Jerrard T. Cook v. State of Mississippi , 242 So. 3d 865 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00687-COA
JERRARD T. COOK A/K/A JERRAD T. COOK APPELLANT
A/K/A JERRARD COOK A/K/A JERRARD
TRAMAINE COOK A/K/A J-FAT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/01/2016
TRIAL JUDGE: HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 08/08/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
WILSON, J., FOR THE COURT:
¶1. Jerrard Cook shot and killed Marvin Durr during a robbery. Durr was eighteen years
old at the time of his death. Cook was seventeen years old at the time of the offense. Cook’s
accomplice, Cearic Barnes, was eighteen years old. Cook shot Durr in the head while Durr
was seated in the driver’s seat of his car. He shot Durr because he and Barnes wanted to use
Durr’s car to commit a robbery. However, Cook and Barnes were unable to remove Durr’s
body from the car, so Cook sat on top of Durr’s body and drove the car to an isolated
location. To destroy evidence, Barnes then set fire to the car.
¶2. Cook was arrested, confessed, and pled guilty to capital murder, and the circuit court
imposed a mandatory sentence of life imprisonment. Cook’s conviction for capital murder
rendered him ineligible for parole. Miss. Code Ann. § 47-7-3(1)(f) (Rev. 2015).1 Several
years later, in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the United States Supreme
Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” The Court held that the sentencer
must have the “discretion” to “consider mitigating circumstances” before a sentence of life
without the possibility of parole (LWOP) may be imposed in cases in which the defendant
was under the age of eighteen at the time of the offense. Id. at 2475.
¶3. The circuit court appointed counsel to represent Cook and held a new sentencing
hearing to consider the factors discussed in Miller. After considering the testimony and other
evidence presented, the judge found that Cook was not entitled to parole eligibility under
Miller. On appeal, Cook argues (1) that the circuit court erred by not granting him parole
eligibility, (2) that he should have been resentenced by a jury rather than a judge, and (3) that
a sentence of LWOP is unconstitutional in all cases in which the offender is under the age
of eighteen at the time of the offense. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶4. On the evening of June 18, 2002, Cook, Barnes, and Eric Williams were walking
1
Barnes later pled guilty to murder and is also serving a life sentence. See Barnes
v. State, 51 So. 3d 986, 988 (¶2) (Miss. Ct. App. 2010), cert. denied, 50 So. 3d 1003 (Miss.
2011). He is also ineligible for parole.
2
together in Brookhaven. Cook had a gun, which he had obtained when he broke into his
uncle’s house a few days earlier. Cook and Barnes wanted some money. Cook later said he
needed money to get his car fixed and could not find a job. So the three young men decided
to rob a convenience store. Cook and Barnes planned to go into the store and commit the
robbery, while Williams would remain outside as the lookout. Cook and Barnes had masks
to wear during the robbery. However, the first store they planned to rob was closed. They
planned to rob a second store, but Cook decided there were too many customers present.
Eventually, Williams went home, leaving Cook and Barnes.
¶5. Cook and Barnes then decided that they would flag down a car and ask for a ride,
carjack the car, and drive to McComb to rob a store. Cook and Barnes wanted to rob a store
in McComb because they thought that they were less likely to be recognized there. The first
car that Cook flagged down turned out to be a police car. Cook and Barnes spoke briefly to
the police officer, and the officer drove on without incident.
¶6. Durr, who was Barnes’s cousin, was driving the next car that Cook flagged down.
Cook and Barnes asked Durr to give them a ride to Cook’s aunt’s house, and Durr agreed.
Cook and Barnes gave Durr incorrect directions and caused him to miss the turn to Cook’s
aunt’s house. They then told Durr that he could let them out along South Washington Street
in Brookhaven. Cook and Barnes exited the car, and as Durr turned around on South
Washington Street, Cook flagged him down again and walked up to the driver’s side window
to speak. Cook then shot Durr in the left temple from a distance of an inch or two. Cook
3
later told law enforcement that Durr “was just at the wrong place at the wrong time.” Cook
also said that Durr “was like the weak type,” and he could have taken the car from Durr
“without using a gun.” Nonetheless, Cook shot Durr in the head.
¶7. Cook and Barnes then attempted to pull Durr’s body from the car, but they were
unable to do so. So Cook sat on top of Durr’s body and drove the car to a bridge. It was
Cook’s idea to “[d]ump [Durr’s] body under the bridge” because he knew there were
“alligators” under the bridge. However, again, Cook and Barnes were unable to remove
Durr’s body from the car. Cook then went through Durr’s pockets but did not find much
money. Using a lighter, Barnes then set fire to the car to destroy evidence. Cook later told
investigators that he thought that Durr was still alive when they set the car on fire. Cook
stated that as he was sitting on top of Durr, he felt Durr “move” and just “had a feeling he
wasn’t dead.” Nonetheless, Barnes set the car on fire, and then he and Cook fled into the
woods. Cook discarded his gun in the woods, and Barnes later burned their clothes in order
to destroy evidence.
¶8. Cook and Barnes were indicted for capital murder. Cook pled guilty to capital murder
and was sentenced to life imprisonment. His conviction makes him ineligible for parole. See
Miss. Code Ann. § 47-7-3(1)(f). Barnes later pled guilty to murder, was sentenced to life
imprisonment, and is also ineligible for parole. See Barnes v. State, 51 So. 3d 986, 988 (¶2)
(Miss. Ct. App. 2010).
¶9. In 2012, the United States Supreme Court held “that the Eighth Amendment forbids
4
a sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” Miller, 132 S. Ct. at 2469. The Court held that the sentencer must have the
“discretion” to “consider mitigating circumstances” before a sentence of LWOP may be
imposed. Id. at 2475. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court
clarified or expanded Miller’s holding. There, the Court stated that a sentence of LWOP is
valid only for “those rare children whose crimes reflect irreparable corruption.” Id. at 734.
According to the Court, the Eighth Amendment mandates parole eligibility for juvenile
murderers “whose crimes reflected only transient immaturity.” Id. at 736. Also, in Parker
v. State, 119 So. 3d 987, 995-99 (¶¶18-28) (Miss. 2013), our Supreme Court summarized the
factors to be considered and procedure to be followed in cases in which Miller requires a new
sentencing hearing.
¶10. Post-Miller, Cook filed a motion to be resentenced and granted parole eligibility
pursuant to Miller. The circuit court appointed counsel to represent Cook and appointed Dr.
Criss Lott, Ph.D., to conduct a mental evaluation of Cook. The court denied Cook’s motion
to have a jury determine whether he should be parole eligible.
¶11. On March 30, 2016, the circuit court held a hearing to determine whether Cook should
be declared parole eligible pursuant to Miller. The State called the former district attorney,
Brookhaven Chief of Police Bobby Bell, and Durr’s father, Reverend Jerry Durr. The former
district attorney testified about the murder and its investigation. Chief Bell testified that he
mentored Cook when Cook was about thirteen years old; however, he lost touch with Cook
5
thereafter. Reverend Durr testified that Cook attended youth events at his church until he
was about twelve years old and that Cook generally was a respectful child; however, like
Chief Bell, Reverend Durr had not been around Cook for several years prior to the murder.
¶12. The parties also stipulated to the admission of a number of exhibits, including
transcripts of recorded statements that Cook, Barnes, and Williams gave to law enforcement;
Cook’s school records and prison records; and Dr. Lott’s report. Cook’s prison records show
that he has been the subject of twenty-nine rule violation reports (RVRs) during his
incarceration, including for assaulting a corrections officer, threatening a corrections officer,
possessing a shank, using and possessing marijuana, and possessing a cell phone. Cook’s
school records show that he attended Oakley Training School (now known as Oakley Youth
Development Center) from October 2001 to March 2002. Cook told Dr. Lott that the youth
court sent him to Oakley because two friends asked him to drive them to a store, the friends
robbed the store, and he was arrested for conspiracy to commit armed robbery.
¶13. Cook’s cousin Angela Daniels testified on his behalf. She testified that Cook had no
relationship with his father and was raised by his mother and grandmother. Daniels
described Cook as a “typical child,” “always . . . smiling.” She testified that Cook started to
get into trouble as a teenager, and she became concerned that he was smoking marijuana and
skipping school. Daniels believed that Cook had “matured a lot” since 2002.
¶14. Reverend Bruce Smith testified that Cook attended his church as a child. Reverend
Smith remembered Cook as “always joking and jovial.” Reverend Smith also testified that
6
Cook seemed immature for his age at seventeen. Reverend Smith believed that Cook had
matured since the murder; however, he had only visited Cook twice in prison.
¶15. Cook’s mother, Sharon, testified that Cook did not have a relationship with his father,
who went to prison soon after Cook was born. Sharon testified that when Cook was younger,
she used drugs and went out to clubs and frequently worked two jobs. As a result, Cook’s
grandmother played a significant role in raising him, and they were very close. Cook was
devastated when his grandmother passed away when he was twelve years old. Although
Sharon was gone a lot, she testified that she always provided for Cook. Cook always had
clothes and food, and she “[b]ought him anything he wanted,” including a car. There was
no evidence or suggestion that Cook was abused or neglected as a child.
¶16. Sharon testified that Cook’s crime was “out of his character.” She thought that he
“didn’t understand the consequences” of his actions. To illustrate, Sharon testified that Cook
was doing pushups when she visited him in jail after the murder. Sharon thought this showed
that Cook believed that he would be getting out of jail soon. Sharon testified that Cook had
changed and was more mature than he was in 2002. She also thought that he was remorseful.
¶17. Cook’s fiancee, Vera Quarles, testified that she knew Cook for several years prior to
the murder and was “shocked” or “surprised” when she heard about it. She did not believe
that Cook understood the consequences of his actions because she went to visit him in jail
before he pled guilty, and he asked her on a date, as if he thought he would be released soon.
Quarles and Cook did not date prior to the murder, but they reconnected in 2014 and later
7
became engaged. Quarles thought that Cook was more mature than he was in 2002.
¶18. Dr. Lott testified as an expert witness in clinical and forensic psychology. Dr. Lott
performed a mental evaluation of Cook, with particular attention to the factors discussed in
Miller. Dr. Lott testified that Cook was cooperative during their interview. He described
Cook as having average to low-average intelligence. He noted that Cook had been an
average student and probably could have done better in school. Dr. Lott testified that he
“didn’t see anything with [Cook’s] case that . . . indicated that he was well outside the
adolescent norm.” Dr. Lott also testified that “the first years of [Cook’s] life appear to [have
been] fairly normal” despite his father’s absence and his mother’s drug use. With respect to
issues of maturity, Dr. Lott testified that it appeared that Cook was a “normal, typical”
seventeen year old at the time of the offense.
¶19. Dr. Lott opined that the murder appeared to have been committed in a way that “was
almost haphazard.” Dr. Lott testified that studies have shown that ninety to ninety-five
percent of violent juvenile offenders “do not reoffend” as adults. Dr. Lott had not seen “any
data . . . to suggest” that Cook was the sort of “rare” offender who warranted a sentence of
LWOP under Miller. However, Dr. Lott said that was just “[his] impression” and that he
could not “state it with certainty.” Dr. Lott testified that psychologists “can’t distinguish
between those [offenders] who commit an offense at sixteen, seventeen, and what they’re
going to be like at [twenty-seven] or [thirty-seven].” He acknowledged that “[n]o one can
do that with any degree of certainty”—no “mental health professional has a crystal ball and
8
can determine what somebody will be like in [twenty] years.”2
¶20. On April 1, 2016, the circuit court entered an order denying Cook’s request for parole
eligibility. The court addressed the factors discussed in Miller and Parker and found that
there were no mitigating circumstances that mandated parole eligibility. Cook filed a timely
motion for reconsideration, which was denied, and a timely notice of appeal.
DISCUSSION
¶21. On appeal, Cook, through appointed counsel from the Indigent Appeals Division of
the Office of State Public Defender, argues (1) that he should be declared eligible for parole
under Miller and Parker, (2) that he was entitled to a jury determination of his sentence, and
(3) that the Eighth Amendment to the United States Constitution and Article 3, Section 28
of the Mississippi Constitution categorically prohibit a sentence of LWOP when the offender
was under the age of eighteen at the time of the offense. We address these issues in turn.
I. The circuit judge did not abuse his discretion by declining to declare
Cook parole eligible.
¶22. In Miller, the United States Supreme Court stated, “[W]e think appropriate occasions
for sentencing juveniles to [LWOP] will be uncommon.” Miller, 132 S. Ct. at 2469. The
Court said that this sentence would only be appropriate for “the rare juvenile offender whose
crime reflects irreparable corruption.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 573
(2005)). Cook argues that the circuit judge erred by declining to grant him parole eligibility
2
Cook also subpoenaed Steven Pickett, the chairman of the State Parole Board, to
testify at the hearing. However, Pickett had no personal knowledge of Cook’s case.
9
because he is not such an “uncommon” or “rare” offender.
¶23. As this Court has held on two prior occasions, we review a circuit judge’s sentencing
decision under Miller only for an abuse of discretion. Hudspeth v. State, 179 So. 3d 1226,
1228 (¶12) (Miss. Ct. App. 2015); Davis v. State, 2016-CA-00638-COA, 2017 WL 2782015,
at*2 (¶8) (Miss. Ct. App. June 27, 2017). Cook argues that we should apply “heightened
scrutiny,” as in a death penalty case. See, e.g., Byrom v. State, 863 So. 2d 836, 846 (¶9)
(Miss. 2003). Neither this Court nor the Mississippi Supreme Court has ever held that
appeals from Miller hearings are subject to “heightened scrutiny,” and we decline to do so
now. Moreover, even in a capital case, it does not appear that any sort of “heightened
scrutiny” or de novo review is applied to the circuit judge’s or jury’s ultimate finding that the
death penalty is the appropriate sentence.3
¶24. This Court is in no position to conduct a de novo, appellate resentencing of the
offender. Nor would it be appropriate for us to substitute our own collective view of an
appropriate sentence for the considered judgment of the circuit judge, who listened to and
3
See Byrom, 863 So. 2d at 881-83 (¶¶164-71) (affirming sentence of death because
“sufficient evidence existed to support the finding” of an aggravating factor, “the trial judge
clearly considered all the mitigating circumstances,” and the sentence was not “imposed
under the influence of passion, prejudice or any other arbitrary factor” and was “not
disproportionate”); Bishop v. State, 812 So. 2d 934, 948 (¶45) (Miss. 2002) (“When the
sufficiency of the evidence [of facts necessary to support the death penalty] is challenged,
we must view the evidence and all reasonable inferences which may be drawn therefrom in
the light most consistent with the verdict. We have no authority to disturb the verdict short
of a conclusion that no rational trier of fact could have found the fact at issue beyond a
reasonable doubt.”).
10
observed the demeanor of the witnesses at sentencing and the offender himself, looked the
offender in the eye, and imposed what he adjudged to be a just sentence. Rather, our
standard of review is abuse of discretion, as it is in other appeals in which a sentence is
alleged to be excessive. See, e.g., Reynolds v. State, 585 So. 2d 753, 756 (Miss. 1991);
Carter v. State, 450 So. 2d 67, 69 (Miss. 1984); May v. State, 435 So. 2d 1181, 1184 (Miss.
1983).
¶25. Cook next argues that the circuit judge failed to “acknowledge” that Miller and
Montgomery have established a “presumption against” a sentence of LWOP in all cases in
which the offender was under the age of eighteen at the time of the offense. In support of
this argument, Cook relies on the Connecticut Supreme Court’s opinion in State v. Riley, 110
A.3d 1205, 1214 (Conn. 2015). But see id. at 1222 (Espinosa, J., dissenting) (rejecting the
suggestion that Miller established such a “presumption”). However, our own Supreme Court
has indicated that no such presumption exists. In Jones v. State, 122 So. 3d 698, 702 (¶14)
(Miss. 2013), our Supreme Court stated that a sentence of LWOP remains appropriate for
“juveniles who fail to convince the sentencing authority that Miller considerations are
sufficient to prohibit its [imposition].” (Emphasis added). Thus, Jones places the burden on
the offender to persuade the judge that he is entitled to relief under Miller. We are bound to
follow the decision of the Mississippi Supreme Court in Jones.
¶26. We now consider whether the circuit judge abused his discretion by finding that Cook
was not eligible for parole under Miller. We begin by acknowledging that the United States
11
Supreme Court has given the sentencing judge in a Miller case a difficult, if not impossible,
task. According to the Supreme Court, the judge is supposed to determine whether the
offender’s “crimes reflected only transient immaturity” or instead “reflect irreparable
corruption.” Montgomery, 136 S. Ct. at 736 (emphasis added). Apparently, there are only
two possibilities: either the murder reflects only youthful immaturity, or else the offender is
irreparably corrupt. We note that there probably are few murders that “reflect[] only transient
immaturity” and nothing else, a description that seems to effectively absolve the offender of
culpability. We also note that the United States Supreme Court has never defined
“irreparable corruption,” a term that sounds more like a theological concept than a rule of law
to be applied by an earthly judge.
¶27. With these observations, Miller and our Supreme Court’s decision in Parker do
identify some factors that the judge is supposed to consider in reaching a sentencing decision.
Thus, the judge in a Miller case is bound to consider and apply these factors in a non-
arbitrary fashion. If the offender persuades the judge that the Miller factors preponderate in
favor of parole eligibility, then the judge must declare the offender parole eligible. Parker,
119 So. 3d at 999 (¶28).4 If, however, the judge determines that Miller does not mandate
parole eligibility, then the judge must deny relief because the Legislature has provided by law
4
As we recently stated, Miller “obviously ‘is binding on the tribunals and citizens of
the respective states in comparable cases.’” Mason v. State, 2015-CP-00523-COA, 2017
WL 2335516, at *3 n.2 (Miss. Ct. App. May 30, 2017) (quoting Bolton v. City of Greenville,
178 So. 2d 667, 672 (Miss. 1965)).
12
that persons convicted of murder are not eligible for parole. See Miss. Code Ann. § 47-7-
3(1)(f); Stromas v. State, 618 So. 2d 116, 123 (Miss. 1993) (“It is the [L]egislature’s
prerogative, and not this Court’s, to set the length of sentences.”).
¶28. In Parker, our Supreme Court made clear that “Miller does not prohibit sentences of
life without parole for juvenile offenders. Rather, it ‘requires the sentencing authority to take
into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.’” Parker, 119 So. 3d at 995 (¶19)
(quoting Miller, 132 S. Ct. at 2469). As the Parker Court explained, Miller “identified
several factors” that the “sentencing authority” must consider before sentencing a juvenile
offender to LWOP:
Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents
taking into account the family and home environment that surrounds him—and
from which he cannot usually extricate himself—no matter how brutal or
dysfunctional. It neglects the circumstances of the homicide offense, including
the extent of his participation in the conduct and the way familial and peer
pressures may have affected him. Indeed, it ignores that he might have been
charged and convicted of a lesser offense if not for incompetencies associated
with youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys. . . . And finally, this mandatory punishment disregards the
possibility of rehabilitation even when the circumstances most suggest it.
Id. at 995-96 (¶19) (quoting Miller, 132 S. Ct. at 2468).
¶29. The circuit judge addressed these factors in his order denying relief. As to
chronological age, the judge noted that Cook was seventeen years and two months old when
13
he murdered Durr. The judge reasoned that Cook “was sufficiently close to his eighteenth
birthday that this factor should not weigh against the imposition of a sentence of [LWOP].”
In addition, we note that Barnes was only one year older than Cook, and although he did not
pull the trigger, he also received an effective sentence of LWOP.
¶30. As to maturity or immaturity, the judge noted that the evidence did not show that
Cook “was especially immature for his age.” Dr. Lott testified that Cook was of average
intelligence and well within the normal range of maturity for a seventeen year old.
¶31. As to impetuosity, the judge found that there was “no evidence of impetuosity in this
case.” Rather, “the plan to take the victim’s vehicle was just that, a plan.” The judge also
found that “[t]he crime was premeditated” and that Cook stole the gun from his uncle “for
the purpose which he accomplished.” The judge’s findings are supported by substantial
evidence. We also note that Cook and Barnes were presented with repeated opportunities
to abandon their plans: The first store they planned to rob was closed, and there were too
many customers at the second store. Cook then flagged down a car to rob, but it turned out
to be a police car. That was no deterrent. Cook simply flagged down the next driver, which
turned out to be Barnes’s cousin. Even after Durr gave them a ride and Cook and Barnes
exited the car without incident, Cook decided to shoot Durr in the head and take his car.
After the crime was committed, Cook and Barnes went to great lengths to try to cover their
tracks and destroy evidence. The circuit judge did not abuse his discretion by finding that
this factor did not weigh in favor of parole eligibility under Miller.
14
¶32. The court next found “that there ha[d] been little, if any, proof of [Cook’s] failure to
appreciate risks and/or consequences of his actions.” The court did not find it significant that
Cook was doing pushups in his jail cell when his mother came to visit him. The court also
noted that Cook’s and Barnes’s efforts to cover their tracks suggested an awareness of the
consequences. There is substantial evidence to support the circuit judge’s finding that this
factor did not weigh in favor of parole eligibility under Miller.
¶33. With respect to Cook’s “family and home environment,” the judge acknowledged that
Cook grew up in a broken, single-parent home because of his father’s imprisonment and that
Cook’s mother struggled with drugs. However, the judge also noted that Cook’s “mother
took care of him in spite of her battles with drug addiction.” The judge found that Cook
“always had decent clothing as well as computer games, a go cart and later an automobile.”
There was no suggestion or evidence that Cook was ever abused or neglected. Also, Chief
Bell was willing to serve as a mentor to Cook. The court found that although Cook “did not
enjoy an ideal childhood,” this factor did not indicate that he should be granted parole
eligibility. This was not an abuse of discretion. Cook’s family and home environment was
not a mitigating factor comparable to the backgrounds of the fourteen-year-old offenders
discussed in Miller, 132 S. Ct. at 2468-69.
¶34. The circuit judge next found that the “circumstances of the homicide offense,”
including the extent of Cook’s participation and any familial or peer pressures, did not weigh
in favor of parole eligibility. As the judge noted, there is no question that Cook pulled the
15
trigger, and there was no pressure from his family to commit a crime. While Dr. Lott
suggested that there might have been peer pressure, there was no evidence that Barnes or
anyone else pressured Cook into murdering Durr. The judge reasoned that, if anything,
Cook, Barnes, and Williams all encouraged one another in their violent, criminal plans. We
find no abuse of discretion in this aspect of the circuit judge’s decision. As discussed above,
Cook admitted that he shot Durr in the head because he wanted to use Durr’s car to commit
an armed robbery, and Cook then went to great lengths to destroy the evidence.
¶35. Finally, the judge considered the “possibility of rehabilitation.” The judge discussed
Cook’s numerous RVRs while incarcerated and did “not find any significant possibility of
rehabilitation.” There was no abuse of discretion in this finding. As discussed above, Dr.
Lott testified only that it was his “impression” that he had not seen “any data . . . to suggest”
that Cook was the type of allegedly “rare” juvenile offender who will commit additional
violent crimes as an adult. However, Dr. Lott conceded that he could not make that
prediction “with any degree of certainty.” He also acknowledged that psychologists really
“can’t distinguish between” offenders who will reoffend and those who will not. At the end
of the hearing in the circuit court, Cook spoke very briefly “in allocution.” Although he
“ask[ed] for forgiveness from the Durr family,” he did not provide any additional testimony
or evidence to demonstrate that rehabilitation was likely.
¶36. In addition to the circuit judge’s findings, we note that there is no evidence to suggest
that the crime should have been charged as a lesser offense. Cook was clearly guilty of the
16
capital offense to which he pled. See Miller, 132 S. Ct. at 2468 (suggesting consideration
of whether the offender “might have been charged and convicted of a lesser offense”). Also,
from the standpoint that proportionality in sentencing is desirable, we again note that Barnes
was only one year older than Cook, and although he did not pull the trigger, he also received
an effective sentence of LWOP.
¶37. Our standard of review is abuse of discretion. The circuit judge in this case discussed
and applied the correct legal standard, i.e., the relevant factors outlined in Miller and Parker.
In addition, the judge’s findings and reasoning are supported by substantial evidence and are
not arbitrary or capricious. Even in sentencing a juvenile offender, a judge should consider
that retribution and deterrence are proper purposes of sentencing. See Taggart v. State, 957
So. 2d 981, 994 (¶31) (Miss. 2007). On the facts of this case, we cannot say that the judge
abused his discretion by declining to declare Cook eligible for parole.
II. Cook was not entitled to be resentenced by a jury.
¶38. Cook next argues that he has a “constitutional right to have his sentence determined
by a jury.” He reasons that he is entitled to parole eligibility unless the sentencer finds that
his offense reflects “irreparable corruption.” Montgomery, 136 S. Ct. at 734. And he relies
on the principle that, “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Cook argues that, when read in conjunction with the Apprendi line of cases, Miller and
17
Montgomery establish a constitutional right to jury resentencing. We disagree.
¶39. The Miller and Montgomery opinions refute Cook’s argument. Miller held that “a
judge or jury must have the opportunity to consider mitigating circumstances before
imposing” the sentence of LWOP in the case of a juvenile offender. Miller, 132 S. Ct. at
2475 (emphasis added). And in Montgomery, the Court stated, “Miller requires that before
sentencing a juvenile to [LWOP], the sentencing judge [must] take into account” certain
potentially mitigating factors. Montgomery, 136 S. Ct. at 733 (emphasis added). Moreover,
in Montgomery, the Court specifically stated that “Miller did not require trial courts to make
a finding of fact regarding a child’s incorrigibility” and that “Miller did not impose a formal
factfinding requirement.” Id. at 735.
¶40. It may be that “irreparable corruption” is not considered an objective, provable “fact”
for purposes of Apprendi. Or it may be that Apprendi does not apply because “irreparable
corruption” is something that a defendant must disprove in order to mitigate his punishment,
rather than something the State must prove in order to increase the penalty. Whatever the
reason, unless the United States Supreme Court’s opinions in Miller and Montgomery do not
mean what they specifically say—that a judge may sentence the offender to LWOP—Cook
does not have a constitutional right to be resentenced by a jury.
¶41. In support of his argument, Cook also cites an unpublished order entered by a panel
of the Mississippi Supreme Court. Dycus v. State, 2012-M-02041 (Sept. 17, 2014). Dycus
was convicted and sentenced to death following a jury trial. He was later resentenced to
18
LWOP after the United States Supreme Court prohibited the imposition of the death penalty
on offenders who were under the age of eighteen when their crimes were committed. See
Roper, 543 U.S. at 578. Post-Miller, Dycus filed a motion in the Mississippi Supreme Court
again requesting resentencing. In a two-page order, a three-justice panel ordered a “new
sentencing hearing before a jury under [Mississippi Code Annotated] section 99-19-101,” the
general statute governing sentencing and the imposition of the death penalty in capital cases.
The Dycus order provides no further explanation as to why the hearing was to be “before a
jury” rather than a judge alone.
¶42. We do not believe that the unpublished order in Dycus is controlling or applicable to
this case. To begin with, the unpublished panel order has no precedential value. Westbrook
v. City of Jackson, 665 So. 2d 833, 837 n.2 (Miss. 1995); see also Miss. Transp. Comm’n ex
rel. Moore v. Allday, 726 So. 2d 563, 566-67 (¶13) (Miss. 1998) (McRae, J., dissenting)
(“[O]ur unpublished orders and opinions are of no precedential value[.]”).
¶43. In addition, Dycus is distinguishable in that Dycus originally was convicted and
sentenced by a jury, which was perhaps a reason that he should be resentenced by a jury. In
contrast, Cook pled guilty. When he pled guilty, Cook waived his right to a jury trial and
confirmed that he understood that he would be sentenced by the judge. He did so in writing
and under oath. Section 99-19-101(1) (Rev. 2015) provides that a sentencing proceeding in
a capital case “may be conducted before the trial judge sitting without a jury if both the State
. . . and the defendant agree thereto in writing.”
19
¶44. Finally, section 99-19-101 does not grant Cook a right to a jury in a “Miller hearing.”
A Miller hearing is a specialized proceeding that is required solely because the United States
Supreme Court’s decision in Miller decreed it. It is a judicial invention. In such a
proceeding, the sentencer is supposed to consider the offender’s age, characteristics
sometimes associated with youth, the offender’s family and home environment, the
possibility of rehabilitation, and the facts and circumstances of the crime. See generally
Parker, 119 So. 3d at 995-96 (¶19) (quoting Miller, 132 S. Ct. at 2468). The hearing
required by section 99-19-101, in contrast, is a statutory procedure established by the
Legislature in the exercise of its authority to set sentences for criminal offenses. See
Stromas, 618 So. 2d at 123. The statute identifies certain aggravating circumstances and
mitigating circumstances for the jury to consider. The statutory factors overlap with the
Miller factors, but they are not the same. On its face, section 99-19-101 does not apply to
Miller hearings. Absent some further direction from the Legislature, we see no reason to
interpret section 99-19-101 to require juries in Miller hearings.
III. Cook’s sentence is not unconstitutional.
¶45. Finally, Cook urges this Court to hold that the United States Constitution and the
Mississippi Constitution “categorically prohibit imposing [LWOP] sentences on juveniles.”
However, the United States Supreme Court has declined to announce such a categorical rule.
Miller, 132 S. Ct. at 2463. The Mississippi Supreme Court has also recognized that “Miller
does not prohibit sentences of [LWOP] for juvenile offenders.” Parker, 119 So. 3d at 995
20
(¶19). Rather, a defendant sentenced to life imprisonment is ineligible for parole unless he
“convince[s] the sentencing authority that Miller considerations” require parole eligibility.
Jones, 122 So. 3d at 702 (¶14). Moreover, the Legislature has effectively mandated a
minimum sentence of LWOP for the offense of capital murder. “It is the [L]egislature’s
prerogative, and not this Court’s, to set the length of sentences.” Stromas, 618 So. 2d at 123.
“Declaring a sentence violative of the Eighth Amendment to the U.S. Constitution carries a
heavy burden and only in rare cases should this Court make such a finding.” Id. We decline
to hold that a defendant convicted of capital murder has an absolute constitutional right to
be considered for parole.
CONCLUSION
¶46. The circuit judge did not abuse his discretion or otherwise err in declining to declare
Cook parole eligible. Cook’s sentence does not violate the United States Constitution or the
Mississippi Constitution. Therefore, we affirm.
¶47. AFFIRMED.
LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ.,
CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J.,
CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.
21