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Simmons v. State1/29/2004
DATE OF JUDGMENT: 09/02/1997
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - POST CONVICTION RELIEF
DISPOSITION: MOTION FOR LEAVE TO SEEK POST-CONVICTION RELIEF DENIED - 01/29/2004
EN BANC.
. Gary Carl Simmons, Jr., was convicted of capital murder and sentenced to death for the murder of Jeffery Wolfe. Simmons was also convicted of the rape and kidnaping of Wolfe's female companion. On direct appeal Simmons raised twenty-seven issues. This Court found those issues to be without merit and affirmed Simmons's conviction and death sentence. See Simmons v. State , 805 So.2d 452 (Miss. 2001), cert. denied, 537 U.S. 833, 123 S. Ct. 142, 154 L.Ed. 2d 51 (2002).
. Simmons subsequently filed his Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, Supplement/Amendment to Petition for Post-Conviction Relief, Correction to Supplement/Amendment, and Supplemental Authority with this Court. The State has filed its Response, and Simmons has filed his Reply Brief.
. Simmons's Petition for Post-Conviction Relief raises the following issues:
I. PETITIONER WAS UNFAIRLY DENIED BY THE TRIAL COURT OF HIS RIGHT TO PRESENT TO THE TRIAL JURY A VIDEOTAPE HE HAD MADE WITHIN HOURS AFTER THE OFFENSE IN WHICH HE HAD EXPRESSED REMORSE, HUMANITY AND DEMEANOR PARTICULARLY AT THE PENALTY PHASE, IN VIOLATION OF ESTABLISHED FEDERAL AND STATE CASE LAW.
II. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND v. WASHINGTON.
A. Trial Counsel's Inadequate Investigation and Presentation of Mitigation Factors at the Penalty Phase.
B. DNA Evidence. C. Cumulative Effect of Counsel's Failure to Make Contemporaneous Objections to Damaging Testimony, the Result of Which was Ineffective Assistance of Counsel Within the Meaning of Strickland v. Washington.
III. SIMMONS WAS DENIED THE EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL AND THE FAILURE OF THE TRIAL COURT TO INQUIRE INTO THE CONFLICT VIOLATED HIS FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AND CORRESPONDING PROVISIONS OF THE MISSISSIPPI CONSTITUTION.
IV. THE MITIGATION TESTIMONY OF LORI SIMMONS, EX-WIFE OF THE PETITIONER, WAS UNFAIRLY LIMITED BY THE TRIAL COURT AND AS A RESULT SIMMONS WAS DENIED HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO CALL WITNESSES TO TESTIFY ON HIS BEHALF.
V. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.
VI. THE PETITIONER'S MOTIONS FOR A CONTINUANCE SHOULD HAVE BEEN GRANTED AND THE FAILURE TO DO SO WAS REVERSIBLE ERROR.
VII. THE SENTENCE RENDERED AGAINST PETITIONER GARY CARL SIMMONS IS DISPROPORTIONATE TO THAT OF HIS CO-DEFENDANT, THE PERSON WHO SHOT AND KILLED JEFFERY WOLFE, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING PORTIONS OF THE MISSISSIPPI CONSTITUTION.
VIII. PETITIONER WAS DENIED HIS RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL TRIAL.
. Simmons's Supplement/Amendment to Petition raises the following supplemental issues:
IX. THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE WERE NOT INCLUDED IN SIMMONS' INDICTMENT AND THEREFORE HIS DEATH PENALTY MUST BE VACATED.
A. In Ring v. Arizona, the U.S. Supreme Court held that aggravating circumstances function as elements of the offense of capital murder
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