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Simmons v. State1/29/2004
did support the aggravator, amounts to appellate fact-finding or reweighing. We disagree. This Court reviewed the entire record on direct appeal and found that the aggravating circumstance in question was supported by certain evidence. We hold that this issue is without merit.
VI. MOTIONS FOR A CONTINUANCE.
. Simmons next argues that the trial court erred in failing to grant a continuance due to the State's intention to offer DNA evidence in support of its case and Simmons's resulting attempt to rebut this evidence. This issue was raised on direct appeal. This Court found that Simmons had not shown sufficient evidence, in a timely manner, to support the granting of a continuance. Simmons , 805 So.2d at 484-85. The State answers that as this issue was raised and rejected on direct appeal, it is barred by res judicata here. Simmons provides no reason that an exception to the bar should be considered. We hold that this issue is without merit.
VII. PROPORTIONALITY OF DEATH SENTENCE.
. Simmons next argues that his death sentence is disproportionate because Timothy Milano, not Simmons, actually fired the shots that killed Jeffery Wolfe. Milano received a life sentence. Simmons argues that this disparity in sentences is unfair, and also argues that there is no evidence that Simmons was a leader, planner and/or instigator of the killing. This issue was also raised on direct appeal. This Court rejected this issue, noting that the jury had found that Simmons intended Wolfe's death and contemplated that lethal force would be used, that the death penalty had been affirmed for others who had not done the actual killing and that ample evidence showed that Simmons actively planned and participated in the robbery and murder. Simmons , 805 So.2d at 507.
. Simmons cites Bishop v. State , 812 So.2d 934 (Miss. 2002), where Bishop was not the primary killer. The State argues that Bishop is more supportive of its argument, as Bishop received the death penalty while Jessie Wayne Johnson, who inflicted the lethal blows in that case, received life without parole. We agree with the State. The Court has also found the death penalty not to be disproportionate for an aider and abettor who is not the actual killer in several other cases. Smith v. State , 729 So. 2d 1191 (Miss. 1998); Ballenger v. State , 667 So. 2d 1242 (Miss. 1999); Carr v. State , 655 So. 2d 824 (Miss. 1995); Abram v. State , 606 So. 2d 1015 (Miss. 1992); Leatherwood v. State , 435 So. 2d 645 (Miss. 1983).
. Simmons also cites Randall v. State , 806 So.2d 185 (Miss. 2001), where this Court found that, where there was no proof as to who actually killed the victim, and the other co-defendants received sentences of less than death, and the jury only found that Randall contemplated that lethal force would be used and nothing else, then the death sentence was disproportionate. While Simmons's case does have similarities to Randall , the case at bar, as this Court noted on direct appeal, the jury found that Simmons intended the killing of Jeffery Wolfe to take place, in addition to finding that Simmons contemplated that lethal force would be employed. This Court specifically found that under these circumstances the death penalty was not disproportionate.
. Simmons also cites Bullock v. State , 525 So.2d 764 (Miss. 1987), and Duplantis v. State , 644 So.2d 1235 (Miss. 1994). In Bullock , this Court rendered a sentence of life imprisonment where Bullock's co-defendant actually killed the victim and received a life sentence. In Duplantis this Court reversed a murder conviction and death sentence on other grounds and intimated that the State's proof might have been insufficient on the issue of
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