conceded that
he did not know of any studies that address red-top-tube testing.
¶59. At the conclusion of the hearing, the trial court ruled that the DNA evidence would be
admissible at trial, and that the jury would be left to attach the amount of weight to the
evidence they deemed warranted, explaining:
While the red-top tubes may not be the preferred way for substances to be
submitted for DNA evaluation, for the purposes of this hearing and the matters
before this Court today, I think that the Daubert gatekeeping role of this Court
is to play, I think the State’s witness certainly satisfies those criteria, and your
motion will be denied and this evidence will be allowed. Of course, the
remainder of that question is left to the providence of the jury.
¶60. Gillett now argues that the trial court erred in this ruling 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, which found that the blood
on the shoe from the Russell, Kansas, landfill matched Linda Heintzelman’s blood (but not
Vernon Hulett’s blood).
35
¶61. A trial court’s admission or exclusion of expert testimony is reviewed for abuse of
discretion. Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31 (Miss. 2003). The trial
court’s decision will stand unless the reviewing court concludes that the decision was arbitrary
and clearly erroneous, amounting to an abuse of discretion. Id.
¶62. In McLemore, this Court adopted the “Daubert/Kumho” rule – in other words, the
U.S. Supreme Court’s standard set forth in Daubert, 509 U.S. 579, and Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) – as the standard for
assessing the reliability and admissibility of expert testimony. McLemore, 863 So. 2d at 35.
Of primary importance in assessing the admissibility of expert testimony is Rule 702 of the
Mississippi Rules of Evidence, which is identical to Rule 702 of the Federal Rules of
Evidence. It states:
If scientific, technical or other specialized knowledge will assist the trier of fact
to understand or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the
form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts
of the case.
Miss. R. Evid. 702.
¶63. Summarizing Daubert and Kumho, the McLemore Court explained the following:
“[T]he liberal goals of the [rules] include reducing the traditional barriers to opinion
testimony.” McLemore, 863 So. 2d at 36 (citing Daubert, 509 U.S. at 588-89). See also
Poole v. Avara, 908 So. 2d 716, 722 (Miss. 2005) (“The [U.S. Supreme] Court emphasized
the liberal thrust of the rules and the general approach of the rules to relax the traditional
36
barriers to opinion testimony.”). Trial courts, however, retain authority to review scientific
evidence to determine admissibility and are vested with a “gatekeeping responsibility.”
McLemore, 863 So. 2d at 36 (citing Daubert, 509 U.S. at 589). The trial court must engage
in a two-pronged inquiry, determining whether the expert testimony rests on a reliable
foundation and is relevant to the matter. Id. Regarding the “reliability” prong – the prong at
issue in the instant case – the testimony must be grounded in the methods and procedures of
science, not merely a subjective belief or unsupported speculation. McLemore, 863 So. 2d
at 36 (citing Daubert, 509 U.S. at 590). As Rule 702 states, the testimony must be “based on
sufficient facts or data” and be “the product of reliable principles and methods.” Miss. R.
Evid. 702.
¶64. The Daubert Court adopted a nonexhaustive, illustrative list of reliability factors for
determining the admissibility of expert testimony. McLemore, 863 So. 2d at 36 (citing
Daubert, 509 U.S. at 592-94). The factors include: whether the theory or technique can be
and has been tested; whether it has been subjected to peer review and publication; whether,
in respect to a particular technique, there is a high known or potential rate of error; whether
there are standards controlling the technique’s operation; and whether the theory or technique
enjoys general acceptance within a relevant scientific community. McLemore, 863 So. 2d at
37 (citing Daubert, 509 U.S. at 592-94). The applicability of these factors varies depending
on the nature of the issue, the expert’s particular expertise, and the subject of the testimony.
McLemore, 863 So. 2d at 37 (citing Kumho Tire, 526 U.S. at 151). The analysis of expert
testimony’s admissibility is a flexible one that must focus on the principles and methodology
37
applied, not on the conclusions they generate. McLemore, 863 So. 2d at 37; Daubert, 509
U.S. at 595.
¶65. The McLemore Court emphasized that “the trial court’s role as gatekeeper is not
intended as a replacement for the adversary system.” McLemore 863 So. 2d at 39.
“‘Vigorous cross-examination, presentations of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.’” McLemore, 863 So. 2d at 36 (quoting Daubert, 509 U.S. at 595-96).
If the trial court concludes that the evidence supporting a position is insufficient to allow a
reasonable juror to conclude that the position is more likely than not true, the trial court can
direct a judgement or grant summary judgment. McLemore, 863 So. 2d at 36 (citing Daubert,
509 U.S. at 596). These traditional devices, rather than the wholesale exclusion of the
testimony, are the appropriate safeguards where the testimony meets the standards of Rule
702. McLemore, 863 So. 2d at 37; Daubert, 509 U.S. at 596. “Absent other grounds to
exclude, an expert’s testimony is presumptively admissible when relevant and reliable.”
McLemore, 863 So. 2d at 39.
¶66. Based on review of the testimony of the parties’ expert witnesses at the Daubert
hearing, we find that it was not an abuse of discretion for the trial court to find that Jones’
testimony was based on sufficient data and was the product of reliable methods. Therefore,
the trial court did not abuse its discretion in allowing Jones to testify at trial regarding the
DNA evidence. As noted above, cross-examination and presentation of contrary evidence
38
were the appropriate means of attacking any aspects of Jones’ testimony; however, the
defense chose neither to cross-examine Jones nor to object to his testimony at trial.
VIII. Whether the trial court erred in denying Gillett’s requested culpability-phase
instructions: D-42, -44, -45, -53, -60, -19, -25, -41, and -20.
¶67. Gillett’s next assignment of error is that the trial court erroneously excluded several
of his culpability-phase jury instructions. As noted in section VI, “[t]his Court has repeatedly
held that, ‘jury instructions are within the sound discretion of the trial court.’” Rubenstein
v. State, 941 So. 2d 745, 787 (citing Goodin v. State, 787 So. 2d 639, 657 (Miss. 2001)). In
addition, as stated in Walker v. State, 913 So. 2d 198 (Miss. 2005):
This Court does not single out any instruction or take instructions out of
context; rather, the instructions are to be read together as a whole. Thomas v.
State, 818 So. 2d 335, 349 (Miss. 2002). A defendant is entitled to have jury
instructions which present his theory of the case. Id. This entitlement is
limited, however, in that 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. Id.
Walker, 913 So. 2d at 324 (quoting Parks v. State, 884 So. 2d 738, 746 (Miss. 2004).
¶68. Gillett claims that instructions D-42, -44, and -45, individually and collectively, were
erroneously excluded. These instructions read:
D-42:
It is a defense theory that the prosecution’s investigation evidence in this
case was negligent, incomplete, purposefully distorted and/or not done in good
faith. You are to assess the credibility of the investigative evidence together
with all of the other evidence.
Investigation which is thorough and conducted in good faith may be
credible while an investigation which is incomplete, negligent or in bad faith
may be found to have lesser value or no value at all.
39
In deciding the credibility of the witness and the weight, if any, to give
the prosecution evidence, consider whether the investigation was negligent
and/or conducted in bad faith.
D-44:
If you find that the State inadequately investigated one matter, you may
infer that the prosecution also inadequately investigated other matters. Based
on this inference alone you may disbelieve the prosecution witnesses and
evidence. This, by itself, may be sufficient for you to have a reasonable doubt
as to the defendant’s guilt.
D-45:
As the State has lost evidence, there is a rebuttable presumption that the
information contained in that evidence would have been favorable to the
defendant.
¶69. As support for Gillett’s claim that the prosecution’s investigation was negligent,
incomplete, purposefully distorted, and/or not done in good faith, he states the following:
Debbie Milam, Kathy Thacker and Jimmy Ploutz drove to the
farmstead during the pre-dawn hours of March 29, 2004.
None of these individuals initially told police that they went to
the farmstead during the pre-dawn hours of March 29, 2004.
These individuals all told police that they stored items taken from
the farmstead on March 29, 2004, at the residence of Nona Kay
Adams, 440 15th Street, Russell, Kansas.
KBI Agent Butler photographed, catalogued and collected at
least one cigarette butt, one chewed plastic straw and one
cigarette lighter that KBI Agent Butler explained were beneath
the freezer (cigarette butt), behind the freezer (chewed plastic
straw) and “right in front of the freezer where the bodies were
found” and “looked as if it were new to the scene” (blue cigarette
lighter). None of these items were ever analyzed for biological
40
or fingerprint information even though police had Mr. Gillett’s
fingerprints, blood, oral swabs and body hair.
KBI Agent Butler photographed and seized a cardboard scabbard
for a handsaw. This scabbard was found in the same wooden
shed where the human remains were found. Dr. Pojman created
cut margins on the injuries to each side of Mr. Hulett’s
dismembering injuries. Agent Butler and Dr. Pojman testified
that tool markings can be compared to cut margins to identify a
cutting instrument. No cut-margin analysis was ever performed
on the handsaw identified as “Distan, 26 inch, hard point saw,
crosscut, eight points per inch.”
On April 2, 2004, four days after the discovery of the human
remains and the arrest of Mr. Gillett, police enter 440 15th Street,
Russell, Kansas, with a search warrant. Police photograph a
hammer at the location where Debbie Milam, Kathy Thacker and
Jimmy Ploutz all tell police they stashed items taken from the
farmstead on March 29, 2004. Police never take this hammer
into evidence for processing or for comparison to pattern injuries
on a decedent, notwithstanding the findings of Dr. Pojman that
Mr. Hulett died as a result of blunt-force trauma caused by a
hammer-like instrument.
Police secured biological information from Mr. Gillett permitting
forensic comparisons with each and every item inventoried
above. Conversely, police never even sought biological
information from Debbie Milam or Kathy Thacker or Jimmy
Ploutz – even after police testified that [they] were made aware
that these individuals covered up their presence at the farmstead
by lying to police and by hiding evidence.
Hattiesburg police lost the videotape of their initial entry into the
home at 908 South Gulfport Street, Hattiesburg. Officer Byrd
refers to this tape as the tape “of the crime scene at 908 South
Gulfport St.”
¶70. 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
41
any evidence, or that it in any way acted in bad faith. Furthermore, while it is true that the
videotape of the initial entry into the home at 908 South Gulfport Street was misplaced due
to the moving of the crime-scene unit office, law enforcement officers took still photographs
of their investigation in the home, and those photographs were entered into evidence.
Therefore, no evidence was produced at trial to support instruction D-42, and the trial court
rightfully denied it.
¶71. As to instruction D-44, the cases Gillett offers to support this instruction – United
States v. Shyllon, 10 F.3d 1, 3 (D.C. Cir. 1993), People v. Wimberly, 7 Cal. Rptr. 2d 152,
163-64 (Cal. Ct. App. 1992), and Commonwealth v. Bowden, 399 N.E.2d 482, 491 (Mass.
1980) – are not binding precedent, and moreover do not actually support the proposition
raised by the instruction. Furthermore, as just noted, there is no evidence that the State
inadequately investigated the matter.
¶72. As to instruction D-45, since there is no evidence to suggest that the video of the search
of 908 South Gulfport Street would have revealed anything significantly different from the
still photos taken at the residence (which were submitted as exhibits), 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.
¶73. Therefore, the trial court did not abuse its discretion in excluding D-42, D-44, and D-
45.
42
¶74. Gillett next argues that the trial court erred in excluding jury instructions D-53 and D-
60, Gillett’s proposed lesser-included or manslaughter instructions. D-53 – which regarded
Linda Heintzelman and is substantively identical to D-60 regarding Vernon Hulett – stated:
If you acquit Roger Gillett of the capital murder of Linda Heintzelman
and the murder of Linda Heintzelman you may then consider whether Roger
Gillett is guilty of the manslaughter of Linda Heintzelman.
If you find from the evidence unanimously and beyond a reasonable
doubt, that Roger Gillett, on or about March 20, 2004, in Forrest County,
purposely or knowingly caused serious bodily injury to Linda Heintzelman
through the use of a deadly weapon or other means likely to produce death or
serious bodily harm but without deliberate design to effect the death of Linda
Heintzelman and, further, that Roger Gillett was not acting in self defense, was
not acting in defense of another, did not act with lawful authority, had the
mental capacity to know right from wrong at the time, and the assault upon
Linda Heintzelman was not accidental, and that, as a result of the assault, Linda
Heintzelman died, then you shall find Roger Gillett guilty of manslaughter.
If the prosecution has failed to prove any one or more of the above listed
elements beyond a reasonable doubt, then you shall find Roger Gillett not guilty
of manslaughter.
¶75. This Court has held that 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 . . .
.” Underwood v. State, 708 So. 2d 18, 36-37 (Miss. 1998) (citing Welch v. State, 566 So. 2d
680, 684 (Miss. 1990)). See also Bellinger v. State, 667 So. 2d 1242, 1255 (Miss. 1995).
There is no evidence in the record to support the theory that Linda Heintzelman and Vernon
Hulett were killed “without deliberate design to effect [their] death[s]” (Instruction D-53 and
60); Gillett never offered an alternative evidentiary scenario to show that the killings were
43
consistent with his version of manslaughter included in the instruction above. Therefore, we
find that there is no evidence in the record to support jury instructions D-53 and D-60.
¶76. Gillett next argues that the trial court erred in excluding jury instruction D-19, which
regarded reasonable doubt. D-19 stated:
I shall not define “reasonable doubt” for you. Each of you is free to
determine what you believe to be a “reasonable doubt.” Therefore, it is not
necessary that a reasonable doubt be a collective doubt shared by all or a
majority of the jurors. If a reasonable doubt is present in the mind of only a
single juror, then the juror must vote to acquit.
Gillett argues that this instruction was necessary to emphasize that each juror must be
convinced of guilt beyond a reasonable doubt.
¶77. As noted above, the trial court is allowed to refuse instructions fairly covered
elsewhere in the instructions, and the trial court gave instruction C-2 regarding probable
cause, which stated:
This Court instructs the jury that you are bound in deliberating upon this
case, to give the defendant the benefit of any reasonable doubt of the
defendant’s guilt that arises out of the evidence or want of evidence in this case.
There is always a reasonable doubt of the defendant’s guilt when the evidence
simply makes it probable that the defendant is guilty. Mere probability of guilt
will never warrant you to convict the defendant. It is only when, after
examining the evidence on the whole, you are able to say on your oaths, beyond
a reasonable doubt, that the defendant is guilty that the law will permit you to
find him guilty. You might be able to say that you believe her [sic] to be guilty
and yet, if you are not able to say on your oaths, beyond a reasonable doubt,
that he is guilty, it is your sworn duty to find the defendant “Not Guilty.”
The substance of instruction D-19 was adequately covered in instruction C-2, and therefore
the trial court did not abuse its discretion in denying instruction D-19.
44
¶78. Gillett next contends that the trial court erred in excluding jury instruction D-25, which
regarded impeachment of a witness. D-25 stated:
The testimony of a witness or witnesses may be discredited or
impeached by showing that on a prior occasion they made a statement which
is now inconsistent or contradictory to their testimony in this case. In order to
have this effect, the inconsistent or contradictory prior statement must involve
a matter which is material to the issues in this case.
You may consider any earlier statements only to determine whether you
think they are consistent or inconsistent with the trial testimony of the witness
and therefore whether they affect the credibility of that witness. If you believe
that a witness has been discredited in this manner, it is your exclusive right to
give the testimony of that witness whatever weight you think it deserves, if any.
The only binding precedent Gillett submitted along with this instruction was Ellis v. State,
790 So. 2d 813, 814-16 (Miss. 2001), overruled on other grounds by Williams v. State, 32 So.
3d 486 (Miss. 2010).
¶79. When Gillett submitted this instruction at trial, the following statements were made:
THE COURT: 25?
MR. LAPPAN [Defense counsel]: Submitted.
MR. SAUCIER: Objection, Your Honor. The authority given was Ellis v.
State. The second paragraph is not in that jury instruction in Ellis v. State.
And another thing that this jury instruction doesn’t do that Ellis v. State does
is a prior statement must involve a material matter to the issues. This doesn’t
say that. The prior statement of the witness and what Ellis said was the prior
statement of the witness or witnesses can be considered by you only for the
purposes of determining the weight or believability that you give the testimony
of the witness or the witnesses that made them. You may not consider the prior
statement as proving the guilt or innocence of the defendant. This jury
instruction doesn’t contain any of that language.
THE COURT: Response?
45
MR. LAPPAN: No, sir.
THE COURT: It will be refused.
¶80. When the trial court asked the defense to respond, it declined the opportunity to inform
the court of the relevance or propriety of the instruction as a whole, and it did not take the
opportunity to point to authority that might support the second paragraph of the instruction.
This Court has held that a trial court is not required to draft or give every instruction allowable
in a capital case; it is the duty of the defendant to submit instructions that he wishes to be
given. Jordan v. State, 786 So. 2d 987, 1025 (Miss. 2001). Therefore, even if part of the
instruction was proper and supported by authority, the trial court was not required to modify
the instruction to resolve the State’s objection, nor to give the instruction at all if it found it
improper.
¶81. In addition, 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
instruction pertained to Debbie Milam. There is no evidence, however, that Milam made any
statements prior to trial that were inconsistent with her trial testimony. Milam merely did not
reveal to officers that she had returned to the Gillett farm in the predawn hours of March 29,
2004, until interviews that occurred subsequent to her initial March 29, 2004, interview, and
Milam readily admitted at trial that she did not initially reveal that information to officers.
¶82. Therefore, the trial court did not abuse its discretion in excluding instruction D-25.
46
¶83. Gillett next argues that the trial court erred in refusing instruction D-41, which
regarded a witness persistently volunteering statements prejudicial to a defendant. D-41
stated:
A witness who persistently volunteers statements prejudicial to a
defendant when such responses are not called for by the questions which are
asked is behaving in a manner offensive to the fair administration of justice.
You may consider this tendency of the witness in evaluating his possible bias,
and hence in deciding the credibility of that witness.
¶84. Gillett argues that this instruction was appropriate, in light of an alleged discrepancy
in the testimony of Agent Lyon and Agent Moore regarding why they chose not to go forward
with an undercover operation to expose Gillett. Gillett offers a portion of Lyon’s testimony,
which explained that the agents did not go forward with the undercover investigation because
it was deemed too dangerous for the undercover agent, Moore. Gillett then offers a portion
of Moore’s testimony, which explained that part of the reason they did not go through with
the undercover operation was that Moore had never worked undercover with Milam (Gillett’s
aunt, who served as an informant) before and had some concerns about her credibility.
¶85. First, the cited testimony of these two agents is not inconsistent. Second, in a different
portion of Moore’s testimony, she specifically testified that the undercover operation was not
executed because it was determined to be too dangerous. Furthermore, Gillett did not raise
this alleged discrepancy at trial as the reason for offering instruction D-41. At trial, the
following was stated:
THE COURT: 41?
MR. LAPPAN [Defense Attorney]: Submitted.
47
MR. SAUCIER: Object because it goes toward the weight and credibility of
witnesses and he shouldn’t give those.
THE COURT: Do you have authority for that statement?
MR. SAUCIER: No, sir, I don’t have any authority. I haven’t even seen that
instruction before.
THE COURT: I haven’t either.
MR. LAPPAN: Judge, the reason why I submitted D-41, if it please the Court,
is Agent Lyon, if you recall, when he was testifying under examination from
myself volunteered information that Roger had a gun at a high school and I
objected to a narrative response, and I believe he was volunteering information
that was prejudicial to Roger, and that’s why I submitted D-41.
THE COURT: I’m going to refuse it.
¶86. On appeal, Gillett does not argue that instruction D-41 was appropriate because of
Lyon’s statement about Gillett once bringing a gun to high school. However, even if he were
making that argument, the instruction still would not be appropriate because there is no
evidence in the record that Lyon “persistently volunteer[ed] statements prejudicial to [the]
defendant . . . .” Instruction D-41 (emphasis added).
¶87. Lastly, the only authority Gillett cites as support for instruction D-41 – United States
v. Andrea, 538 F.2d 1255, 1256-57 (6th Cir. 1976) – is not binding precedent, and moreover,
does not support giving the instruction. In Andrea, the Sixth Circuit noted the “apparently
deliberate injection into the record by Federal Bureau of Investigation witnesses of facts
which could have conveyed to the jury information pertaining to defendant’s incarceration on
a different charge.” Andrea, 538 F. 2d at 1256. Even so, the Sixth Circuit found the injection
48
of these facts into the record to be harmless error, given all the circumstances in the case. Id.
at 1256-57. Moreover, the statement Lyon made about Gillett bringing a gun to school was
not analogous to the statements the FBI witnesses made in Andrea; Lyon’s single mention of
gun possession was not similarly deliberate. In addition, the only objection Gillett made at
trial to Lyon’s statement about Gillett possessing a gun in high school was that it was a
“narrative response.”
¶88. Therefore, the trial court did not abuse its discretion in excluding instruction D-41.
¶89. Gillett next argues that the trial court erred in denying instruction D-20, regarding guilt
by association. D-20 reads: “Guilt by association is neither a recognized nor tolerable concept
in criminal law.”
¶90. This instruction was fairly covered elsewhere in the jury instructions, specifically by
S-7, D-8, and D-21.
S-7 stated in relevant part:
Before any Defendant may be held criminally responsible for the acts of
others, it is necessary that the accused deliberately associate himself in some
way with the crime and participate in it with the intent to bring about a crime.
Of course, mere presence at the scene of a crime and knowledge that a
crime is being committed are not sufficient to establish that a Defendant either
directed or aided and abetted the crime unless you find beyond a reasonable
doubt that the Defendant was a participant and not merely a knowing spectator.
D-8 stated:
You are here to decide whether the prosecution has proved beyond a
reasonable doubt that the defendant is guilty of the crimes charged. The
defendant is not on trial for any act, conduct, or offense not alleged in the
49
indictment. Neither are you to be concerned with the guilt of any other person
not on trial as a defendant in this case.
D-21 stated:
Roger Gillett cannot be convicted upon mere suspicion. No amount of
suspicion or innuendo, however strong, will warrant his conviction.
Because S-7, D-8, and D-21 were given, the trial court, considering the jury instructions as
a whole, did not abuse its discretion in denying D-20.
IX. Whether the State satisfactorily established venue.
¶91. Gillett’s next assignment of error is that the State failed to establish venue. This issue
is raised for the first time on appeal; however, this Court has held that “venue is jurisdictional
and must be proven, and that the question could be raised for the first time in this court.”
Crum v. State, 63 So. 2d 242, 244-45 (Miss. 1953) (internal quotations omitted).
¶92. In Hill v. State, 797 So. 2d 914 (Miss. 2001), this Court explained:
Proof of venue is an essential part of criminal prosecution, and the State
bears the burden of proving venue beyond a reasonable doubt. Venue may be
proved by either direct or circumstantial evidence. . . .
While the ultimate burden of proving venue that rests upon the State is
beyond a reasonable doubt, this is a standard of proof before the jury, not the
trial judge. . . .
As long as the evidence is sufficient to lead a reasonable trier of fact to
conclude that the crime in the present case occurred at least partly in Forrest
County [the county where Hill v. State and the instant case were tried], then the
evidence of venue is sufficient. . . .
Hill v. State, 797 So. 2d 914, 916 (Miss. 2001) (internal citations omitted).
¶93. The statutes relevant to this question of venue are Mississippi Code Sections 99-11-19
and 99-11-3(1). Section 99-11-19 provides:
50
When an offense is committed partly in one county and partly in another, or
where the acts, effects, means, or agency occur in whole or in part in different
counties, the jurisdiction shall be in either county in which said offense was
commenced, prosecuted, or consummated, where prosecution shall be first
begun.
Miss. Code Ann. § 99-11-19 (Rev. 2007).
¶94. Section 99-11-3(1) provides:
The local jurisdiction of all offenses, unless otherwise provided by law, shall
be in the county where committed. But, if on the trial the evidence makes it
doubtful in which of several counties, including that in which the indictment or
affidavit alleges the offense was committed, such doubt shall not avail to
procure the acquittal of the defendant.
Miss. Code Ann. § 99-11-3(1) (Rev. 2007).
¶95. In the instant case, 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. The State points out the following facts, which were brought forth through
trial testimony. Gillett was staying at the home of the victims, Vernon Hulett and Linda
Heintzelman. The home was located at 908 South Gulfport Street, Hattiesburg, Forrest
County, Mississippi. According to those who testified, the victims were last seen on March
19, 2004. On March 20, 2004, Gillett told Michael Hester, Vernon Hulett’s nephew who
visited Vernon’s house daily, that the victims had gone to the Coast with a friend. According
to testimony, 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
51
discovered at the farm) at the victims’ residence at 908 South Gulfport Street. The bodies
displayed were marked with signs of trauma, including cuts and stabs. Vernon Hulett’s body
was dismembered. The victims’ possessions were discovered in trash bags at a Russell,
Kansas, landfill where Gillett had been seen dropping off trash. In one of the trash bags, law
enforcement officials found a shoe with blood on it. The shoe print of the shoe with blood
on it matched a shoe print found at the victims’ residence at 908 South Gulfport Street. The
residence at 908 South Gulfport Street contained a rolled-up carpet with blood-like stains on
it. And lastly, the residence at 908 South Gulfport Street showed numerous signs of blood-
like stains throughout the house.
¶96. Presentation of these facts makes clear that sufficient evidence was presented to allow
the jury to conclude beyond a reasonable doubt that the crimes had taken place, at least in
part, in Forrest County. Therefore, the State satisfactorily established venue in Forrest
County.
X. Whether the trial court erred in overruling Gillett’s objection to inadmissible source
hearsay.
¶97. Gillett’s next assignment of error is that the trial court erred in overruling his hearsay
objection to testimony given by Terrell Carson, who was a detective sergeant with the
Hattiesburg Police Department in March 2004. At trial, the following was stated during the
direct examination of Terrell Carson:
Q. [BY MR. WEATHERS]: Can you think back to March 29[, 2004] and tell
the members of the jury whether or not you received a telephone call or
communication from a law enforcement officer or agency from the State of
Kansas in reference to an address in Hattiesburg?
52
A. [BY MR. CARSON]: I did. It was around 10:45 p.m., just before my shift
was about to end, I received a call from my dispatch. She advised that I needed
to call the Kansas Bureau of Investigation and speak with an Agent Mellor at
which time I did call and speak with him and he gave me –
MR. FARRIS: Objection, Your Honor. It calls for hearsay.
MR. WEATHERS: Your Honor, it’s not hearsay. It’s strictly information
provided to this gentleman to explain why he acted like he did.
MR. FARRIS: He’s basing his testimony off what Agent Mellor told him.
MR. WEATHERS: Your Honor, I don’t know how I could get him to explain
why he did what he did unless he –
THE COURT: I’m going to allow him to testify to the information he received.
Let’s move along.
Q. [BY MR. WEATHERS]: Back to where we were, I think, Officer Carson,
if you would, just tell us briefly, not in great detail, but who you got a call from
and what he asked you to do.
A. [BY MR. CARSON]: I got a call from Special Agent Mellor. He asked me
to go over to 908 South Gulfport Street for a welfare concern.
Q. [BY MR. WEATHERS]: All right. Did you do that?
A. [BY MR. CARSON]: Yes, I did.
¶98. Gillett argues that the testimony stating, “He asked me to go over to 908 South
Gulfport Street for a welfare concern” is textbook hearsay and inadmissible. This Court,
however, has held that such statements are admissible “to the extent required to show why an
officer acted as he did and was at a particular place at a particular time.” Swindle v. State,
502 So. 2d 652, 657-58 (Miss. 1987). “[A] statement is not hearsay if it is offered merely to
show its effect on someone.” Thorson v. State, 895 So. 2d 85, 126. (Miss. 2004). The
53
testimony at issue was not hearsay; it merely allowed Carson to explain why he went to the
908 South Gulfport Street residence. Therefore, the trial court did not err in overruling
Gillett’s objection to inadmissable source hearsay.
XI. Whether Gillett’s convictions are unsupported by the evidence and are against the
overwhelming weight of the evidence.
¶99. Gillett’s next assignment of error is that his conviction and sentence are “contrary to
established law and decidedly against the overwhelming weight of the evidence.” He argues
that “[t]he evidence was insufficient insofar as the State failed to meet its burden of proof by
proving each element of the charged offense beyond a reasonable doubt.” For these reasons,
Gillett contends, the trial court erred in denying his motions for directed verdict, his
peremptory instructions, and his post-trial motion, which was a Motion for a New Trial, and
if Motion for New Trial is Denied, then a Motion for a New Sentencing Hearing. Gillett does
not explain why the evidence was insufficient to support his conviction and sentence, nor why
the conviction and sentence were against the overwhelming weight of the evidence.
¶100. When reviewing a claim that a conviction is against the weight of the evidence, this
Court must accept the evidence that supports the verdict as true and will reverse a trial court’s
denial of a motion for new trial only when convinced that the trial court abused its discretion
in denying the motion. Valmain v. State, 5 So. 3d 1079, 1086 (Miss. 2009). This Court will
not order a new trial unless it finds that “the verdict is so contrary to the overwhelming weight
of the evidence that to allow it to stand would sanction unconscionable injustice.” Id.
(quoting Todd v. State, 806 So. 2d 1086, 1090 (Miss. 2001)). There is a presumption that the
54
trial court’s denial of a new trial is correct; the burden is on the appellant to demonstrate
reversible error to this Court. Valmain, 5 So. 3d at 1086. The evidence should be viewed in
the light most favorable to the verdict, and “the power to grant a new trial should be invoked
only in exceptional cases in which the evidence preponderates heavily against the verdict.”
Bush v. State, 895 So. 3d 836, 844 (Miss. 2005) (citing Herring, 691 So. 2d 948, 957 (Miss.
1997), disagreed with on other grounds by Dilworth v. State, 909 So. 2d 731 (Miss. 2005) and
quoting Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)).
¶101. In analyzing the sufficiency of the evidence, this Court asks whether, “after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Moore v. State, 966
So. 2d 756, 760 (Miss. 2008) (quoting Jones v. State, 904 So. 2d 149, 153-54 (Miss. 2005)
(citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979))).
This Court must accept as true all of the evidence that is favorable to the State, including all
reasonable inferences that may be drawn therefrom. Moore, 996 So. 2d at 760. See also
Derouen v. State, 994 So. 2d 748, 751 (Miss. 2008) (“The evidence is viewed in the light
most favorable to the State and all credible evidence supporting the conviction is taken as
true.”). If the Court finds that the evidence “is of such quality and weight that, ‘having in
mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men
in the exercise of impartial judgment might reach different conclusions on every element of
the offense,’ the evidence will be deemed to have been sufficient.” Bush v. State, 895 So. 2d
836 (Miss, 2005) (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). See also
55
Derouen, 994 So. 2d at 751-52 (“Only where the evidence, as to at least one of the elements
of the crime charged, is such that a reasonable fair minded jury could only find the accused
not guilty, will this Court reverse.” (quoting Eakes v. State, 665 So. 2d 852, 351 (Miss.
1995))).
¶102. The jury determines the weight and credibility to give witness testimony and other
evidence. Massey v. State, 992 So. 2d 1161, 1163 (Miss. 2008). This Court may not “pass
upon the credibility of witnesses and, where the evidence justifies a verdict, it must be
accepted as having been found worthy of belief.” Id. (quoting Davis v. State, 568 So. 2d 277,
281 (Miss. 1990)).
¶103. Based on a review of the record in the light most favorable to the verdict – including
all the evidence discussed throughout this opinion and the inferences that can be drawn
therefrom – we conclude that 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. A rational trier of fact could have found the essential elements
of the crime of capital murder beyond a reasonable doubt. Similarly, the verdict was not so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
56
unconscionable injustice. Therefore, the trial court did not err in finding that the conviction
was based on sufficient evidence and not against the overwhelming weight of the evidence.
PENALTY PHASE
XII. Whether the trial court erred in allowing the jury instructions regarding the
Mississippi Code Section 99-19-101(5) aggravating circumstances of “avoiding arrest,”
“previous violent felony,” “especially heinous capital offense,” and “felony murder.”
¶104. Gillett argues that the jury should not have been instructed, through S-5-S and S-6-S,
to consider whether “[t]he capital offense was committed for the purpose of avoiding or
preventing a lawful arrest . . . .” Miss. Code Ann. § 99-19-101(5)(e) (Rev. 2007).
¶105. First, a trial court’s decision to allow or deny a jury instruction is reviewed for abuse
of discretion. Rubenstein, 941 So. 2d at 787. Second, this Court has held that “[i]f 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.” Leatherwood v. State, 435 So. 2d 645, 651 (Miss.
1983).
¶106. Gillett contends that there is no evidence that Gillett killed the victims to avoid arrest,
and that taking the bodies to Kansas to avoid arrest is not the same as killing to avoid arrest.
In response, the State argues that “[i]t was entirely reasonable for the jury to conclude that the
victims were murdered to conceal the identity of the killers and to avoid any investigation into
the robbery.” Based on review of the record, “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
57
tracks’ so as to avoid apprehension and eventual arrest by authorities.” Id. Therefore, the
trial court did not abuse its discretion in allowing the avoiding-arrest aggravator to be
included in instructions S-5-S and S-6-S.
¶107. Gillett next argues that the jury should not have been instructed, through S-5-S and
S-6-S, to consider whether “[t]he defendant was previously convicted . . . of a felony
involving the use or threat of violence to the person.” Miss. Code Ann. § 99-19-101(5)(b)
(Rev. 2007). Resolving this issue requires analysis of whether Gillett’s September 27, 2004,
conviction for attempted aggravated escape from custody in the District Court of Ellis County,
Kansas, under Kansas Statutes Section 21-3810, constitutes a “felony involving the use or
threat of violence to the person.” Miss. Code Ann. § 99-19-101(5)(b) (Rev. 2007). Kansas
Statutes Section 21-3810 provides:
Aggravated escape from custody is:
(a) Escaping while held in lawful custody (1) upon a charge or conviction of a
felony . . . or
(b) Escaping effected or facilitated by the use of violence or the threat of
violence against any person while held in lawful custody (1) on a charge or
conviction of any crime . . . .
Kan. Stat. Ann. § 21-3810 (Rev. 2007) (repealed 2010).17
¶108. The State submitted to the trial court a complaint (which the State explained is the
equivalent of an indictment in Mississippi) alleging the attempted aggravated escape and also
a judgment of conviction for the attempted aggravated escape, both of which the State wished
17
Kansas Statutes Section 21-3810 was repealed and replaced by 2010 Kansas Session Laws,
chapter 136, section 136(b); however, the relevant language of the repealed statute is primarily the
same as the language included in the session laws.
58
to introduce during its case-in-chief at the penalty phase to support the “previous violent
felony” aggravator. Gillett objected to use of the complaint because it contained allegations
of offenses for which Gillett had not been convicted. The trial court ruled that the complaint,
for this reason, could not be entered into evidence for review by the jury. However, the trial
court ruled that it would verbally inform the jury that Gillett had been convicted of attempted
aggravated escape from custody in Kansas.
¶109. On appeal, Gillett argues that: 1) under Hansen v. State, 592 So. 2d 114, 145 (Miss.
1991), escape does not satisfy the Section 99-19-101(5)(b) aggravator; 2) the documents the
State presented to the trial court “do not sufficiently provide a factual basis to support the
aggravating circumstance of a prior violent felony;” and 3) the State “has the burden to prove
that this conviction in Kansas would also be a proper conviction in Mississippi for a prior
violent felony.”
¶110. Gillett is correct that this Court has held that an escape conviction does not constitute
“a felony involving the use or threat of violence to the person” under Section 99-19-101(5)(b).
Hansen v. State, 592 So. 2d 114, 145 (Miss. 1991). Moreover, Kansas Statutes Section 21-
3810 provides that a person can be found guilty of aggravated escape from custody not only
when the escape is “effected or facilitated by the use of violence or threat of violence against
any person while held in lawful custody . . . ” (Kan. Stat. Ann. § 21-3810(b) (Rev. 2007)
(repealed 2010)), but also for merely “escaping while held in lawful custody (1) upon a charge
or conviction of a felony . . . .” (Kan. Stat. Ann. § 21-3810(a) (Rev. 2007) (repealed 2010)).
Even the State admits that, “[a]s the statute reads it is clear that not every escape can be
59
considered a crime of violence.” 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. Lastly, “[t]he State
has th[e] burden of proving beyond a reasonable doubt the existence of each aggravating
circumstance.” Holland v. State, 587 So. 2d 848, 874. (Miss. 1991).
¶111. The State did argue to the trial court that there is a Kansas case explaining that even
an escape that does not involve violence is violent in the sense that in “apprehending you, you
are putting people in jeopardy, both citizens and law enforcement” and “because of what can
happen, not necessarily what did happen.” The State, however, has not provided this Court
a citation to that Kansas case. Additionally, this Court has held that “[f]or a conviction to
qualify as predicate for an aggravating circumstance under this state’s statutes, the conviction
from the sister state must have been acquired under a statute which has as an element the use
or threat of violence against the person [which Kansas Statutes Section 21-3810(a) does not
necessarily have] or, by necessity, must involve conduct that is inherently violent or presents
a serious potential risk of physical violence to another.” Holland, 587 So. 2d at 874.
¶112. The State, which has not provided this Court the citation to the Kansas case that
allegedly finds all escapes to be violent, has failed to provide sufficient evidence to support
the inclusion of a “previous violent felony” jury instruction. Miss. Code Ann. § 99-19-
101(5)(b) (Rev. 2007). See Taylor v. State, 672 So. 2d 1246, 1276 (Miss. 1996) (explaining
that, in order for a jury instruction regarding an aggravating factor to be permissible, the State
must provide evidence that could substantiate the jury’s finding of that aggravating factor).
60
Therefore, the trial court erred in instructing the jury, through S-5-S and S-6-S, to consider
whether “[t]he defendant was previously convicted of . . . a felony involving the use or threat
of violence to the person.” Miss. Code Ann. § 99-19-101(5)(b) (Rev. 2007).18
¶113. However, Mississippi Code Section 99-19-105(3)(d) provides:
Should one or more of the aggravating circumstances be 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.
Miss. Code Ann. § 99-19-105(3)(d) (Rev. 2007).
¶114. The mitigating evidence presented at the sentencing hearing consisted of the following:
a pastor, a retired pastor, and one of Gillett’s fellow inmates testified that, while incarcerated,
Gillett has become a religious Christian who leads Bible studies and helps other inmates grow
as Christians; the owner of a landscaping business for whom Gillett worked for nearly a year
in 1997 or 1998 testified that Gillett was a conscientious employee who produced high-quality
work and would be a useful addition to a maintenance or landscaping crew; a man who was
friends with Gillett from about 2001 to 2003 testified regarding Gillett’s heavy drug use
during that time period; Gillett’s grandfather’s companion, who has known Gillett since he
18
This Court has held that, when determining whether a conviction under a sister state’s
statute constitutes a “felony involving the use or threat of violence to the person” under Mississippi
Code Section 99-19-101(5)(b), it must be determined whether the conviction under the sister state’s
statute would be considered a crime of violence under Mississippi law. Holland, 587 So. 2d at 874
(“[D]etermining whether a defendant’s prior conviction was a felony involving the use or threat of
violence requires that this state’s statutes be construed and applied. Where as here the conviction
occurred in a sister state, this Court does not look to how that state characterizes the question of
whether the crime was one of violence, rather, the analysis must be done under Mississippi law”).
This Court cannot without further information – and need not, given the discussion above – analyze
whether Gillett’s attempted escape would be considered a crime of violence under Mississippi law.
61
was a teenager, testified that she knew Gillett to be respectful, friendly, outgoing, and helpful
in that he had done yard work and fixed things at her and his grandfather’s house; and lastly,
Gillett’s aunt and mother testified regarding Gillett’s childhood and adult life.
¶115. According to his mother’s and aunt’s testimony, Gillett had an unstable childhood in
the sense that he and his mother moved frequently, but his mother was a loving parent who,
along with several of his extended family members, made themselves available to Gillett as
a source of support throughout his life. Gillett was a smart child who did well in school,
played some sports, and was very involved in Boy Scouts. Gillett’s father was an alcoholic
throughout Gillett’s early childhood, which resulted in his parents getting divorced and Gillett
not having the presence of a loving father in his daily life. But when his father became sober,
Gillett formed a very good relationship with him, which lasted until his father passed away
unexpectedly from a heart attack when Gillett was thirteen or fourteen years old. At the time
Gillett’s father suffered the heart attack, Gillett was living with his father, and Gillett was the
one who called for help for his father. Gillett got his GED, attended some college, and got
married, but after his wife asked for a divorce, he was devastated and started using drugs and
acting unlike the person his mother knew as her son.
¶116. We find that this 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.
62
¶117. Gillett next argues that the trial court erred in giving instruction S-4-S, regarding the
Section 99-19-101(5)(h) “especially heinous, atrocious or cruel” aggravator. Gillett contends
that the instruction is unconstitutionally vague. This Court, however, has found instructions
identical to S-4-S to be acceptable in numerous cases, including Havard v. State, 928 So. 2d
771 (Miss. 2006), in which it stated:
The trial court’s sentencing instruction S-9 defined for the jury what
constituted a heinous, atrocious, or cruel (HAC) capital offense and instructed
the jury that it may consider such, if found, an aggravating circumstance. [The
defendant] concedes in his brief to this Court that we have held this instruction
to be constitutionally sufficient. Nonetheless, [the defendant] challenges this
instruction to be constitutionally vague. The instruction read as follows:
The Court instructs the jury that in considering whether the
capital offense was especially heinous, atrocious or cruel;
heinous means extremely wicked or shockingly evil; atrocious
means outrageously wicked and vile; and cruel means designed
to inflict a high degree of pain with indifference to, or even
enjoyment of the suffering of others.
An especially heinous, atrocious or cruel capital offense is one
accompanied by such additional acts as to set the crime apart
from the norm of capital murders – the conscienceless or pitiless
crime which is unnecessarily tortuous to the victim. If you find
from the evidence beyond a reasonable doubt that the defendant
utilized a method of killing which caused serious mutilation, that
there was dismemberment of the body prior to death, that the
defendant inflicted physical or mental pain before death, or that
a lingering or tortuous death was suffered by the victim, then you
may find this aggravating circumstance.
This issue is quickly laid to rest. “This Court has repeatedly held that the
‘especially heinous, atrocious or cruel’ provision of Miss. Code Ann. § 99-19-
101(5)(h) is not so vague and overbroad as to violate the United States
Constitution.” Stevens v. State, 806 So. 2d 1031, 1060 (Miss. 2001). See also
Crawford v. State, 716 So. 2d 1028 (Miss. 1998); Mhoon v. State, 464 So. 2d
77 (Miss. 1985); Coleman v. State, 378 So. 2d 640 (Miss. 1979). Indeed [the
63
defendant] himself concedes this Court’s recognition of the constitutionality of
this instruction. Despite this concession, [the defendant] urges this Court to
find that the United States Supreme Court in Shell v. Mississippi, 498 U.S. 1,
111 S. Ct. 313, 112 L. Ed. 2d 1 (1990) held this instruction unconstitutional.
We briefly revisit what we stated a little more than a year ago with regard to
this same challenge:
[The defendant] argues that first paragraph of the above
instruction was held unconstitutional by the United States
Supreme Court in Shell v. Mississippi, 498 U.S. 1, 111 S. Ct.
313, 112 L. Ed. 2d 1 (1990). [The defendant] further contends
that in Hansen v. State, 592 So. 2d 114 (Miss. 1991), this Court
announced that the language held unconstitutional in Shell
should not be submitted to juries. Therefore, [the defendant]
concludes that Instruction SP-2 has been determined by the
United States Supreme Court and this Court to be per se
objectionable. In Shell, the Supreme Court found that when used
alone, language identical to that used in the first paragraph of
instruction SP-2 was not constitutionally sufficient. 498 U.S. at
2, 111 S. Ct. 313, 112 L. Ed. 2d 1. However, in Clemons v.
Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725(1990), the Supreme Court determined that the first sentence of
the second paragraph was a proper limiting instruction when
used in conjunction with the language from Shell. This Court
has repeatedly held this identical instruction to be constitutionally
sufficient. See Knox v. State, 805 So. 2d 527, 533 (Miss. 2002);
Puckett v. State, 737 So. 2d 322, 359-60 (Miss. 1999); Jackson
v. State, 684 So. 2d 1213, 1236-37 (Miss. 1996).
Thorson v. State, 895 So. 2d 85, 104 (Miss. 2004) [(emphasis added)]. [The
defendant] invites us to overturn firmly entrenched Mississippi precedent on
this issue. We decline to do so. For these reasons, this issue is without merit.
Havard, 928 So. 2d at 799-800. Gillett’s arguments regarding the unconstitutionality of
instruction S-4-S fail for the same reasons the arguments of the defendant in Havard failed.
As this Court has repeatedly held this exact jury instruction to be constitutionally sufficient,
we find that the trial court did not err in giving this instruction.
64
¶118. Next, Gillett argues that the trial court erred in allowing the jury to consider the “felony
murder” aggravating circumstance – i.e., the aggravating circumstance that the capital offense
took place while Gillett “was engaged, or was an accomplice, in the commission of, or an
attempt to commit, or flight after committing or attempting to commit, [a] robbery . . . .”
Miss. Code Ann. § 99-19-101(5)(d) (Rev. 2007). Gillett argues that, under Ring v. Arizona,
536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), and Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the aggravating circumstance of
“committing the offense while engaged in robbery” should not have been presented to the jury
during the penalty phase, because allegations of robbery are what led to the capital murder
conviction in the guilt phase. Gillett concedes that this Court has ruled contrary to this
argument, stating “to the extent that this Court has ruled contrary to the argument in this
Claim, these holdings should be overruled.”
¶119. This Court has held that the alleged felony underlying the capital-murder conviction
may properly be used as an aggravator. In Ross v. State, 954 So. 2d 968 (Miss. 2007), this
Court stated:
Relying primarily on Ring and Apprendi, [the defendant] maintains that
the use of the underlying felony of armed robbery as an aggravating
circumstance upon which the jury relied in returning a sentence was improper.
However, evidence of the underlying crime can properly be used both to elevate
the crime to capital murder and as an aggravating circumstance. See Bennett,
933 So. 2d at 954; Goodin v. State, 787 So. 2d 639, 654 (Miss. 2001); Smith,
729 So. 2d at 1223; Bell v. State, 725 So. 2d 836, 859 (Miss. 1998); Crawford
v. State, 717 So. 2d 1028, 1049-50 (Miss. 1998). Furthermore, the United
States Supreme Court has held that there is no constitutional error in using the
underlying felony as the aggravator. Lowenfield v. Phelps, 484 U.S. 231, 233,
108 S. Ct. 546, 98 L. Ed. 2d 568 (1988). The Supreme Court stated in Tuilaepa
65
v. California, 512 U.S. 967, 972, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994),
that “[t]he aggravating circumstances may be contained in the definition of the
crime or in a separate sentencing factor (or in both).”
The use of the underlying felony as an aggravator was not error.
Ross v. State, 954 So. 2d 968, 1014 (Miss. 2007).
¶120. Within this claim that it was improper to instruct the jury on the aggravating
circumstance of “committing the offense while engaged in robbery,” Gillett argues that he has
a constitutional right to have had the alleged aggravating circumstances included in his
indictment. This Court specifically addressed this issue in Spicer v. State, 921 So. 2d 292,
319 (Miss. 2006), in which it explained:
This Court has previously rejected the argument made by [the defendant]
[that his death penalty sentence must be vacated because the indictment failed
to include a statutory aggravating factor or the mens rea standard required for
capital murder]. See, e.g., Brown v. State, 890 So. 2d 901, 918 (Miss. 2004);
Stevens v. State, 867 So. 2d 219, 225-27 (Miss. 2003). We have held that
Apprendi and Ring address issues wholly distinct from the present one, and in
fact do not address indictments at all. Brown, 890 So. 2d at 918. The purpose
of an indictment is to furnish the defendants notice and a reasonable description
of the charges against them so that they may prepare their defense. Williams
v. State, 445 So. 2d 798, 804 (Miss. 1984). Therefore, an indictment is only
required to have a clear and concise statement of the elements of the crime the
defendant is charged with. Id. “Our death penalty statute clearly states the
only aggravating circumstances which may be relied upon by the prosecution
in seeking the ultimate punishment.” Brown, 890 So. 2d at 918. Therefore,
when [the defendant] was charged with capital murder, he was put on notice
that the death penalty may result, what aggravating factors may be used and the
mens rea standard that was required. See Stevens, 867 So. 2d at 227. We find
that [the defendant’s] ninth assertion of error is without merit.
Spicer, 921 So. 2d at 319.
66
¶121. Therefore, we find that the jury instruction regarding the aggravating circumstance of
“committing the offense while engaged in robbery” was properly given and that Gillett did
not have a right to have the alleged aggravating circumstances included in his indictment.
XIII. Whether the trial court erred in denying Gillett’s proposed jury instructions that
separately listed nonstatutory mitigating circumstances.
¶122. Gillett’s next assignment of error is 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,” namely DA-30, DA-31, DA-49, DA-50, DA-51, DA-52, DA-53, DA-54, DA-
55, DA-56, and DA-59, which separately listed nonstatutory mitigating circumstances.
¶123. While the trial court denied these nonstatutory-mitigator jury instructions, it did
provide the following “catch-all” jury instruction regarding mitigating circumstances:
Consider the following elements of mitigation in determining whether the death
penalty should not be imposed:
Any aspect of the Defendant’s character or record and any of the
circumstances of the offense that the Defendant proffers as a
basis for a sentence less than death.
¶124. This Court has held that “[s]pecific 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.” Ross v. State,
954 So. 2d 968, 1011 (Miss. 2007). The Ross v. State Court continued:
This Court has also held that “catch-all” instructions do not limit the jury’s
consideration of mitigating factors. Simmons v. State, 805 So. 2d 452, 499
(Miss. 2001). Under the list of statutory mitigating circumstances in the first
sentencing instruction, the trial court instructed the jury that they may consider:
67
Any other matter, any other aspect of the defendant’s character
or record, and any other circumstance of the offense brought to
you during the trial of this cause which you, the jury, deem to be
mitigating on behalf of the defendant.
The instruction properly informs the jury about what may be considered as
mitigation evidence. Therefore, the trial court’s refusal of [the defendant’s]
proposed instruction does not constitute error.
Id. In addition, this Court has stated that “the use of the catch-all instruction eliminates the
possibility ‘that the jury was unconstitutionally foreclosed from considering all mitigating
circumstances.’” Manning v. State, 735 So. 2d 323, 352 (Miss. 1999) (quoting Berry v. State,
703 So. 2d 269, 287 (Miss. 1997)). “A catchall instruction is sufficient to encompass non-
statutory mitigating factors.” Id. (quoting Lester v. State, 629 So. 2d 755, 799 (Miss. 1997)).
¶125. Therefore, the catch-all instruction the trial court gave was sufficient to encompass the
nonstatutory mitigating factors that Gillett argues should have been listed separately (through
inclusion of DA-30, DA-31, DA-49, DA-50, DA-51, DA-52, DA-53, DA-54, DA-55, DA-56
and DA-59). Accordingly, we find that the trial court did not err in refusing to give these
proposed instructions.
XIV. Whether the trial court erred in its acceptance or denial of various other penalty-
phase jury instructions.
¶126. Gillett’s next assignment of error is that the trial court abused its discretion in its
acceptance or denial of various other penalty-phase jury instructions. Gillett first argues that
the trial court should not have given S-1-S, which instructed:
You should consider and weigh aggravating and mitigating circumstances, as
set forth in another instruction, but you are cautioned not to be swayed by mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion or public
feeling.
68
Gillett argues that this instruction was contrary to law that holds the jury may consider
sympathy.
¶127. This Court previously has reviewed instructions similar to S-1-S and has found them
to be proper. In Howell v. State, 860 So. 2d 704 (Miss. 2003), this Court explained:
In Turner v. State, 732 So. 2d at 952, . . . [t]his Court upheld the [jury
instruction language] which stated “You should consider and weigh aggravating
and mitigating circumstances, as set forth later in this instruction, but you are
cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion, or public feeling.” Turner v. State, 732 So. 2d at
952. See also Evans v. State, 725 So. 2d 613, 690-91 (Miss. 1997); Holland
v. State, 705 So. 2d 307, 351-52 (Miss. 1997). Indeed, this Court held that a
defendant is not entitled to a sympathy or mercy instruction and allowing such
an instruction results in a jury verdict that is based on “whim and caprice.” Id.
(citing Holland v. State, 705 So. 2d 307, 351-52 (Miss. 1997)). In Turner, this
Court found that “pity”, “mercy” and “sympathy” are synonymous. Id. Case
law precedent clearly allows an instruction such as that given to the jury in this
case. Accordingly, this issue is without merit.
Howell, 860 So. 2d at 760. Therefore, the trial court did not err in giving instruction S-1-S.
¶128. Gillett also claims that the trial court erred in denying instruction DA-61, which read
“I instruct you that you may not totally disregard sympathy for Mr. Gillett in your
deliberations as to the appropriate sentence in this matter.” As this Court has noted, “a
defendant is not entitled to a sympathy or mercy instruction and allowing such an instruction
results in a jury verdict that is based on ‘whim and caprice.’” Id. See also id. at 759 (“This
Court has repeatedly held that ‘capital defendants are not entitled to a mercy instruction.’
Jordan v. State, 728 So. 2d 1088, 1099 (Miss. 1998) . . . . ‘The United States Supreme Court
has held that giving a jury instruction allowing consideration of sympathy or mercy could
69
induce a jury to base its sentencing decision upon emotion, whim, and caprice instead of upon
the evidence presented at trial.’ Id. . . . .”).19 Therefore, the trial court did not err in denying
instruction DA-61.
¶129. Gillett next argues that the trial court erred in giving instructions S-2-S and S-7-S,
contending that they were contradictory, and that S-2-S was unlawful. S-2-S read:
You are advised that just because these instructions have listed certain
mitigating circumstances you are allowed to consider, does not mean that those
or any other mitigating circumstances exist. It is only for you, the jury, to
determine which mitigating circumstances exist.
Gillett argues that instructing the jury that “It is only for you, the jury, to determine . . . ” as
opposed to instructing something like,“It is for each individual juror to determine . . . ,” makes
S-2-S an incorrect statement of the law.
¶130. Gillett argues that S-7-S is a correct statement of the law, and contradictory to S-2-S.
S-7-S stated:
The Court instructs that you, as individual jurors, must consider mitigating
circumstances. Therefore, even if all other eleven jurors find that a certain
mitigating circumstance does not exist, if you believe it does exist, you must
find that mitigating circumstance, and weigh it in your further deliberations.
After Gillett objected to S-2-S at trial and the parties discussed the instruction, the trial court
stated: “I am going to give both of them. Take them together is a correct statement of the
law.”
19
The two cases Gillett cites as authority for instruction DA-61 – Jordan v. State, 786 So.
2d 987, 1025 (Miss. 2001), and King v. State, 784 So. 2d 884, 889 (Miss. 2001) – do not suggest
that Gillett is entitled to this instruction.
70
¶131. We agree with the trial court that, given together, S-2-S and S-7-S provide a correct
statement of the law. See Brown v. State, 890 So. 2d 901, 919 (Miss. 2004) (“On review of
jury instructions, we do not isolate the individual instruction attacked, but rather we read all
of the instructions as a whole.”). Moreover, this Court has held that an instruction such as S-
2-S, which references the jury members using the phrase “you, the jury,” does not imply that
the jury must act unanimously when considering the existence of mitigating circumstances.
Evans v. State, 725 So. 2d 613, 694 (Miss. 1997).
¶132. Therefore, because S-2-S is not inconsistent with S-7-S, and moreover because S-2-S
standing alone would not be an improper instruction, the trial court did not err in giving these
two instructions.
¶133. Gillett goes on to argue that the trial court further erred in refusing his proposed
instructions (“DA-28, DA-29, DA-40 and/or DA-44” 20 ), which he argues “would have,
20
These instructions read as follows:
DA-28:
Unlike the consideration of an aggravating circumstance, there is no
unanimity requirement in consideration of mitigating circumstances.
Mitigating circumstances differ from aggravating circumstances because you
are not required to be convinced beyond a reasonable doubt that a mitigating
circumstance exists before you must take that circumstance into account as you
deliberate this case. You may consider a mitigating circumstance if you believe that
there is any evidence to support it no matter how weak you determine that evidence
to be. Each of you must decide for yourself what weight and what consideration is
to be given mitigating circumstances.
DA-29:
Because each of you must consider what is mitigating and what is not, it is
71
potentially at least, alleviated the disastrous inconsistency caused by S-2-S and S-7-S.” As
just stated, S-2-S and S-7-S are not inconsistent. Therefore, the trial court did not err in
refusing to give additional jury instructions that Gillett argues were necessary to remedy the
alleged inconsistency.
¶134. Gillett next argues that the trial court erred in denying instruction DA-13, which stated:
As the death penalty is never required, you may always find that Mr.
Gillett should be sentenced to life in prison or life without the possibility of
parole.
However, within instruction DA-37, the jury was instructed, “You, the jury, always have the
option to sentence Mr. Gillett to life imprisonment, whatsoever findings you make.” Thus,
impossible for me to list for you every possible factor that you might consider
mitigating. For that reason you should not assume anything about the weight of
aggravating circumstances versus the weight of mitigating circumstances based on
the fact that the possible aggravating circumstances are listed for you while all the
possible mitigating circumstances are not listed for you. Each of you must identify
in your own mind what mitigating circumstances you find to exist, and each of you
could have different mitigating circumstances in mind.
DA-40:
As each of you is free to consider any other matter which you may deem to
be mitigating on behalf of Mr. Gillett in reaching your sentencing decision, and as
each of you maintains the option to sentence Mr. Gillett to life imprisonment
whatever findings you may make, I instruct you as follows: you need not
unanimously determine that a death sentence is inappropriate in this matter before
you move on to consider a sentence less than death. Each one of you is allowed to
give due consideration to whatever factors you believe call for a sentence less than
death.
DA-44:
The Court instructs the jury that each of you must decide for yourself whether
death or life imprisonment without parole is the appropriate punishment for Mr.
Gillett.
72
the substance of DA-13 was fairly covered elsewhere in the jury instructions, and the trial
court did not err in denying it.
¶135. Next, Gillett argues that the trial court erred in denying his “presumption-of-life”
instructions: DA-10, DA-11, DA-19, and DA-39. This Court addressed the issue of whether
a defendant is entitled to presumption-of-life instructions in Brown v. State, where it held:
We have repeatedly said that we reject the “proposition that a defendant should
go into the sentencing phase with a presumption that life is the appropriate
punishment.” Watts v. State, 733 So. 2d 214, 241 (Miss. 1999) (internal quotes
and citation omitted); see also Jackson v. State, 684 So. 2d 1213, 1233 (Miss.
1996). We adhere to that standard today. Because the judge did not abuse his
discretion in excluding the proposed instructions, this assignment of error is
without merit.
Brown v. State, 890 So. 2d 901, 920 (Miss. 2004).
¶136. Moreover, even though Gillett was not entitled to a presumption-of-life instruction, the
trial court instructed the jury regarding this issue in instructions DA-37 and DA-65. DA-37
stated:
You may sentence Mr. Gillett to life imprisonment if you find that only one
mitigating circumstance exists and multiple aggravating circumstances exist.
You may also sentence Mr. Gillett to life imprisonment if you find that no
mitigating circumstance exists. You are not required to find any mitigating
circumstance in order to return a sentence of life imprisonment. Similarly, the
finding of an aggravating circumstance does not require that you return a
sentence of death, nor would your individual determination that aggravating
circumstances outweigh mitigating circumstances.
You, the Jury, always have the option to sentence Mr. Gillett to life
imprisonment, whatsoever findings you make.
DA-65 stated:
73
Only if all twelve of you unanimously agree beyond a reasonable doubt that
death is the appropriate punishment may you impose the sentence of death. In
the course of your deliberations, do not hesitate to re-examine your own views
and change your opinion if you are convinced it is wrong. On the other hand,
do not surrender your honest conviction as to what you feel the sentence in the
case should be just because of the opinions of your fellow jurors or just so that
you can all agree on a verdict.
Thus, it was made clear to the jury that it could choose to sentence Gillett to life imprisonment
regardless of the findings it made in the penalty phase, and the general substance of Gillett’s
proposed presumption-of-life instructions was communicated to the jury through DA-37 and
DA-65.
¶137. Therefore, the trial court did not err in refusing Gillett’s presumption-of-life jury
instructions, numbered DA-10, DA-11, DA-19, and DA-39.21
¶138. Gillett next argues that the trial court erred in denying instructions DA-66 and DA-67,
which advise the jury of the consequences of its failure to agree unanimously on a sentence.
DA-66 stated: “If you cannot, within a reasonable time, agree as to punishment, I will dismiss
you and impose a sentence of life without the benefit of parole. If you cannot agree, know
that any of you may inform the bailiff of this.” D-67 stated: “If you fail to reach a verdict as
to penalty this will have no effect on the verdict you have already returned at the guilt trial.
21
As additional reasons for excluding Gillett’s presumption-of-life instructions, the State
argues that DA-10 and DA-39 were flawed in that they were mercy instructions and contained
improper burdens of proof, and that DA-37 (which was given) was flawed in that it was a mercy
instruction. Because of the analysis above, these arguments need not be addressed. We emphasize
that we are not commenting on whether it was proper to give DA-37, as this instruction was offered
by Gillett and obviously not challenged by him.
74
If you do not reach a verdict as to penalty, Mr. Gillett will be sentenced [sic] life
imprisonment without the possibility of parole or probation.”
¶139. This Court reviewed nearly identical instructions in Edwards v. State, 737 So. 2d 275(Miss. 1999), and found that the trial court did not err in denying them. The Edwards Court
explained:
[The defendant] also assigns as error the trial court’s refusal of
Instruction D-S10 which read:
The court instructs the jury that if you do not agree upon punishment the court
will sentence the defendant to life imprisonment without possibility of parole
or early release.
He claims that this instruction correctly stated the law according to Miss. Code
Ann. § 99-19-103 [as does Gillett]. Miss. Code Ann. § 99-19-103 (1994)
provides that “[i]f the jury cannot, within a reasonable time, agree as to
punishment, the judge shall dismiss the jury and impose a sentence of
imprisonment for life.”
However, jury instructions “are not to be read unto themselves, but with
the jury charge as a whole. . . . Instructions CS-2 and CS-3 make clear the
options the jury had in returning to the courtroom:
(1) . . . we . . . unanimously find the Defendant should suffer death.
(2) We, the Jury, find that the Defendant should be sentenced to life
imprisonment without the possibility of parole or early release.
(3) We, the Jury are unable to unanimously agree on punishment.
Thus, when read as a whole, the jury instructions properly informed the jury
that it could return to the courtroom and report that it was unable to agree
unanimously on punishment. Wilcher v. State, 697 So. 2d 1123, 1136 (Miss.
1997). D-S10 was a cumulative instruction. There is no error in the denial of
a cumulative instruction. Walker v. State, 671 So. 2d at 613.
75
Moreover, even if the jury had never been instructed on what
would happen if they could not agree, there would have been no
error. In Stringer v. State, this Court held that the trial judge did
not err by failing to inform the jury that, “if they were unable to
agree within a reasonable time on the punishment to be imposed,
[the defendant] would be sentenced to life imprisonment.”
Stringer, 500 So. 2d 928, 945 (Miss. 1986).
Wilcher v. State, 697 So. 2d at 1136-37. Therefore, this assignment of error is
without merit.
Edwards, 737 So. 2d at 316-17.
¶140. In the instant case, as in Edwards, the jury was instructed (in S-5-S and S-6-S)
regarding the three potential outcomes they could reach: death, life imprisonment without
parole, or inability to agree unanimously on a punishment. Thus, read as a whole, the jury
instructions properly informed the jury that it could return to the courtroom and report an
inability to agree unanimously on a punishment. Therefore, because this Court has held that
instructions like DA-66 and DA-67 are not required and also that they are cumulative in cases
like the instant case, the trial court did not err in denying these instructions.
¶141. Gillett next argues that the trial court erred in denying instructions DA-5 and DA-63.
DA-5 stated:
You have found Mr. Gillett guilty of capital murder. You must now
decide the appropriate punishment in this case.
Before I instruct you on specific matters regarding Mr. Gillett’s
sentence, I will instruct you on the general principles that will govern your
deliberations in this sentencing phase.
In explaining your duties, I must offer as complete an explanation as
possible concerning the legal matters that must govern your deliberations. I
cannot stress to you enough that the focus of your deliberations during this
76
phase is not the same as in an ordinary case. Punishment by death is a unique
punishment. It is final. It is irrevocable. You must render a decision based on
the evidence free from anger and prejudice.
(Emphasis added.) The State objected to this instruction at trial, stating: “The instruction is
fair until you get down to the third to last line. It’s a comment that is inappropriate in a jury
instruction. It’s: Punishment by death is a unique punishment.”
¶142. In Thorson v. State, this Court reviewed an instruction nearly identical to the italicized
portion of DA-5 above, and found no error in the trial court’s denial of the instruction.
Thorson v. State, 895 So. 2d 85, 109-110 (Miss. 2004). The Thorson Court explained:
[The defendant] cites three cases to support these propositions.
Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S. Ct. 2978, 2991, 49
L. Ed. 2d 944 (1976) (“[D]eath is a punishment different from all other
sanctions in kind rather than degree.”); Gregg v. Georgia, 428 U.S. 153, 187,
96 S. Ct. 2909, 2931, 49 L. Ed. 2d 859 (1976) (“[D]eath as a punishment is
unique in its severity and irrevocability.”); Flores v. Johnson, 210 F.3d 456,
459 (5th Cir. 2000) (“Death is the most final, and most severe, of
punishments.”). While these general propositions are true, none of these cases
stands for the proposition that the jury must receive an instruction stating that
a death sentence proceeding is different from an ordinary criminal proceeding.
[The defendant] has failed to cite any relevant authority in support of this
assertion. This Court has continuously held that such failure to cite relevant
authority “obviates the appellate court’s obligation to review such issues.”
Simmons v. State, 805 So. 2d at 487 (citing Williams v. State, 708 So. 2d 1358,
1362-63 (Miss. 1998)). Therefore, this issue is not properly before the Court
and is procedurally barred from our consideration.
Thorson, 895 So. 2d at 109-10. In the instant case, to support his argument that DA-5 should
have been given, Gillett cites the same three cases the defendant in Thorson cited, as well as
Gilmore v. Taylor, 508 U.S. 333, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993). Gilmore, like
the other three cases, does not stand for the proposition that the jury must receive an
77
instruction stating that a death-sentence proceeding is different from an ordinary criminal
proceeding. See Thorson, 895 So. 2d at 109-10.
¶143. Gillett goes on to argue that, even if this Court finds that the State’s objection to a
portion of DA-5 was well-taken, this Court must then consider whether the trial court erred
in refusing the remainder of DA-5. First, regarding the final sentence of DA-5 – “You must
render a decision based on the evidence free from anger and prejudice.” – we note that S-1-S
fairly covered this by instructing, “ . . . you are cautioned not to be swayed by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Second, after the
trial court refused DA-5, Gillett did not request that the portion of DA-5 to which no specific
objection was made be given, and the trial court does not have an obligation to give
instructions sua sponte nor to give every instruction allowable in a capital case. Gray v. State,
728 So. 2d 36, 60 (Miss. 1998); Jordan v. State, 786 So. 2d 987, 1025 (Miss. 2001).
¶144. Therefore, the trial court did not err in denying DA-5.
¶145. As mentioned, Gillett also contends that the trial court erred in denying DA-63, which
stated:
If Roger Gillett is sentenced to life imprisonment without the possibility
of parole or early release then he will spend the rest of his natural life
incarcerated by the Mississippi Department of Corrections. His life sentence
without possibility of probation or parole cannot be reduced or suspended.
The court instructs the jury that if you sentence Mr. Gillett to death, he
will be executed by the State of Mississippi.
In Flowers v. State, 842 So. 2d 531 (Miss. 2003), this Court was presented with the question
of whether a jury should receive an instruction clarifying what life without parole means. The
78
Flowers Court held that, “[b]y giving only the sentencing options of death or life
imprisonment without parole, the trial judge properly gave the jury all the instructions that
were needed.” Flowers, 842 So. 2d at 556-57. Therefore, since the jury in the instant case
was informed of the sentencing options of death or life imprisonment without parole, the trial
court did not err in denying DA-63.
¶146. Next, Gillett argues that the trial court erred in denying his mercy instruction,
instruction DA-38, which stated: “The appropriateness of the exercise of mercy can itself be
a mitigating factor you may consider in determining whether the State had proved beyond a
reasonable doubt that the death penalty is warranted.” Gillett cites Kansas v. Marsh, 548 U.S.
163, 176 n.3, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006) as support for this instruction, and
argues that Gillett “was constitutionally entitled to Instruction DA-38 in light of the
instructional error briefed [above, under this section heading].”
¶147. This Court reviewed this exact instruction in Chamberlin v. State, 989 So. 2d 320(Miss. 2008), and held that the trial court did not abuse its discretion in refusing it. The
Chamberlin Court explained:
Chamberlin argues that Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516,
165 L. Ed. 2d 429 (2006), required the trial court to give a mercy instruction in
this case. However, Marsh does not speak to or even consider the issue of
whether a mercy instruction is required. Rather, the Marsh Court held that “the
States enjoy a constitutionally permissible range of discretion in imposing the
death penalty.” Marsh, 126 S. Ct. at 2525 (quoting Blystone v. Pennsylvania,
494 U.S. 299, 308, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990)) (internal
quotations omitted). “[T]he States are free to determine the manner in which
a jury may consider mitigating evidence,” i.e., whether the evidence should be
viewed through the lens of mercy. Marsh, 126 S. Ct. at 2523.
79
That discretion allows trial courts to avoid the potential arbitrariness of
an emotional decision encouraged by a mercy instruction.
This Court has repeatedly held that “capital defendants are not
entitled to a mercy instruction.” Jordan v. State, 728 So. 2d
1088, 1099 (Miss. 1998) (citing Underwood v. State, 708 So. 2d
18, 37 (Miss. 1998); Hansen v. State, 592 So. 2d 114, 150 (Miss.
1991); Williams v. State, 544 So. 2d 782, 788 (Miss. 1987);
Lester v. State, 692 So. 2d 755, 798 (Miss. 1997); Jackson v.
State, 684 So. 2d 1213, 1239 (Miss. 1996); Carr v. State, 655 So.
2d 824, 850 (Miss. 1995); Foster v. State, 639 So. 2d 1263,
1299-1301 (Miss. 1994); Jenkins v. State, 607 So. 2d 1171, 1181
(Miss. 1992); Nixon v. State, 533 So. 2d 1078, 1100 (Miss.
19870). “The United States Supreme Court has held that giving
a jury instruction allowing consideration of sympathy or mercy
could induce a jury to base its sentencing decision upon emotion,
whim, and caprice instead of upon the evidence presented at
trial.” Id. (citing Saffle v. Parks, 494 U.S. 484, 492-95, 110 S.
Ct. 1257, 1262-64, 108 L. Ed. 2d 415 (1990)).
Howell v. State, 860 So. 2d 704, 759 (Miss. 2003). . . .
Chamberlin v. State, 989 So. 2d 320, 342 (Miss. 2008). Therefore, because Marsh, the sole
case Gillett has offered as support for DA-38, does not in fact discuss whether a mercy
instruction is required, and because this Court repeatedly has held that capital defendants are
not entitled to a mercy instruction, we find that the trial court did not err in denying DA-38.
XV. Whether there was prosecutorial misconduct during the guilt and penalty phases
of the trial.
¶148. 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, “[n]otwithstanding more than two months notice of specific acts of
forensic misconduct, the State repeated seven of the specific violations announced in Mr.
80
Gillett’s notice.” Gillett then lists in his brief the seven alleged violations,22 none of which
22
The seven alleged violations, as listed by Gillett, are as follows:
1. During second-phase summation, the State offered the jury its personal opinion
that death is the appropriate sentence in this matter. See R. 1767 (“If he gets the
death penalty, I’ve done my job. Now, I don’t ask for the death penalty every time
because I believe that the death penalty ought to be reserved for special people and
special situations. And, folks, if this isn’t one of them, I’ll probably never see one.
This is a special person over there and this is a special circumstance.”). This
argument is improper as advocated in Item 2 of Mr. Gillett’s notice. See CP. 838.
This argument is also improper as it is analogous to a prosecutor arguing he
personally believes the defendant is guilty. See Item 1 of Mr. Gillett’s notice at CP.
837-38.
2. During second-phase summation, the State offered the jury its personal opinion
that “I can’t imagine a worse way to go” (R. 1764) and “I have never seen a case this
bad in my life. Never.” (R. 1765). This argument was made in direct opposition to
the facts and case authority cited in Item 3 of Mr. Gillett’s pre-trial notice. See CP.
838-40.
3. During second-phase summation, the State offered an improper “Golden Rule”
argument contending that the jury should consider the way the decedents were killed
when considering the import of mitigating evidence in the life-or-death decision. See
R. 1744-46. This argument was made in direct opposition to the facts and case
authority cited in Item 4 of Mr. Gillett’s pre-trial notice. See CP. 840-42.
4. During first-phase summation, the State improperly asked the jury to consider the
families of the decedents in their deliberations. See R. 1626 (“I ask you on behalf
of this family that’s sitting in this courtroom to give them justice and convict Roger
Gillett . . .). This argument was made in direct opposition to the facts and case
authority cited in Item 5 of Mr. Gillett’s pre-trial notice. See R. 842-44.
5. During second-phase summation, the State advised the jury it was seeking justice
on behalf of the decedents. See R. 1759, 1766. This argument was made in direct
opposition to the facts and case authority cited in Item 4 of Mr. Gillett’s pre-trial
notice. See R. 840-42.
6. During second-phase summation, the State advised the jury that returning a death
sentence “means you are doing your duty under the laws of the State of Mississippi.”
See 1746-47. This argument was made in direct opposition to the facts and case
authority cited in Item Eight of Mr. Gillett’s pre-trial notice. See CP. 846-48.
81
he objected to at trial. Gillett argues that “[t]here are instances where the failure to
contemporaneously object to a prosecutorial violation during forensic argument shall only
focus further attention on the violation and, therefore, does not foreclose appellate review of
the violation,” citing United States v. Sawyer, 347 F.2d 372, 374 (4th Cir. 1965).23 Sawyer
states:
While ordinarily, if defense counsel does not object during the course of the
Government’s closing argument he may be said to have waived the point, there
may be instances where the failure to object to a grave violation stems from the
attorney’s fear that an objection would only focus attention on an aspect of the
case unfairly prejudicial to his client. If the presiding judge perceives that trial
counsel has been placed in this dilemma, it is the judge’s duty, on his own
initiative, to interrupt, admonish the offender, and instruct the jury to disregard
the improper arguments.
Sawyer, 347 F. 2d at 374 (citations omitted).
¶149. In response, the State argues that there was no prosecutorial misconduct, but even if
there were, Gillett is procedurally barred from raising the alleged instances of prosecutorial
misconduct on appeal, because he failed to object contemporaneously at trial and also failed
7. During first-phase summation, the State advised the jury Vernon Hulett “was just
a good human being. Vernon Hulett was the type of person that was the backbone
of this country. He worked for a living. He worked for the city. Yes, he drank a
little beer. I’m guilty of that, too. But you didn’t see any drugs in his system. He’s
just a hard working innocent person.” (R. 1573). These statements are entirely
extra-record. As such, these statements, as they were in the trial of Mr. Gillett’s co-
defendant, are improper. More specifically, this argument was made in direct
opposition to the facts and case authority cited in Item Twelve of Mr. Gillett’s pre-
trial notice. See CP. 852-53.
23
We suspect that Gillett misspoke in this sentence. Gillett likely meant that there are
instances where defense counsel may choose not to object contemporaneously to a prosecutorial
violation out of fear that objecting would only focus more attention on the violation.
82
to raise these allegations in his motion for new trial. Further, the State contends that Sawyer
supports the State’s view, rather than Gillett’s, in that the Sawyer Court ultimately held (in
the paragraph directly following the quoted portion of Sawyer above):
However, we are satisfied that in this case the conduct of the prosecutor is not
open to criticism and that the reason no objection was voiced against the
Assistant United States Attorney’s argument is simply that the defense counsel
perceived no ground for objection, as we perceive none.
Id. at 374. The State argues that, “[a]s in Sawyer, there were no grounds to object to the
State’s closing arguments and Gillett therefore sat silent.”
¶150. First, this Court repeatedly has held that failure to object contemporaneously at trial
waives any claim of error on appeal. Howell v. State, 860 So. 2d 704, 756 (Miss. 2003);
Walker v. State, 671 So. 2d 581, 597 (Miss. 1995) (“This Court has repeatedly held that ‘[i]f
no contemporaneous objection is made, the error, if any, is waived. This rule’s applicability
is not diminished in a capital case.’”); Williams v. State, 684 So. 2d 1179, 1203 (Miss. 1996)
(“‘Where a defendant fails to object to a statement by the district attorney during closing
argument, a motion for mistrial after the jury has retired to consider its verdict comes too late.
. . . Put another way a contemporaneous objection to the allegedly prejudicial remarks is
required.’” (citations omitted)); Lockett v. State, 517 So. 2d 1317, 1333 (Miss. 1987) (“This
Court on numerous occasions has refused to consider the issue of prosecutorial misconduct
where the defendant did not raise it at trial and we so refuse to do so today.”). This Court has
explained the rationale for requiring contemporaneous objections:
The Supreme Court is a court of appeals, it has no original jurisdiction; it can
only try questions that have been tried and passed upon by the court from which
83
the appeal is taken. Whatever remedy appellant has is in the trial court, not in
this court. This court can only pass on the question after the trial court has done
so. . . .There are three basic considerations which underlie the rule regarding
specific objections. It avoids costly new trial. It allows the offering party an
opportunity to obviate the objection. Lastly, a trial court is not put in error
unless it had an opportunity to pass on the question. . . . In death penalty cases,
the contemporaneous objection rule is applicable.
Williams, 684 So. 2d at 1203 (internal quotations and citations omitted).
¶151. Furthermore, Gillett does not provide any support for the contention that, when each
of the seven instances of alleged prosecutorial misconduct occurred, he chose not to object
contemporaneously out of a concern that objecting would focus further attention on an aspect
of the case unfairly prejudicial to his client.
¶152. Therefore, Gillett waived the right to raise these instances of alleged prosecutorial
misconduct on appeal.
XVI. Whether the trial court erred in allowing the introduction of autopsy photographs
at the guilt and penalty phases.
¶153. Gillett’s next assignment of error is that the trial court erred in allowing autopsy
photographs into evidence during the guilt and penalty phases. In Chamberlin v. State, 989
So. 2d 320 (Miss. 2008), Chamberlin likewise objected to the admission of autopsy
photographs of Vernon Hulett and Linda Heintzelman. Chamberlin, 989 So. 2d at 339-40.
This Court, in finding that the trial court did not err in admitting the photographs, explained
the standard of review and proper analysis that applies to a trial judge’s admission of
photographs:
Admission of photographs by the trial court is reviewed for abuse of discretion.
Dampier v. State, 973 So. 2d 221, 230 (Miss. 2008). A decision favoring
84
admissibility will not be disturbed absent a clear abuse of that judicial
discretion. Id. The discretion of the trial judge is “almost unlimited . . .
regardless of the gruesomeness, repetitiveness, and the extenuation of the
probative value.” Id. (quoting Williams v. State, 544 So. 2d 782, 785 (Miss.
1987) . . . “Some probative value is the only requirement needed in order to
support a trial judge’s decision to admit photographs into evidence.” Jones v.
State, 920 So. 2d 465, 476-77 (quoting Jordan v. State, 728 So. 2d 1088, 1094
(Miss. 1998) . . . ); McIntosh v. State, 917 So. 2d 78, 84 (Miss. 2005). “So long
as a photograph has probative value and its introduction serves a meaningful
evidentiary purpose, it may still be admissible despite being gruesome, grisly,
unpleasant, or even inflammatory.” Dampier, 973 So. 2d at 230 (citations
omitted). But see McNeal v. State, 551 So. 2d 151 (Miss. 1989)) (the solitary
instance where this Court held a photograph, a close-up of the victim’s partly
decomposed skull, was gruesome and lacked an evidentiary purpose and was
more prejudicial than probative). A photograph has a meaningful evidentiary
purpose when it: (1) aids in describing the circumstances of the killing; (2)
describes the location of the body or cause of death; or (3) supplements or
clarifies witness testimony. Dampier, 973 So. 2d at 230.
Similarly, autopsy photographs are admissible only if they possess probative
value. Hodges v. State, 912 So. 2d 730, 781-82 (citing Puckett v. State, 737
So. 2d 322, 338 (Miss. 1999); Noe v. State, 616 So. 2d 298 (Miss. 1993)). The
comment to Mississippi Rule of Evidence 401 states that if there is any
probative value, the rule favors admission of the evidence. Thorson, 895 So.
2d 85, 120 (Miss. 2004).
Chamberlin, 989 So. 2d at 340.
¶154. At trial, the State qualified all of the autopsy photographs it intended to offer into
evidence as being of assistance to the pathologist, Dr. Pojman, in explaining the types of
injuries the victims suffered. The following line of questioning took place between the State
and Dr. Pojman:
BY MR. WEATHERS:
Q. Before proceeding any further, would it be a fair statement, Doctor,
to make to this jury that during the course of your examination of both Ms.
Heintzelman and Mr. Hulett that a number of photographs were taken to
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document not only what you saw and observed but also what occurred as you
proceeded with both the external and also the internal examination?
A. There were numerous photographs taken by myself and also by law
enforcement.
Q. All right. Would you have an estimate as to how many photographs
were taken, say, of Ms. Heintzelman during the course of the examination that
you’re describing today?
A. I know I took probably around one hundred plus photographs. And
then, again, law enforcement, I do not know how many they took.
Q. So quite a number there?
A. There are a large number, yes.
Q. All right. Would the same thing be true of Mr. Hulett?
A. That is correct. There’s not as many but there are still quite a few.
Q. And before coming here today, is it not true that I asked you to
simply select a few photographs that would be representative that would assist
you in explaining the injuries that you saw to the jury?
A. That is correct.
In addition, throughout the State’s questioning of Dr. Pojman, it repeatedly asked him if the
specific photo that was about to be discussed and introduced into evidence would assist him
in explaining to the jury the location, type, and number of injuries on the victims’ bodies, and
Dr. Pojman always answered in the affirmative.
¶155. The thirteen autopsy photographs to which Gillett objects on appeal are those that were
chosen by Dr. Pojman for the purpose of helping him describe to the jury the injuries the
victims suffered. A few of the photographs were introduced to show the initial state of the
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victims’ bodies as received by Dr. Pojman, and 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.
¶156. As announced in Chamberlin, “[t]he question as to each photograph is whether it: (1)
had probative value and (2) aided in described [sic] the circumstances of the killing, described
the location of the body and cause of death, or supplemented or clarified witness testimony.”
Chamberlin, 989 So. 2d at 341. Each picture at issue in the instant case satisfied these two
requirements. Further, “[i]n order to exclude any photograph, the trial court would have been
required to find as to any particular photograph that, pursuant to Mississippi Rule of Evidence
403, the probative value of such photograph was substantially outweighed by the danger of
unfair prejudice.” Id. Considering Rule 403 and the case record, we find that the trial court
did not abuse its discretion in allowing the introduction of the autopsy photos at the guilt and
penalty phases.24
XVII. Whether, in light of all Gillett’s previous claims, Gillett’s death sentence is the
product of an invalid penalty phase that violated his constitutional rights.
¶157. Gillett’s next assignment of error is that his death-penalty sentence is the product of
an invalid penalty phase. He argues that, based on the errors he has alleged regarding the
penalty phase, “the execution of Mr. Gillett would amount to nothing more than the
24
Gillett notes that he offered to stipulate to the identity of the victims and to their manner
and cause of death. However, this Court has held that “the mere fact that the defense is willing to
stipulate what the prosecution hopes to prove by admitting the photographs into evidence does not
bar their admissibility.” Simmons v. State, 805 So. 2d 452, 485 (Miss. 2001).
87
unreliable, arbitrary and capricious killing” which would be “intolerable under the Eighth and
Fourteenth Amendment as well as Article Three, Section 28 of the Mississippi Constitution.”
Gillett emphasizes that the State has the burden in the penalty phase of proving aggravating
circumstances beyond a reasonable doubt. He also points to the alleged “host of instructional
errors” committed during the penalty phase.
¶158. 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 by this Court before. In Thorson v. State, this
Court explained:
[The defendant] argues that in light of the previous issues, his sentence
of death is the end result of an invalid penalty phase. Therefore, his execution
would amount to an “arbitrary and capricious” killing in violation of the Eighth
and Fourteenth Amendments to the United States Constitution as well as Article
3, Section 28 of the Mississippi Constitution. This argument amounts to a
cumulative error argument. This Court has previously found no reversible
errors. If there is “no reversible error in any part, so there is no reversible error
to the whole.” McFee v. State, 511 So. 2d 130, 136 (Miss. 1987). See also
Caston v. State, 823 So. 2d 473, 509 (Miss. 2002); Hicks v. State, 812 So. 2d
179, 195 (Miss. 2002). Therefore, this issue is without merit.
Thorson, 895 So. 2d at 114.
¶159. As the trial court did not commit any reversible errors in the penalty phase, Gillett’s
cumulative-error argument must fail. Id. See also Doss v. State, 709 So. 2d 369, 401 (Miss.
1996).
XVIII. Whether Gillett’s death sentence is arbitrary, in violation of Mississippi Code
Section 99-19-105(3)(a).
88
¶160. Gillett’s next assignment of error is that “in light of the totality of the preceding
Claims, it is respectfully submitted it cannot seriously be contended that the execution of
Roger Gillett would be anything less than the absurd and fatal culmination of an entirely
arbitrary sentencing proceeding.”
¶161. Aside from pointing to his preceding claims generally, Gillett does not specify why he
believes his death sentence is arbitrary. He argues that “[c]ertainly, this Court has granted
relief for arbitrariness on a record which evinces erroneous factors contributing to [a] death
sentence less pervasive than the errors plain on the record at bar”; however, the cases he cites
to support this proposition – Walker v. State, 740 So. 2d 873, 890 (Miss. 1999), and Taylor
v. State, 672 So. 2d 1246, 1276 (Miss. 1996) – do not in fact support it. In Walker, in an
effort to prove the aggravating circumstance of avoiding arrest, the State presented improper
testimony regarding threats the defendant allegedly had made to witnesses and regarding the
defendant’s alleged affiliation with a gang, without proof that the defendant had made any
threats or was a member of a gang. Walker, 740 So. 2d at 890. This Court found that the
admission of the testimony was “an impermissible, arbitrary factor which the jury considered
in its imposition of the death penalty” and thus remanded the case for a new sentencing
hearing. Id. In Taylor, this Court found that the trial court erred with regard to the
aggravating-circumstances jury instructions it gave, because three of the five aggravating-
circumstances presented to the jury for consideration “lack[ed] the requisite proof or evidence
89
to support the jury’s finding of [those] aggravating factors.” 25 Taylor, 672 So. 2d at 1274,
1276.
¶162. Therefore, based on our review of the record and a finding that the cases Gillett cites
are distinguishable from the instant case, we conclude that Gillett’s sentence is not based on
any impermissible, arbitrary factors.
XIX. Whether Gillett’s death sentence is excessive and disproportionate, in violation of
Mississippi Code Section 99-19-105(3)(c).
¶163. Gillett’s next assignment of error is that “there is a great deal about the crime at bar
that makes the execution of the death sentence excessive and disproportionate; namely that
if Roger Gillett is executed, he is executed based on legally insufficient aggravation and a
finding of a statutory aggravator that, itself, is constitutionally insufficient to support a death
sentence.” Gillett also reasserts his argument that the jury was “unconstitutionally deprived
of adequate instruction concerning death-eligibility and death-selection . . . .”
¶164. Mississippi Code Section 99-19-105(3)(c) requires this Court to determine “[w]hether
the sentence of death is excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant[.]” Miss. Code Ann. § 99-19-105(3)(c) (Rev.
25
The Taylor Court explained:
The State showed only conjecture, not evidence, that a kidnapping had occurred.
Likewise, there was no evidence other than the prosecution’s argument which would
support a finding that the murder was committed for the purpose of avoiding or
preventing the detection and lawful arrest of the defendant. Finally, we are left
solely with speculation that the victim’s death was especially heinous, atrocious and
cruel.
Taylor, 672 So. 2d at 1276.
90
2007). This Court has upheld the death penalty in cases involving capital murders committed
during the commission of a robbery. See, e.g., Doss v. State, 709 So. 2d 369 (Miss. 1997);
Evans v. State, 422 So. 2d 737 (Miss. 1982). Moreover, this Court recently upheld the death
penalty of Chamberlin for committing the same crimes for which Gillett was convicted.
Chamberlin, 989 So. 2d 320 (Miss. 2008). Therefore, we find that Gillett’s death sentence
is neither excessive nor disproportionate.
XX. Whether aggregate error requires reversal of Gillett’s conviction and death
sentence as a matter of federal constitutional law.
¶165. Gillett’s next argument is that “should this Court conclude that the previous claims do
not mandate relief, in and of themselves, then . . . based on . . . federal constitutional law, Mr.
Gillett is entitled to appellate relief on the basis of cumulative error.” When the Fifth Circuit
was presented with a defendant who, like Gillett, alleged a violation of his constitutional due-
process rights by cumulative error, the Fifth Circuit explained:
In Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992), cert. denied, 508
U.S. 960, 113 S. Ct. 2928, 124 L. Ed. 2d 679 (1993), the en banc court
recognized an independent claim based on cumulative error only where “(1) the
individual errors involved matters of constitutional dimensions rather than mere
violations of state law; (2) the errors were not procedurally defaulted for habeas
purposes; and (3) the errors ‘so infected the entire trial that the resulting
conviction violates due process.’” Id., quoting Cupp v. Naughten, 414 U.S.
141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). Meritless claims or
claims that are not prejudicial cannot be cannot be cumulated, regardless of the
total number raised.
Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996).
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¶166. In reviewing Gillett’s assignments of error, we found only one error and found that
error to be harmless. Given those findings, and applying the standard set forth by the Fifth
Circuit, we find no violation of Gillett’s due-process rights based on cumulative error.
XXI. Whether Mississippi Code Section 99-19-101 is unconstitutional.
¶167. As his final assignment of error, Gillett argues that “Miss. Code Ann. 99-19-101, the
capital sentencing mechanism in the State of Mississippi, violates his Eighth and Fourteenth
Amendment rights in that the death penalty constitutes cruel and unusual punishment.”
¶168. This Court previously has addressed this issue and has found that the death penalty as
administered in Mississippi does not violate the U.S. Constitution. Bennett v. State, 990 So.
2d 155, 160-61 (Miss. 2008). Therefore, this issue is without merit.
CONCLUSION
¶169. Based on the foregoing analysis, we affirm the convictions and sentences that Gillett
received in the Circuit Court of Forrest County for the capital murders of Vernon Hulett and
Linda Heintzelman.
¶170. COUNTS I AND II: CONVICTIONS OF CAPITAL MURDER AND
SENTENCES OF DEATH BY LETHAL INJECTION, AFFIRMED.
WALLER, C.J., CARLSON, P.J., RANDOLPH AND PIERCE, JJ., CONCUR.
CHANDLER, J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION; DICKINSON, J., JOINS PART II. LAMAR J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, J.; KITCHENS, J., JOINS IN PART.
CHANDLER, JUSTICE, CONCURRING IN PART AND IN RESULT:
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¶171. I concur in part and in result with the majority opinion. I write separately to explain
my position in this case. The trial court erred by admitting the expert-witness testimony of
William Jones, the DNA Section Chief of the Mississippi Crime Laboratory, as the testing
methodology failed to comport with the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), standards. At trial, Jones testified that
the test results allegedly showed that blood on a tennis shoe recovered from the Kansas
landfill matched Linda Heintzelman’s blood. The admission of this evidence was erroneous
because it failed to meet the standards in Daubert adopted by this Court in Mississippi
Transportation Commission v. McLemore, 863 So. 2d 31 (Miss. 2003). However, even
under the heightened standard of review in death-penalty cases, this admission was harmless
error due to the overwhelming weight of the evidence presented at trial against Gillett. It is
for these reasons that I concur in part and in result with the majority opinion.
I.
¶172. The standard of review for a conviction of capital murder and sentence of death
requires heightened scrutiny. Brown v. State, 890 So. 2d 901, 907 (Miss. 2004). “While we
may apply different standards for different questions – for example, a review of the admission
of evidence – we always apply a heightened scrutiny.” Id. “Under this method of review, all
doubts are to be resolved in favor of the accused because what may be harmless error in a case
with less at stake becomes reversible error when the penalty is death.” Loden v. State, 971
So. 2d 548, 562 (Miss. 2007).
II.
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¶173. In Ross v. State, 954 So. 2d 968, 992 (Miss. 2007), this Court stated “[t]he
admissibility of evidence rests within the discretion of the trial court, and reversal is
appropriate only when a trial court commits an abuse of discretion resulting in prejudice to
the accused.” Ross, 954 So. 2d at 992. This Court will reverse where the trial court’s
discretion has been abused and a substantial right of a party has been affected. Id. at 996.
This Court is mindful that a trial court’s discretion must be exercised within the confines of
the Mississippi Rules of Evidence. Id. See Kolberg v. State, 829 So. 2d 29, 55 (Miss. 2002)
(admissibility of evidence rests within the discretion of the trial court and this Court will
reverse where the trial court has abused its discretion); Miss. R. Evid. 103(a) (“Error may not
be predicated upon a ruling which admits or excludes evidence unless a substantial right of
the party is affected . . . .”)
¶174. In McLemore, 863 So. 2d at 38, this Court analyzed the admission and exclusion of
expert testimony. This Court adopted the test as stated in Daubert, and as modified in Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), to
determine admissibility of expert-witness testimony. McLemore, 863 So. 2d at 35.
¶175. When the issue arises of whether a trial court erred by the admission or exclusion of
expert testimony, Mississippi Rule of Evidence 702 provides the framework for analysis.
Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of reliable
94
principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Miss. R. Evid. 702. Under Rule 702, expert testimony may be admitted where it is determined
to be both relevant and reliable. Ross, 954 So. 2d at 996 (citing McLemore, 863 So. 2d at 38).
Relevant testimony is that which assists the trier of fact in understanding or determining a
fact at issue. Id. Reliable testimony is when an expert's testimony is “based on the methods
and procedures of science, and not merely on subjective beliefs or unsupported speculation.”
Id. at 996-97. See Daubert, 509 U.S. at 587.
¶176. This Court also considers the Daubert factors, which are: (1) whether the theory can
be, and has been, tested; (2) whether the theory has been published or subjected to peer
review; (3) any known rate of error; and (4) the general acceptance that the theory has
garnered in the relevant expert community. Edmonds v. State, 955 So. 2d 787, 791 (Miss.
2007) (citing Daubert, 509 U.S. at 593-94).
¶177. The testimony presented at the pretrial Daubert hearing, as it related to the testing
methods used on a blood sample stored in a red-top vial, did not meet Daubert standards.
Jones’s expert testimony proved to be irrelevant and unreliable, therefore, his testimony and
consequent test results should have been excluded at trial. The blood-test results were
woefully short and were not based on reliable principles or methodologies, which in turn
undermined the relevance of the results.
¶178. Jones testified about the various types of tops for blood-sample tubes. The vast
majority of the crime lab’s testing samples have either purple or yellow tops. Purple-top tubes
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contain EDTA, a preservative. Yellow-top tubes also have a preservative in them. Red-top
tubes, in contrast, contain no preservative. This means that a blood sample collected and
stored in a red-top tube has nothing to prevent blood from clotting, from producing bacteria,
or from decomposing in the tube.
¶179. The State requested that the crime lab compare two blood samples from the victims
with blood found on a tennis shoe to determine whether there was a DNA match. Jones
testified that, although he characterized the blood samples of Heintzelman and Hulett on his
reports to be “poor” and “putrefied,” respectively, the DNA evidence on the shoe matched
Heintzelman’s blood sample.
¶180. Jones also testified about the written protocol used by the crime lab when conducting
testing. He said the crime laboratory has a written protocol for DNA testing. The protocol
has been tested in validation studies and is accepted as a reliable method of collecting, storing,
and analyzing blood samples. While the protocol does not explicitly exclude red-top-tube
testing, the protocol, according to Jones, specifically mentions that purple-top tubes are
preferred for samples. Jones stated that he did not know of a validation study that explicitly
permitted the use of red-top tubes for DNA comparisons. Jones stated that a purple-top tube
was preferred, but that he was “absolutely convinced that if you get a DNA profile from a red-
top tube, that it would be the same as from the purple-top tube of that individual.” He
provided no validation studies to support this statement.
¶181. Dr. D’Eustachio also testified at the hearing and expressed his opinion that the crime
lab (1) did not follow the testing standards contained in an FBI Quality Assurance Audit for
96
Fornesic DNA and Convicted Offender DNA Databasing, and (2) the results of the DNA
testing were not based on reliable scientific principles or methodology. He stated that
performing an analysis without a validation protocol would be similar to an “experiment.”
Likewise, the test results, in Dr. D’Eustachio’s opinion, were unreliable due to an irregularity
in the peak heights in the results. Further, even if the results were explainable with reasons
for the causes of the irregular pattern, Dr. D’Eustachio opined that a validation study needed
to be conducted. He stated:
I couldn’t see any regularity in the pattern or any other symptom that would
even let me make a good hypothesis. And even if I could make a good
hypothesis as to what might be causing this, of course one would then need to
do a validation study in which one tried to repeat those conditions and cause the
same kind of abnormal variation to occur again, then at least we would
understand what was causing it.
Dr. D’Eustachio determined that the test results were irregular and could not be interpreted
to a reasonable degree of medical certainty.
¶182. Because the DNA testing failed to follow the appropriate protocol and was not based
on any validation study for red-top tubes, the testing and, ultimately, the results failed to meet
Daubert standards. Edmonds, 955 So. 2d at 791. The DNA evidence was not collected and
tested in compliance with reliable scientific principles or methodologies.
¶183. For these reasons, the trial court erred by admitting the State’s expert testimony on its
DNA analysis.
III.
97
¶184. We must now determine whether admitting this evidence was harmless error. In
Kolberg v. State, 829 So. 2d 29, 67 (Miss. 2002), a death-penalty case, this Court stated the
basic test for harmless error as ‘the inquiry is not whether the jury considered the improper
evidence or law at all, but rather, whether the error was unimportant in relation to everything
else the jury considered on the issue in question.” Kolberg, 829 So. 2d at 67 (quoting Tanner
v. State, 764 So. 2d 385, 399-400 (Miss. 2000)).
¶185. This test for harmless error reaches back to the United States Supreme Court case
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). “The Chapman
test is whether it appears ‘beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Thomas v. State, 711 So. 2d 867, 872 (Miss. 1998).
“Nonstructural, constitutional errors in the face of ‘overwhelming evidence of guilt’ are
harmless errors.” Brown v. State, 995 So. 2d 698, 704 (Miss. 2008). In Brown, this Court
further stated:
The U.S. Supreme Court “ha[s] repeatedly recognized that the commission of
a constitutional error at trial alone does not entitle a defendant to automatic
reversal. Instead, ‘most constitutional errors can be harmless.’” Washington
v. Recuenco, 548 U.S. 212, 218, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)
(quoting Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d
35 (1999)).
Brown, 995 So. 2d at 704.
¶186. In Holland v. State, 587 So. 2d 848, 865 (Miss. 1991), this Court determined whether
the admission of a wash cloth was error in a death-penalty case. While the Court determined
that the trial court erred by admitting a wash cloth recovered from a grave because it lacked
98
connection to Holland or his home, the admission was harmless because of the overwhelming
weight of the evidence against the defendant. Id.
¶187. Like this Court’s decision in Holland, the admission of the expert-witness testimony
at Gillett’s trial was harmless error based on the overwhelming weight of the evidence.
Indeed, it is reasonable to conclude that the erroneous admission of the DNA comparison
results of the victims’ blood to the bloody tennis shoe recovered from the Kansas landfill had
little or no effect on the guilty verdict reached by the jury.
¶188. Investigation led to the recovery of seven garbage bags of items from a Kansas landfill.
Employees from the landfill stated that Gillett and a female had disposed of items on two
occasions. Personal property belonging to Hulett and Heintzelman were recovered from the
garbage bags. The recovered items included Hulett’s wallet with his driver’s license;
Heintzelman’s wallet with her driver’s license; a work shirt and pants with Hulett’s name on
them; a blood-stained crocheted pillow, later determined to match pillows from Hulett’s and
Heintzelman’s residence in Hattiesburg; and New Balance tennis shoes with blood-like stains.
¶189. In Hattiesburg, law enforcement officers discovered a shoe print with a reddish stain
at Hulett’s and Heintzelman’s residence, temporarily shared with Gillett and his girlfriend, Lisa
Chamberlin. One of the tennis shoes recovered from the Kansas landfill matched the shoe
print in Hattiesburg and was determined to be the source of the print. Simply from the
evidence recovered at the landfill, whether the blood on the tennis shoe matched Heintzelman’s
blood was inconsequential. These facts, in conjunction with all the other competent evidence
put forth, render the improper DNA evidence insignificant.
99
¶190. At trial, other overwhelming evidence was produced for the jury’s consideration. Some
of this evidence included statements from Gillett’s friends that Gillett said that he had taken
the truck, killed the owners, and the owners were in the back of the truck. Law enforcement
officers found Heintzelman’s truck and a freezer containing the victims’ bodies at the Gillett
farm. Hulett’s mother identified the freezer as belonging to the victims. Gillett’s fingerprints
were on the freezer and on the tape securing the freezer lid in a closed position. Also, the
victims’ home in Hattiesburg showed signs of foul play such as blood-like stains, ripped-out
carpeting, and a tampered safe.
¶191. Given the overwhelming evidence produced at trial, the admission of the DNA
testimony was harmless.
IV.
¶192. For the above stated reasons, I concur in part and in result with the majority opinion.
KITCHENS, JUSTICE, DISSENTING:
¶193. Though not alleged in the indictment, the State chose to proceed on the theory that
Roger Gillett committed capital murder by killing Linda Heintzelman and Vernon Hulett while
robbing Heintzelman of her Dodge pickup truck. At trial, the State failed to adduce even the
slightest evidence that the taking of the truck was in any way related to the murders. Having
failed to prove that Gillett robbed Heintzelman of her vehicle, or that the murders were
committed “during the commission of” this alleged robbery, this conviction of capital murder
should not stand. Accordingly, I respectfully dissent and would reverse Gillett’s conviction.
100
¶194. However, even if the State had proven that a robbery occurred, and that the robbery and
murders constituted a “continuous transaction” sufficient to prove capital murder, the Court
would be required to reverse the sentence of death for two additional reasons. First, the
majority correctly finds that it was error for the jury to consider a previous violent felony as
an aggravator, but concludes that the error was harmless. I respectfully disagree that such error
can be harmless, as we are an appellate court without authority to reweigh aggravating and
mitigating circumstances. That is the business of juries, not jurists. Any legislative mandate
to the contrary is an unconstitutional directive on a purely judicial prerogative.
¶195. Second, as with the robbery aggravator, the State failed to adduce any proof that Gillett
committed the murders in an effort to avoid arrest. Indeed, the State did not contend that
Gillett’s motive in killing his victims was to avoid apprehension by authorities. Therefore, it
was error to instruct the jury to consider this as an aggravating circumstance.
¶196. A death sentence based on three invalid aggravating factors should be reversed.
I.
¶197. The State attempted to prove that the murders occurred while “engaged in the
commission of” a robbery, and that the property that was the object of the robbery was
Heintzelman’s truck. Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2006). Robbery requires “(1)
felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by
that means taking and carrying away the property from his person or in his presence.” Lima
v. State, 7 So. 3d 903, 909 (Miss. 2009) (quoting Walker v. State, 913 So. 2d 198, 224 (Miss.
2005)). While it is true that “the intent to rob . . . can be shown from the facts surrounding the
101
crime,” Lima, 7 So. 3d at 909, there must be an evidentiary basis for such intent, and a jury is
not permitted to rely on mere speculation or conjecture. Brazzle v. State, 13 So. 3d 810, 818
(Miss. 2009).
¶198. Gillett argues that the State failed to meet its burden of providing such an evidentiary
basis because there was no proof that he or his codefendant had formed the intent to rob
Heintzelman of her truck before the murders took place. The majority rejects Gillett’s claim
by concluding that there was evidence that the taking of the truck and the murders were parts
of the same “continuous chain of events,” yet the facts in evidence indicate an obvious break
in the chain.
¶199. According to the State’s evidence, the murders occurred on or about March 20, 2004;
but Gillett and his codefendant, Lisa Jo Chamberlin, did not remove Heintzelman’s truck from
the residence until days later. There was uncontradicted testimony that Gillett and
Chamberlain remained in Hattiesburg for days following the murders, visiting relatives and
attending to other matters, while the truck remained in its owner’s driveway.
¶200. Hulett’s nephew, Michael Hester, testified that he visited his uncle’s home on March
20, and although Heintzelman’s truck was in the driveway, only Gillett and Chamberlin were
present. Gillett told Michael that Heintzelman and Hulett had taken a trip to the Gulf Coast.
On March 21, Michael again visited his uncle’s house, and again, Gillett and Chamberlin were
the only persons present. On this occasion, he noticed that the living room carpet was missing.
Gillett told Michael that Hulett had come into some money while on the Coast and would be
bringing new carpet back with him.
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¶201. That afternoon, Gillett and Chamberlin walked to Michael’s house, where he lived with
his grandmother, Caroline Hester. Ms. Hester was Gillett’s aunt and Hulett’s mother. While
at the Hester home, Gillett offered to sell Michael the stereo from Chamberlin’s wrecked
vehicle. Michael accepted the offer, and Gillett and Michael then moved the stereo from
Chamberlin’s car to Michael’s car. Gillett and Chamberlin ate dinner with the family before
leaving.
¶202. Two days later, on March 23, Gillett and Chamberlin returned to the Hester home.
Gillett finished installing the car stereo and played basketball with Michael while Chamberlin
took a shopping trip to Wal-Mart with Ms. Hester. Just as they had two days before, Gillett
and Chamberlin ate dinner with the family before returning to Hulett’s and Heintzelman’s
residence.
¶203. The next time anyone heard from or saw Gillett and Chamberlin was on March 26,
2004. That night, Gillett called Ms. Hester and told her that Hulett and Heintzelman had
driven him and Chamberlin to Kansas. Gillett was indeed in Kansas; however, Gillett was
driving Heintzelman’s truck, and her and Hulett’s corpses were in a freezer in the back of the
truck. On March 26, Gillett met two of his friends at a gas station in Victoria, Kansas, and told
one of them that “he had taken the pickup and the owners were in the back of it.” Gillett then
asked whether he could store the truck at his friend’s house and said that “he needed help to
get rid of [it] . . . because there was [sic] two bodies in the back.”
¶204. These facts do not support a conviction of capital murder on the theory that Gillett
murdered Heintzelman and Hulett while robbing Heintzelman of her truck. Multiple activities
103
and events, disconnected from and unrelated to the homicides, transpired over a period of
several days before the defendants departed the victims’ residence in Heintzelman’s pickup
truck. The State has proven absolutely no connection between the killing of the two victims
and the theft of the vehicle. Therefore, it cannot be said that the defendants took the vehicle
from the presence or person of Heintzelman or Hulett as part of a “continuous chain of events.”
The State may have proven that Gillett and Chamberlin killed two people. The State also may
have proven that these defendants stole a truck that belonged to one of these decedents, a crime
commonly known as auto theft. Miss. Code Ann. § 97-17-42 (Rev. 2006). What the State has
not proven is that they killed anyone while “engaged in the commission of . . . robbery.” Miss.
Code Ann. § 97-3-19(2)(e).
¶205. One of the first cases to address this issue was Pickle v. State, 345 So. 2d 623 (Miss.
1977). Pickle was convicted of capital murder for killing during the commission of a rape. Id.
The victim was found nude from the waist down, and forensic evidence revealed that she had
been raped before being shot in the chest. Id. at 625. On appeal, Pickle argued that to sustain
a conviction for capital murder, the State was required to prove that the victim’s death occurred
during the rape. Id. This Court looked to outside authorities, including a general discussion
from the legal encyclopedia American Jurisprudence, and held that “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.” Id. at 627.
¶206. As the majority notes in footnote 13 of today’s opinion, the Pickle decision included
language from American Jurisprudence that “[t]he felony-murder doctrine does not apply,
104
however, when the determination to steal property of the victim is not formed until after the
homicide.” Id. at 626 (quoting 40 Am. Jur. 2d Homicide § 73 (1968)). The majority then
states that the Pickle court was not adopting the law as defined by American Jurisprudence.
While the particular sentence in question was dictum, this Court did rely on American
Jurisprudence in formulating its ultimate holding. Moreover, this Court has since adopted
similar language from that very block quote and has held that “the underlying crime begins
where an indictable attempt is reached.” Goff v. State, 14 So. 3d 625, 650 (Miss. 2009)
(quoting Pickle, 345 So. 2d at 626 (quoting 40 Am. Jur. 2d Homicide § 73). See also, e.g.,
Moody v. State, 841 So. 2d 1067, 1091 (Miss. 2003) (quoting same); Simmons v. State, 805
So. 2d 452, 477 (Miss. 2001) (quoting same); Duplantis v. State, 708 So. 2d 1327, 1342 (Miss.
1998) (quoting same).
¶207. Attempt to commit a crime requires an intent to commit the crime. Brooks v. State, 18
So. 3d 833, 841 (Miss. 2009) (citing Hughes v. State, 983 So. 2d 270 (Miss. 2008); Miss.
Code Ann. § 97-1-7 (Rev. 2006)). Therefore, if “the underlying crime begins where an
indictable attempt is reached,” the underlying crime cannot have begun until criminal intent
is formed. Goff, 14 So. 3d at 650. In other words, “[t]he felony-murder doctrine does not
apply . . . when the determination to steal property of the victim is not formed until after the
homicide.” Pickle, 345 So. 2d at 626 (quoting 40 Am. Jur. 2d Homicide § 73, at 366-67).26
26
The current version of American Jurisprudence does not contain the language that
“the felony-murder doctrine does not apply, however, when the determination to steal
property of the victim is not formed until after the homicide.” 40 Am. Jur. 2d Homicide §39
(2008). Interestingly, however, the encyclopedia relies on this Court’s holding in Pickle for
105
Here, obviously, a significant period of time passed between the homicides and the theft of the
vehicle.
¶208. This Court has addressed the issue of intent in several cases involving capital murders
based on killings committed during the commission of robbery. Consistently, this Court has
held that a jury reasonably could infer that intent to rob existed at the time of the murders only
when the killing and the taking of the property occurred simultaneously, or when the acts
occurred within mere moments of each other. See, e.g., Lima, 7 So. 3d at 909 (defendant took
property from the victim’s pockets as he lay dying); Shaw v. State, 915 So. 2d 442, 449 (Miss.
2005) (defendant robbed the victim “immediately after” shooting him); Walker v. State, 913
So. 2d 198, 212, 223 (Miss. 2005) (defendant took the victim’s car immediately after the
killing, and defendant confessed that his intent was to rob the victim); Knox v. State, 805 So.
2d 527, 530-32 (Miss. 2002) (defendant was found carrying victim’s keys the same day she
was murdered); Simmons, 805 So. 2d at 470, 477-78 (Miss. 1999) (immediately after shooting
victim, defendant took victim’s companion’s clothes and jewelry); Duplantis, 708 So. 2d at
1341 (defendant took the victim’s property “immediately following” the victim’s death); West
v. State, 463 So. 2d 1048, 1050-51, 1055 (Miss. 1985) (killing occurred while defendant and
his accomplice were robbing victim of his vehicle, although the vehicle was not taken until
victim was dead).
the proposition that “[g]enerally, to sustain a conviction of murder in the first degree under
a felony-murder statute, it must be shown that there is a direct causal relationship between
the homicide and the commission of the other felony.” Id. (citing Pickle, 345 So. 2d 623).
106
¶209. In the instant case, there was a clear break between the killings and the taking of the
truck. Hulett and Heintzelman were killed on March 20, 2004, but Gillett and Chamberlin
remained in Hattiesburg for days afterward. While Heintzelman’s truck remained in her
driveway, Gillett and Chamberlin visited relatives, went shopping, played basketball, installed
a car stereo, and had several meals. There was no evidence that Gillett or Chamberlin took
possession of the truck until they fled Hattiesburg on or shortly before March 26. Unlike the
cases cited above, the time between the killing and the taking of the property was significant,
and it cannot be said that “the intervening time between the time of the murder and the time
of taking of the property formed a continuous chain of events.” West, 463 So. 2d at 1055
(Miss. 1985). Therefore, the State failed to prove capital murder, and Gillett’s conviction
should be reversed.
II.
¶210. Even if the State had met its burden of proof in the guilt phase of the trial, reversal of
the death sentence still would be required. The majority correctly finds that the jury should
not have been allowed to consider that Gillett previously had committed a violent felony, but
finds such error harmless. I respectfully cannot agree, for in the face of even a single invalid
aggravating circumstance, this Court does not have the authority to determine that the penalty
of death is appropriate.27
27
I join Justice Lamar’s separate opinion in part, only to the extent that she would
reverse Gillett’s death sentence.
107
¶211. Although the legislature has “instructed” this Court to perform a reweighing or
harmless-error analysis upon finding an invalid aggravator, such a mandate is an
unconstitutional infringement on judicial prerogatives. See Miss. Const. art. 1, §§ 1, 2
(providing for separation of governmental powers); Miss. Const. art. 6, § 144 (“The judicial
power of the State shall be vested in a Supreme Court and such other courts as are provided
in this Constitution.”); Miss. Const. art. 6, § 146 (“The Supreme Court shall have such
jurisdiction as properly belongs to a court of appeals . . . .”).28 See also, e.g., Long v.
McKinney, 897 So. 2d 160, 183 (Miss. 2004) (“[T]his Court has been charged with the
responsibility, and granted the authority, over all things judicial within this state.”); Newell v.
State, 308 So. 2d 71, 76 (Miss. 1975) (“[The Mississippi constitution] leaves no room for a
division of authority between the judiciary and the legislature as to the power to promulgate
rules necessary to accomplish the judiciary’s constitutional purpose.”). Only a unanimous jury
may impose a sentence of death, and it must do so in writing, specifying that sufficient
aggravating circumstances exist and that these are not outweighed by any mitigating
28
In 1994, following this Court’s announcement in Clemons v. State, 593 So. 2d 1004(Miss. 1992), that it was without statutory authority to reweigh aggravating and mitigating
circumstances, Mississippi Code Section 99-19-105 was amended to provide:
Should one or more of the aggravating circumstances be 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.
Miss. Code Ann. § 99-19-105(3)(d).
108
circumstances. Miss. Code Ann. § 99-19-101(3) (Rev. 2007). Such power is properly left in
the hands of a jury before whom the case is tried, and not an appellate court.
¶212. The constitutionality of Mississippi Code Section 99-19-105(3)(d) notwithstanding,
reversal is required because the State failed to adduce sufficient proof of three of the four
aggravating circumstances considered by the jury. First, as discussed above, there was no
proof – only argument – that the killings were committed during the commission of a robbery.
Miss. Code Ann. § 99-19-101(5)(d). Second, as the majority recognizes, there was no proof
that Gillett previously had committed a violent felony. Miss. Code Ann. § 99-19-101(5)(b).
Third and finally, nothing in the record supports a finding that Gillett and Chamberlin
committed the murders “for the purpose of avoiding or preventing a lawful arrest or effecting
an escape from custody.” Miss. Code Ann. § 99-19-101(5)(e).
¶213. At the sentencing hearing, the State did not present any new evidence beyond what had
been adduced during the guilt phase. In opening and closing arguments, the prosecutor made
absolutely no assertion that Heintzelman and Hulett were killed so that Gillett and Chamberlin
might avoid apprehension. The State argues on appeal that it was reasonable to conclude that
the victims were murdered “to avoid any investigation into the robbery.” This would require
a finding that Gillett and Chamberlin first robbed the couple and then killed them in order to
eliminate witnesses to the robbery. But, as discussed previously, there is zero evidence that
Gillett and Chamberlin took anything belonging to the victims before March 26, nearly a week
after their deaths.
109
¶214. The majority relies on Leatherwood v. State, 435 So. 2d 645, 651 (Miss. 1983), for the
proposition that “it may be reasonably inferred that a substantial reason for 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.” However, in the Leatherwood case, there was testimony
that the defendant and his accomplices planned to “leave no witnesses.” Id.
¶215. In the instant case, there was no similar evidence. To the contrary, the only evidence
of Gillett’s motive was that he was angry at Heintzelman and Hulett due to their involvement
in an automobile accident. Because the State failed to adduce even a scintilla of evidence that
Gillett and Chamberlin had been killed to avoid arrest, it was error to submit this aggravator
to the jury. Taylor v. State, 672 So. 2d 1246, 1275-76 (Miss. 1996).
III.
¶216. For purposes of capital murder, “in the commission of” requires, at minimum, some
temporal relationship between one of the enumerated felonies and the killing. Unlike any other
case this Court has reviewed, the State presented no evidence that Gillett or his codefendant
had formed an intent to take the property at issue at the time of the killings. To the contrary,
the uncontradicted evidence indicates that Gillett and Chamberlin killed their victims days
before taking possession of the truck. Thus, the jury could only speculate regarding the
defendants’ criminal intent at the time of the killings, and speculation alone will not support
a verdict.
¶217. As for the death sentence, it too fails appellate review. In cases involving the death
penalty, heightened scrutiny requires reversal on even one invalid aggravator, and any
110
legislative mandate to the contrary is an unconstitutional encroachment on judicial authority.
Yet, in the instant case, three of the four aggravating circumstances were impermissibly
presented to the jury. Therefore, even if there were sufficient evidence to support a conviction
for capital murder, the sentence would have to be reversed.
¶218. For these reasons, I respectfully dissent.
DICKINSON, J., JOINS PART II OF THIS OPINION.
LAMAR, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶219. The majority finds that the trial court erred in allowing the jury to consider the
“previous violent felony” aggravator, but finds such error to be harmless. (Maj. Op. at ¶108).
I respectfully disagree. The majority fails to consider the United States Supreme Court case
of Brown v. Sanders 29 in which the Court ruled that “[i]f the presence of the invalid sentencing
factor allowed the sentencer to consider evidence that would not otherwise have been before
it, due process would mandate reversal[.]” In this case, the majority correctly finds that the
jury considered an invalid aggravating factor. But this error was not harmless because the
evidence in support of the invalid aggravating factor – the fact that Gillett had been convicted
of attempted aggravated escape from custody in Kansas – is evidence that otherwise would not
have been before the jury. I would affirm Gillett’s conviction of capital murder, but would
reverse Gillett’s sentence of death and remand for a new sentencing hearing.
DICKINSON, J., JOINS THIS OPINION. KITCHENS, J., JOINS THIS
OPINION IN PART.
29
546 U.S. 212, 220-21, 126 S. Ct. 884, 163 L. Ed. 2d 723 (2006).
111
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
Goff v. State, 14 So. 3d 625 (Miss. 2009).
Wilson v. State, 21 So. 3d 572 (Miss. 2009).
Chamberlin v. State, 989 So. 2d 320 (Miss. 2008).
Loden v. State, 971 So. 2d 548 (Miss. 2007).
King v. State, 960 So. 2d 413 (Miss. 2007).
Bennett v. State, 933 So. 2d 930 (Miss. 2006).
Havard v. State, 928 So. 2d 771 (Miss. 2006).
Spicer v. State, 921 So. 2d 292 (Miss. 2006).
Hodges v. State, 912 So. 2d 730 (Miss. 2005).
Walker v. State, 913 So. 2d 198 (Miss. 2005).
Le v. State, 913 So. 2d 913 (Miss. 2005).
Brown v. State, 890 So. 2d 901 (Miss. 2004).
Powers v. State 883 So. 2d 20 (Miss. 2004)
Branch v. State, 882 So. 2d 36 (Miss. 2004).
Scott v. State, 878 So. 2d 933 (Miss. 2004).
Lynch v. State, 877 So. 2d 1254 (Miss. 2004).
Dycus v. State, 875 So. 2d 140 (Miss. 2004).
i
Byrom v. State, 863 So. 2d 836 (Miss. 2003).
Howell v. State, 860 So. 2d 704 (Miss. 2003).
Howard v. State, 853 So. 2d 781 (Miss. 2003).
Walker v. State, 815 So. 2d 1209 (Miss. 2002). *following remand.
Bishop v. State, 812 So. 2d 934 (Miss. 2002).
Stevens v. State, 806 So. 2d 1031 (Miss. 2002).
Grayson v. State, 806 So. 2d 241 (Miss. 2002).
Knox v. State, 805 So. 2d 527 (Miss. 2002).
Simmons v. State, 805 So. 2d 452 (Miss. 2002).
Berry v. State, 802 So. 2d 1033 (Miss. 2001).
Snow v. State, 800 So. 2d 472 (Miss. 2001).
Mitchell v. State, 792 So. 2d 192 (Miss. 2001).
Puckett v. State, 788 So. 2d 752 (Miss. 2001). * following remand.
Goodin v. State, 787 So. 2d 639 (Miss. 2001).
Jordan v. State, 786 So. 2d 987 (Miss. 2001).
Manning v. State, 765 So. 2d 516 (Miss. 2000). *following remand.
Eskridge v. State, 765 So. 2d 508 (Miss. 2000).
McGilberry v. State, 741 So. 2d 894 (Miss. 1999).
Puckett v. State, 737 So. 2d 322 (Miss. 1999). *remanded for Batson hearing.
Manning v. State, 735 So. 2d 323 (Miss. 1999). *remanded for Batson hearing.
ii
Hughes v. State, 735 So. 2d 238 (Miss. 1999).
Turner v. State, 732 So. 2d 937 (Miss. 1999).
Smith v. State, 729 So. 2d 1191 (Miss. 1998).
Burns v. State, 729 So. 2d 203 (Miss. 1998).
Jordan v. State, 728 So. 2d 1088 (Miss. 1998).
Gray v. State, 728 So. 2d 36 (Miss. 1998).
Manning v. State, 726 So. 2d 1152 (Miss. 1998).
Woodward v. State, 726 So. 2d 524 (Miss. 1997).
Bell v. State, 725 So. 2d 836 (Miss. 1998).
Evans v. State, 725 So. 2d 613 (Miss. 1997).
Brewer v. State, 725 So. 2d 106 (Miss. 1998).
Crawford v. State, 716 So. 2d 1028 (Miss. 1998).
Doss v. State, 709 So. 2d 369 (Miss. 1996).
Underwood v. State, 708 So. 2d 18 (Miss. 1998).
Holland v. State, 705 So. 2d 307 (Miss. 1997).
Wells v. State, 698 So. 2d 497 (Miss. 1997).
Wilcher v. State, 697 So. 2d 1087 (Miss. 1997).
Wiley v. State, 691 So. 2d 959 (Miss. 1997).
Brown v. State, 690 So. 2d 276 (Miss. 1996).
Simon v. State, 688 So. 2d 791 (Miss.1997).
iii
Jackson v. State, 684 So. 2d 1213 (Miss. 1996).
Williams v. State, 684 So. 2d 1179 (Miss. 1996).
Davis v. State, 684 So. 2d 643 (Miss. 1996).
Taylor v. State, 682 So. 2d. 359 (Miss. 1996).
Brown v. State, 682 So. 2d 340 (Miss. 1996).
Blue v. State, 674 So. 2d 1184 (Miss. 1996).
Holly v. State, 671 So. 2d 32 (Miss. 1996).
Walker v. State, 671 So. 2d 581 (Miss. 1995).
Russell v. State, 670 So. 2d 816 (Miss. 1995).
Ballenger v. State, 667 So. 2d 1242 (Miss. 1995).
Davis v. State, 660 So. 2d 1228 (Miss. 1995).
Carr v. State, 655 So. 2d 824 (Miss. 1995).
Mack v. State, 650 So. 2d 1289 (Miss. 1994).
Chase v. State, 645 So. 2d 829 (Miss. 1994).
Foster v. State, 639 So. 2d 1263 (Miss. 1994).
Conner v. State, 632 So. 2d 1239 (Miss. 1993).
Hansen v. State, 592 So. 2d 114 (Miss. 1991).
*Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1 (1990)
reversing, in part, and remanding, Shell v. State, 595 So. 2d 1323 (Miss. 1992) remanding for
new sentencing hearing.
Davis v. State, 551 So. 2d 165 (Miss. 1989).
iv
Minnick v. State, 551 So. 2d 77 (Miss. 1989).
*Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075(1990) vacating and remanding Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding for
new sentencing hearing.
*Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738(1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding
for new sentencing hearing.
Woodward v. State, 533 So. 2d 418 (Miss. 1988).
Nixon v. State, 533 So. 2d 1078 (Miss. 1987).
Cole v. State, 525 So. 2d 365 (Miss. 1987).
Lockett v. State, 517 So. 2d 1346 (Miss. 1987).
Lockett v. State, 517 So. 2d 1317 (Miss. 1987).
Faraga v. State, 514 So. 2d 295 (Miss. 1987).
*Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230(1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for
new sentencing hearing.
Wiley v. State, 484 So. 2d 339 (Miss. 1986).
Johnson v. State, 477 So. 2d 196 (Miss. 1985).
Gray v. State, 472 So. 2d 409 (Miss. 1985).
Cabello v. State, 471 So. 2d 332 (Miss. 1985).
Jordan v. State, 464 So. 2d 475 (Miss. 1985).
Wilcher v. State, 455 So. 2d 727 (Miss. 1984).
Billiot v. State, 454 So. 2d 445 (Miss. 1984).
Stringer v. State, 454 So. 2d 468 (Miss. 1984).
v
Dufour v. State, 453 So. 2d 337 (Miss. 1984).
Neal v. State, 451 So. 2d 743 (Miss. 1984).
Booker v. State, 449 So. 2d 209 (Miss. 1984).
Wilcher v. State, 448 So. 2d 927 (Miss. 1984).
Caldwell v. State, 443 So. 2d 806 (Miss. 1983).
Irving v. State, 441 So. 2d 846 (Miss. 1983).
Tokman v. State, 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).
Hill v. State, 432 So. 2d 427 (Miss. 1983).
Pruett v. State, 431 So. 2d 1101 (Miss. 1983).
Gilliard v. State, 428 So. 2d 576 (Miss. 1983).
Evans v. State, 422 So. 2d 737 (Miss. 1982).
King v. State, 421 So. 2d 1009 (Miss. 1982).
Wheat v. State, 420 So. 2d 229 (Miss. 1982).
Smith v. State, 419 So. 2d 563 (Miss. 1982).
Johnson v. State, 416 So. 2d 383 (Miss.1982).
Edwards v. State, 413 So. 2d 1007 (Miss. 1982).
Bullock v. State, 391 So. 2d 601 (Miss. 1980).
Reddix v. State, 381 So. 2d 999 (Miss. 1980).
Jones v. State, 381 So. 2d 983 (Miss. 1980).
Culberson v. State, 379 So. 2d 499 (Miss. 1979).
vi
Gray v. State, 375 So. 2d 994 (Miss. 1979).
Jordan v. State, 365 So. 2d 1198 (Miss. 1978).
Voyles v. State, 362 So. 2d 1236 (Miss. 1978).
Irving v. State, 361 So. 2d 1360 (Miss. 1978).
Washington v. State, 361 So. 2d 6l (Miss. 1978).
Bell v. State, 360 So. 2d 1206 (Miss. 1978).
*Case was originally affirmed in this Court but on remand from U. S. Supreme Court,
case was remanded by this Court for a new sentencing hearing.
vii
DEATH CASES REVERSED AS TO GUILT PHASE
AND SENTENCE PHASE
Ross v. State, 954 So. 2d 968 (Miss. 2007).
Flowers v. State, 947 So. 2d 910 (Miss. 2006).
Flowers v. State, 842 So. 2d 531 (Miss. 2003).
Randall v. State, 806 So. 2d 185 (Miss. 2002).
Flowers v. State, 773 So. 2d 309 (Miss. 2000).
Edwards v. State, 737 So. 2d 275 (Miss. 1999).
Smith v. State, 733 So. 2d 793 (Miss. 1999).
Porter v. State, 732 So. 2d 899 (Miss. 1999).
Kolberg v. State, 704 So. 2d 1307 (Miss. 1997).
Snelson v. State, 704 So. 2d 452 (Miss. 1997).
Fusilier v. State, 702 So. 2d 388 (Miss. 1997).
Howard v. State, 701 So. 2d 274 (Miss. 1997).
Lester v. State, 692 So. 2d 755 (Miss. 1997).
Hunter v. State, 684 So. 2d 625 (Miss. 1996).
Lanier v. State, 684 So. 2d 93 (Miss. 1996).
Giles v. State, 650 So. 2d 846 (Miss. 1995).
Duplantis v. State, 644 So. 2d 1235 (Miss. 1994).
Harrison v. State, 635 So. 2d 894 (Miss. 1994).
Butler v. State, 608 So. 2d 314 (Miss. 1992).
viii
Jenkins v. State, 607 So. 2d 1171 (Miss. 1992).
Abram v. State, 606 So. 2d 1015 (Miss. 1992).
Balfour v. State, 598 So. 2d 731 (Miss. 1992).
Griffin v. State, 557 So. 2d 542 (Miss. 1990).
Bevill v. State, 556 So. 2d 699 (Miss. 1990).
West v. State, 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State, 548 So. 2d 389 (Miss. 1989).
Mease v. State, 539 So. 2d 1324 (Miss. 1989).
Houston v. State, 531 So. 2d 598 (Miss. 1988).
West v. State, 519 So. 2d 418 (Miss. 1988).
Davis v. State, 512 So. 2d 129l (Miss. 1987).
Williamson v. State, 512 So. 2d 868 (Miss. 1987).
Foster v. State, 508 So. 2d 1111 (Miss. 1987).
Smith v. State, 499 So. 2d 750 (Miss. 1986).
West v. State, 485 So. 2d 681 (Miss. 1985).
Fisher v. State, 481 So. 2d 203 (Miss. 1985).
Johnson v. State, 476 So. 2d 1195 (Miss. 1985).
Fuselier v. State, 468 So. 2d 45 (Miss. 1985).
West v. State, 463 So. 2d 1048 (Miss. 1985).
Jones v. State, 461 So. 2d 686 (Miss. 1984).
ix
Moffett v. State, 456 So. 2d 714 (Miss. 1984).
Lanier v. State, 450 So. 2d 69 (Miss. 1984).
Laney v. State, 421 So. 2d 1216 (Miss. 1982).
x
DEATH CASES REVERSED
AS TO PUNISHMENT AND REMANDED
FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State, 547 So. 2d 792 (Miss. 1989).
Wheeler v. State, 536 So. 2d 1341 (Miss. 1988).
White v. State, 532 So. 2d 1207 (Miss. 1988).
Bullock v. State, 525 So. 2d 764 (Miss. 1987).
Edwards v. State, 441 So. 2d 84 (Miss. l983).
Dycus v. State, 440 So. 2d 246 (Miss. 1983).
Coleman v. State, 378 So. 2d 640 (Miss. 1979).
xi
DEATH CASES REVERSED AS TO
PUNISHMENT AND REMANDED FOR A NEW TRIAL
ON SENTENCING PHASE ONLY
Rubenstein v. State, 941 So. 2d 735 (Miss. 2006).
King v. State, 784 So. 2d 884 (Miss. 2001).
Walker v. State, 740 So. 2d 873 (Miss. 1999).
Watts v. State, 733 So. 2d 214 (Miss. 1999).
West v. State, 725 So. 2d 872 (Miss. 1998).
Smith v. State, 724 So. 2d 280 (Miss. 1998).
Berry v. State, 703 So. 2d 269 (Miss. 1997).
Booker v. State, 699 So. 2d 132 (Miss. 1997).
Taylor v. State, 672 So. 2d 1246 (Miss. 1996).
*Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1 (1990)
reversing, in part, and remanding, Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding for
new sentencing hearing.
*Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075(1990) vacating and remanding, Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding
for new sentencing hearing.
*Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738(1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding
for new sentencing hearing.
*Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230(1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for
new sentencing hearing.
Russell v. State, 607 So. 2d 1107 (Miss. 1992).
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Holland v. State, 587 So. 2d 848 (Miss. 1991).
Willie v. State, 585 So. 2d 660 (Miss. 1991).
Ladner v. State, 584 So. 2d 743 (Miss. 1991).
Mackbee v. State, 575 So. 2d 16 (Miss. 1990).
Berry v. State, 575 So. 2d 1 (Miss. 1990).
Turner v. State, 573 So. 2d 657 (Miss. 1990).
State v. Tokman, 564 So. 2d 1339 (Miss. 1990).
Johnson v. State, 547 So. 2d 59 (Miss. 1989).
Williams v. State, 544 So. 2d 782 (Miss. 1989); sentence aff'd 684 So. 2d 1179 (1996).
Lanier v. State, 533 So. 2d 473 (Miss. 1988).
Stringer v. State, 500 So. 2d 928 (Miss. 1986).
Pinkton v. State, 481 So. 2d 306 (Miss. 1985).
Mhoon v. State, 464 So. 2d 77 (Miss. 1985).
Cannaday v. State, 455 So. 2d 713 (Miss. 1984).
Wiley v. State, 449 So. 2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State, 484
So. 2d 339 (Miss. 1986), cert. denied Wiley v. Mississippi, 479 U.S. 1036 (1988); resentencing
ordered, Wiley v. State, 635 So. 2d 802 (Miss. 1993) following writ of habeas corpus issued
pursuant to Wiley v. Puckett, 969 So. 2d 86, 105-106 (5 th Cir. 1992); resentencing affirmed,
Wiley v. State, 95-DP-00149, February 13, 1997 (rehearing pending).
Williams v. State, 445 So. 2d 798 (Miss. 1984). *Case was originally affirmed in this
Court but on remand from U. S. Supreme Court, case was remanded by this Court for a new
sentencing hearing.
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