                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2002-DR-00196-SCT

GARY CARL SIMMONS, JR.

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                              09/02/1997
TRIAL JUDGE:                                   HON. BILL JONES
COURT FROM WHICH APPEALED:                     JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        OFFICE OF CAPITAL POST-CONVICTION
                                               COUNSEL
                                               BY: ROBERT M. RYAN
ATTORNEYS FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL BY:
                                               JUDY T. MARTIN
                                                   MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                             DALE HARKEY
NATURE OF THE CASE:                            CRIMINAL - DEATH PENALTY - POST
                                               CONVICTION RELIEF
DISPOSITION:                                   MOTION FOR LEAVE TO SEEK POST-
                                               CONVICTION RELIEF DENIED - 01/29/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    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).

¶2.    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.

¶3.    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


                                                   2
             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.

¶4.   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.




                                               3
                 B.     In its requirement that at least one aggravating
                        circumstance be found before the death penalty can be
                        imposed, Mississippi's capital sentencing scheme is
                        indistinguishable from the Arizona scheme rejected in Ring.

                 C.     Capital murder may be charged only upon an indictment
                        alleging all of the elements of the crime to be proved.

        X.       THE TRIAL COURT ERRED IN CHARGING THE TRIAL JURY
                 WITH STATE REQUESTED INSTRUCTION S-11 AS THE SAME IS
                 AN INCORRECT STATEMENT OF THE LAW OF THE STATE
                 AND AS A RESULT SIMMONS WAS UNFAIRLY PREJUDICED
                 AND DENIED A FUNDAMENTALLY FAIR TRIAL.

¶5.     The State has moved to strike the issues raised in the Supplement/Amendment, saying they could

have been raised earlier. We deny the motion to strike, as this Court granted Simmons time to supplement

his initial Petition for Post-Conviction Relief, and the Supplement/Amendment was filed as a result.

                                                FACTS

¶6.     Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County,

Mississippi, in August 1996 to collect money owed Wolfe from a drug transaction. Wolfe and Leaser met

with Gary Simmons and Timothy Milano at Simmons's house on the evening of August 12. Initially the men

discussed the money owed to Wolfe, but after failing to resolve the matter Milano shot Wolfe with a .22

caliber rifle. Simmons then bound Leaser and locked her in a metal box. Leaser tried repeatedly to escape

from the box, and on one occasion Simmons heard her attempting to escape, removed her from the box

and raped her. He then returned her to the box. Simmons then dismembered Wolfe's body and dumped

the various body parts in the bayou behind his house. Leaser eventually escaped and convinced a neighbor

to call the police.

                                            DISCUSSION

        I.       EXCLUSION OF A VIDEOTAPE.


                                                    4
¶7.     Simmons made a videotape of himself after the murder of Wolfe and sent it to his wife, who in turn

delivered it to his lawyer. The videotape was eventually produced to the State. Simmons did not testify

at trial but attempted to introduce the videotape. The trial court excluded the videotape, and Simmons

raised this as error on direct appeal. This Court found that the videotape inadmissible because it was

hearsay and not relevant. Simmons, 805 So.2d at 488. Three members of the Court acknowledged that

the videotape was properly excluded in the guilt phase of the trial, but found that it should have been

admitted during the sentencing phase as part of Simmons's mitigating evidence. Simmons, 805 So.2d at

508-11 (Diaz, J., concurring in part and dissenting in part).

¶8.     Simmons argues that it was error for the trial court to exclude the videotape during the sentencing

phase because (1) it showed remorse by Simmons and would have rebutted the prosecution's argument

during sentencing that Simmons showed no remorse and (2) the admission of evidence should be relaxed

during the sentencing hearing.

¶9.     The State argues that Simmons's argument is barred under Miss. Code Ann. § 99-39-21, which

provides in part:

        (1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors
        either in fact or law which were capable of determination at trial and/or on direct appeal,
        regardless of whether such are based on the laws and the Constitution of the state of
        Mississippi or of the United States, shall constitute a waiver thereof and shall be
        procedurally barred, but the court may upon a showing of cause and actual prejudice grant
        relief from the waiver.

        (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal
        legal theory or theories shall constitute a waiver of all other state or federal legal theories
        which could have been raised under said factual issue; and any relief sought under this
        article upon said facts but upon different state or federal legal theories shall be procedurally
        barred absent a showing of cause and actual prejudice.

        (3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at
        trial and on direct appeal.

                                                        5
¶10.   We agree and hold that Simmons's argument is barred by res judicata.

       II.     EFFECTIVE ASSISTANCE OF COUNSEL.

¶11.   This Court has stated the following on ineffective assistance of counsel and the standard provided

in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):

       "The benchmark for judging any claim of ineffectiveness [of counsel] must be whether
       counsel's conduct so undermined the proper functioning of the adversarial process that the
       trial cannot be relied on as having produced a just result." Strickland v. Washington,
       466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must
       demonstrate that his counsel's performance was deficient and that the deficiency
       prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. "Unless a defendant
       makes both showings, it cannot be said that the conviction or death sentence resulted from
       a breakdown in the adversary process that renders the result unreliable." Stringer v.
       State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S.
       at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel's assistance
       was reasonable considering all the circumstances. Id.

               Judicial scrutiny of counsel's performance must be highly deferential.
               (citation omitted) ... A fair assessment of attorney performance requires
               that every effort be made to eliminate the distorting effects of hindsight, to
               reconstruct the circumstances of counsel's challenged conduct, and to
               evaluate the conduct from counsel's perspective at the time. Because of
               the difficulties inherent in making the evaluation, a court must indulge a
               strong presumption that counsel's conduct falls within the wide range of
               reasonable professional assistance; that is, the defendant must overcome
               the presumption that, under the circumstances, the challenged action 'might
               be considered sound trial strategy.'

       Stringer, 454 So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
       Defense counsel is presumed competent. Id.

               Then, to determine the second prong of prejudice to the defense, the
               standard is "a reasonable probability that, but for counsel's unprofessional
               errors, the result of the proceeding would have been different." Mohr v.
               State, 584 So.2d 426, 430 (Miss.1991). This means a "probability
               sufficient to undermine the confidence in the outcome." Id. The question
               here is:

                       whether there is a reasonable probability that, absent the
                       errors, the sentencer–including an appellate court, to the

                                                     6
                         extent it independently reweighs the evidence--would
                         have concluded that the balance of the aggravating and
                         mitigating circumstances did not warrant death.
                         Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.

                There is no constitutional right then to errorless counsel. Cabello v.
                State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d
                426, 430 (Miss.1991) (right to effective counsel does not entitle defendant
                to have an attorney who makes no mistakes at trial; defendant just has
                right to have competent counsel). If the post-conviction application fails
                on either of the Strickland prongs, the proceedings end. Neal v. State,
                525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426
                (Miss.1991).

        Davis v. State, 743 So.2d 326, 334 (Miss.1999) (citing Foster v. State, 687 So.2d
        1124, 1130 (Miss.1996)).

Brown v. State, 798 So.2d 481, 493-94 (Miss. 2001).

        A.      Trial Counsel's Investigation and Presentation of Mitigation
                Factors at the Penalty Phase.

¶12.    Simmons called the following witnesses in his sentencing hearing: Jewell Simmons, his paternal

grandmother; Milton Dupuis, his half-brother; Dana Vanzante, a friend; Lynette Holmes, a friend of

Simmons's ex-wife, Lori; Belinda West, Simmons's half-sister; and Lori Simmons, Simmons's ex-wife. The

witnesses testified that Simmons was a good person, a loving husband and father to his two daughters, and

he was a different person from the one portrayed at trial. Milton Dupuis testified that his father, Gary's

stepfather, beat them "every day just about," and Gary got the worst of it because he was the oldest.

Dupuis testified that his father also beat their mother and once when Gary tried to defend her, the stepfather

shot at him. Dupuis stated that Gary led him to have a religious conversion, but when Gary and Lori

divorced, Gary started making bad decisions. There was also testimony that Gary had been barred from

residing in the house with Lori's two older children from another marriage, but the reasons given for this




                                                      7
were not clear. Simmons argues that his counsel was ineffective for failure to adequately investigate his

background and family and to procure a professional expert to evaluate this information for the jury.

¶13.    Simmons cites Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000),

where the United States Supreme Court found that counsel had been ineffective at the sentencing phase

of trial because of counsel's failure to investigate and uncover proof of Williams's tragic childhood because

counsel thought that state law barred access to certain relevant records. The Court said counsel could have

discovered that Williams's parents had been imprisoned for criminal neglect of their children, that Williams

had been beaten by his father, that Williams had spent time in an abusive foster home, that Williams was

borderline mentally retarded and did not advance past the sixth grade in school, and that Williams had

helped authorities during his stay in prison.

¶14.    Simmons also cites Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000), where Jackson's

attorney was found to have been ineffective in the sentencing phase for spending about two hours

investigating in preparation for sentencing and calling only Jackson's estranged wife and mother as

witnesses. In invalidating the death sentence, the Ninth Circuit stated that Jackson's attorney never

investigated beyond the mother and wife because he never expected the case to reach the sentencing

phase, and he never investigated or presented evidence concerning Jackson's addiction to PCP or his PCP

intoxication at the time of the murder, never investigated a separate aggravating factor, and never

investigated beatings Jackson had endured as a child or signs that Jackson was mentally ill. See also

Smith v. Stewart, 140 F.3d 1263 (9th Cir. 1998) (death sentence vacated where counsel presented no

mitigating evidence when evidence concerning mental problems, drug abuse and family ties was available).




                                                     8
¶15.    Simmons cites Castro v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995), which is not an ineffective

assistance of counsel case. Castro deals with whether the trial court erred in refusing to provide funds for

a psychiatric expert for Castro's defense.

¶16.    Simmons finally cites Wiggins v. Smith, ____U.S. ___, 123 S.Ct. 2527, 156 L. Ed. 2d 471

(2003), where the United States Supreme Court found that Wiggins received ineffective assistance of

counsel because his trial counsel had failed to investigate and present mitigating evidence of Wiggins's

background, including physical and sexual abuse committed by his mother, by a series of foster parents,

and a Job Corps supervisor, as well as evidence of mental retardation. Counsel for Wiggins failed to make

this investigation even though the State made funds available for this purpose. Trial counsel instead

attempted to show that Wiggins was not responsible for the murder in question. The Supreme Court stated:

        In finding that Schlaich and Nethercott's investigation did not meet Strickland's
        performance standards, we emphasize that Strickland does not require counsel to
        investigate every conceivable line of mitigating evidence no matter how unlikely the effort
        would be to assist the defendant at sentencing. Nor does Strickland require defense
        counsel to present mitigating evidence at sentencing in every case. Both conclusions would
        interfere with the "constitutionally protected independence of counsel" at the heart of
        Strickland, 466 U.S., at 689, 104 S.Ct. 2052. We base our conclusion on the much
        more limited principle that "strategic choices made after less than complete investigation
        are reasonable" only to the extent that "reasonable professional judgments support the
        limitations on investigation." Id., at 690-691, 104 S.Ct. 2052. A decision not to investigate
        thus "must be directly assessed for reasonableness in all the circumstances." Id., at 691,
        104 S.Ct. 2052.

        Counsel's investigation into Wiggins' background did not reflect reasonable professional
        judgment. Their decision to end their investigation when they did was neither consistent
        with the professional standards that prevailed in 1989, nor reasonable in light of the
        evidence counsel uncovered in the social services records--evidence that would have led
        a reasonably competent attorney to investigate further. Counsel's pursuit of bifurcation until
        the eve of sentencing and their partial presentation of a mitigation case suggest that their
        incomplete investigation was the result of inattention, not reasoned strategic judgment. In
        deferring to counsel's decision not to pursue a mitigation case despite their unreasonable
        investigation, the Maryland Court of Appeals unreasonably applied Strickland.


                                                      9
        Furthermore, the court partially relied on an erroneous factual assumption. The
        requirements for habeas relief established by 28 U.S.C. §§ 2254(d) are thus satisfied.

Wiggins, 123 S.Ct. at 2541-42.

¶17.    The State argues that Simmons's counsel was not ineffective for failure to procure a psychological

or mitigation expert because he was not entitled to one. The State cites Bishop v. State, 812 So.2d 934,

939-40 (Miss. 2002), where this Court stated:

        A defendant is not entitled to a psychological expert where he has not raised insanity as a
        defense or where the State does not plan to submit psychological evidence against the
        defendant. Ladner v. State, 584 So.2d 743, 757 (Miss.1991); Nixon v. State, 533
        So.2d 1078, 1096 (Miss.1987). As we have stated, "[w]here a defendant offers no more
        'than undeveloped assertions that the requested assistance would be beneficial,' no trial
        court is under an obligation to provide him with fishing equipment." Griffin v. State, 557
        So.2d 542, 550 (Miss.1990) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n.
        1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985)).

        Bishop did not raise an insanity defense; he offered no facts which would show that there
        was a need to develop mitigating evidence based on psychological problems; and he
        underwent a thorough psychological evaluation performed at the State Hospital which
        produced no mitigating evidence.

        We therefore find that Bishop was not entitled to a psychological expert for the purpose
        of developing mitigating evidence.

In this case Simmons did not raise an insanity defense. His mental condition was not an issue in this case.

¶18.    In addition, Simmons offers no evidence now which supports his claim that his trial counsel should

have investigated more thoroughly, or in certain areas, even under the authority he cites. Simmons offers

nothing in support from mental health experts who can now say what an investigation of Simmons or his

family background would have shown, or what such experts would now be willing to testify to. Simmons

offers nothing from his trial attorney on how much time he spent preparing for the sentencing phase and why

he did not feel the need to offer more or different evidence on mitigation. In Wiggins v. Smith, Jackson

v. Calderon, and Williams v. Taylor refer to potential mitigation evidence contained in school records,

                                                    10
hospital records, prison records and expert findings. Here Simmons presents the affidavits of an

investigator from the Office of Capital Post-Conviction Counsel, who interviewed Simmons's grandmother

and sister, Jewel and Belinda Simmons. The first affidavit states that Jewel Simmons loved Gary and was

upset with the verdict. The affidavit further states that Gary's father refused to talk to the investigator and

that Jewel would not sign an affidavit because of Gary's father. Gary's mother, Mildred, never attended

the trial because she was embarrassed. Mildred had a gambling problem which caused hardship for the

family. Mildred remarried when Gary was three, and Gary's stepfather was very abusive. The

investigator's other affidavit describes an attempt to interview Gary's ex-wife, Lori, who, according to the

investigator, did not want to answer questions about Gary. The State argues that the affidavits are primarily

hearsay, and we agree. In addition some of what is contained in the affidavits was presented at trial.

¶19.    In conclusion we find that, Simmons has not submitted sufficient evidence of a breach of the duty

of counsel to investigate and present mitigation evidence as described by the United States Supreme Court

in Wiggins v. Smith,.

¶20.    Simmons also argues that trial counsel was ineffective for failure to interview the State's witnesses,

particularly Charlene Brooke Leaser, before trial, and for failure to cross-examine Leaser on her previous

guilty pleas in Texas state court to DUI and credit card abuse, and revocation of probation on credit card

abuse. The State argues that impeachment would have been permissible only on the credit card issue. The

State also argues that it could have been trial strategy not to cross-examine this young rape victim any more

vigorously considering what she had allegedly suffered.

¶21.    We find nothing in this record to indicate whether defense counsel interviewed Leaser. As for the

impeachment Simmons suggests, we doubt that it would have been significant considering that (1) the

State's DNA testimony supported Leaser's testimony and (2) Simmons did not testify, so there was no

                                                      11
testimony to contradict Leaser's version of the events surrounding Jeffery Wolfe's death. We hold that this

issue is without merit.

        B. DNA Evidence.

¶22.    Simmons next argues that his trial counsel was ineffective for failure to adequately prepare for the

examination of Deborah Haller, the State Crime Lab's DNA expert. Simmons states that his counsel should

have begun the process of procuring funds and finding a DNA expert "at least three months prior to the

production of the State's DNA report that they were doing DNA testing," or at least three months prior to

July 23, 1997, because counsel for Simmons allegedly knew at this time that the State was doing DNA

testing. This is the argument that the State made at trial and on direct appeal in response to Simmons's

request for continuance. See Simmons, 805 So.2d at 484. The State argued at trial and on direct appeal

that counsel for Simmons was at fault for not timely finding a DNA expert. Here, Simmons adopts the

State's trial and direct appeal argument. The State, faced with its arguments made at trial and on direct

appeal concerning defense counsel's lack of competence, now states, "It is unclear what more trial counsel

could have done."

¶23.    Deborah Haller, the State's DNA expert, testified concerning blood found in a bucket near a boat

used by Simmons, muscle tissue found in the bathroom in Simmons's home, a bush hook, and a knife

collected from the bathroom of Simmons's home. As to these items Haller testified that the probability of

the blood belonging to someone besides Jeffery Wolfe was one in 390,000 in the Caucasian population.

Haller also testified that the DNA material found on a condom collected from a wastebasket in Simmons's

bathroom was consistent with that of Simmons and Charlene Leaser.

¶24.    This testimony was critical on the matter of Simmons's participation in the case. It also supported

Leaser's testimony that Simmons had raped her. The State argues that this issue is in part a restatement

                                                    12
of issues raised on direct appeal concerning whether the trial court erred in admitting Haller's testimony and

whether the trial court erred in refusing to grant a continuance to Simmons so that his expert could have

more time to review the DNA evidence. The State also argues that defense counsel's conduct was not

deficient and that Simmons did not at trial and does not here proffer and evidence which would show that

Haller's testimony was incorrect or flawed in any way.

¶25.    We agree with the State's last argument. Even if one conceded that the first prong of the

Strickland v. Washington test, that of deficient conduct by defense counsel, was met here, there is still

the matter of prejudice. Simmons has produced nothing, even at this time, from Dr. Ron Acton, Simmons's

DNA expert at trial, or anyone else, which calls into question the accuracy of the results testified to by the

State's DNA expert. Without such evidence prejudice cannot be shown, and this issue is without merit.



        C.       Cumulative Effect of Counsel's Failure to Make Contemporaneous
                 Objections.

¶26.    Simmons next argues that the failure of his trial counsel to make contemporaneous objections on

numerous occasions amounted, in a cumulative manner, to ineffective assistance of counsel. The State

argues that this Court noted all of these instances in its opinion, including the fact that no contemporaneous

objection had been made by the defense, and reached the merits of each argument regardless, finding that

none of the claims amounted to error. The State argues that because this Court considered each of these

instances on the merits and found that there was no error, then a claim for ineffective assistance of counsel

can not be supported because the prejudice prong of the Strickland test cannot be met. We agree and

hold that this issue is without merit.

        III.     EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL.



                                                     13
¶27.    Simmons next argues that he was denied effective assistance of counsel because his trial counsel,

Harvey Barton, had before the trial represented a state witness, Dennis Guess, and represented Guess's

father at the time of Simmons's trial. Simmons argues that this amounted to a conflict of interest and the

trial judge should have declared a mistrial.

¶28.    This issue was raised by Simmons on direct appeal. This Court found that there was "no evidence

in the record to suggest that defense counsel acted in some manner other than capable." Simmons, 805

So.2d at 480. The issue is barred by res judicata pursuant to Miss. Code Ann. § 99-39-21(3).

        IV.      MITIGATION TESTIMONY OF LORI SIMMONS.

¶29.    Simmons next argues that "his ex-wife, Lori Simmons, was not permitted to fully testify as to

matters pertaining to mitigation factors offered by him at the sentencing phase of the proceeding. Numerous

times the State objected to responses to defense questions during her examination at trial. Simmons alleges

that the adverse rulings by the trial court violated his fundamental right to call witnesses on his behalf."

¶30.    This issue was presented to this Court on direct appeal. The Court found that "the trial judge may

have initially erred in sustaining the State's objections to several questions posed to Lori, in fact,

subsequently, she was allowed to respond and fully explore the issues posed by the previous denied

questions," and any error was harmless. Simmons, 805 So.2d at 498.

¶31.    The State argues that Simmons is barred by res judicata from raising this issue now, as it was

decided on direct appeal. Simmons provides no exception to this rule. Simmons does attach an affidavit

from an employee of the Office of Capital Post-Conviction Counsel, which states that the employee

attempted to contact Lori Simmons, who declined to answer any questions about the case. That Lori

Simmons refuses to answer questions now about the case is not relevant on the question of whether Gary

Simmons received a fair trial. We hold that this issue is without merit.

                                                     14
        V.         AGGRAVATING CIRCUMSTANCE THAT SIMMONS KNOWINGLY
                   CREATED A GREAT RISK TO MANY PERSONS.


¶32.    At trial the jury found two aggravating circumstances: one was that the capital offense was

committed for pecuniary gain, and the second was that "the defendant knowingly created a great risk of

death to many people." On direct appeal Simmons argued that the second aggravator was supported by

insufficient evidence. This Court found "that the evidence regarding Simmons' disposal of Wolfe's remains

into the bayou constituted knowingly creating a great risk to many people. There is no reversible error

here." Simmons, 805 So.2d at 497.

¶33.    Simmons now makes the same argument on post-conviction, that "the prosecution failed to

introduce adequate and sufficient evidence to convince a jury beyond a reasonable doubt that petitioner

had knowingly created a great risk to many persons as a matter of law." We hold that this issue is barred

by res judicata.

¶34.    Simmons also argues that "[i]t should not matter either, if a defendant fails to object to any such

charge or erroneous instruction as under the recent case of Ring v. Arizona, 536 U.S. 584, 122 S. Ct.

2428, 153 L. Ed. 2d 556 (2002), the Sixth Amendment requires that any finding of fact that makes a

defendant eligible for the death penalty must be unanimously made by the jury beyond a reasonable doubt."

Though the record is not clear whether defense counsel objected or not, this is irrelevant, as this Court

considered the merits of the argument and found there was no error. Even if Ring did apply, the jury did

find the aggravating circumstance in question beyond a reasonable doubt.

¶35.    Simmons argues that this Court's finding on direct appeal that one scenario, the repeated firing of

a rifle in a residential neighborhood, did not sufficiently support the aggravator in question, but that placing

Jeffery Wolfe's remains in community waters did support the aggravator, amounts to appellate fact-finding


                                                      15
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.

¶36.     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.

¶37.     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.

¶38.     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

                                                     16
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 abbetter 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).

¶39.    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.

¶40.    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 proportionality in the first trial. We find neither case to be

controlling here.




                                                     17
¶41.     Simmons also cites as intervening cases Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Supreme Court held

in Ring that only a jury may find an aggravating circumstance necessary for the imposition of the death

penalty. The Supreme Court held in Apprendi that any fact, other than a previous conviction, that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt. Neither case changes or expands the law on proportionality. The

issue was dealt with on direct appeal, and we hold that it is barred by res judicata at the post-conviction

level.

         VIII. CUMULATIVE ERROR.

¶42.     Simmons next argues that even if none of the alleged errors, cited individually, may be basis for

relief, the cumulative effect of all the errors viewed together mean that Simmons is entitled to relief.

Simmons raised the cumulative error issue on direct appeal. The Court found the argument was without

merit:

         Simmons's final assertion of error is that each of the above enumerated errors, when taken
         together, warrant reversal as cumulative error. Simmons cites Hickson v. State, as
         authority for this proposition when this Court held that reversal was warranted by their
         perception of a combined prejudicial impact of two actions taken by the State that
         substantially compromised Hickson's right to a fair trial. Hickson v. State, 472 So.2d
         379, 385 (Miss.1985).

         The State counters with a quote from Doss v. State, which reads "[w]here there is no
         reversible error in any part, .... there is no reversible error to the whole." Doss v. State,
         709 So.2d 369, 401 (Miss.1996). Additionally, this Court has held that a murder
         conviction or a death sentence will not warrant reversal where the cumulative effect of
         alleged errors, if any, was procedurally barred. Doss, 709 So.2d at 401. Cumulatively,
         these errors do not warrant reversal.

Simmons, 805 So.2d at 508. Even with the additional arguments made here that were not made on direct

appeal, we hold that this issue is without merit.

                                                     18
        IX.       OMISSION OF THE AGGRAVATING FACTORS ELEVATING
                  THE CHARGE TO A CAPITAL OFFENSE FROM INDICTMENT.

                  A.     Ring v. Arizona.

¶43.    Simmons argues that his indictment is unconstitutional for failure to include and specify the

aggravating factors used to sentence him to death. This issue was not raised at trial or on direct appeal and

normally would be procedurally barred However, Simmons primarily relies on Jones v. United States,

526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed 2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466

(2000), and Ring v. Arizona, 536 U.S. 584 ( 2002), as intervening decisions which would nullify the

procedural bar.

¶44.    In Jones v. United States the United States Supreme Court considered a federal carjacking

statute. The Supreme Court found in Jones that the carjacking statute, which allowed three different

punishments increasing in severity depending on the degree of violence used or physical harm accomplished

by the carjacker, could result in three distinct offenses, all of which had to be charged in the carjacker's

indictment:

        [U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial
        guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases
        the maximum penalty for a crime must be charged in an indictment, submitted to a
        jury, and proven beyond a reasonable doubt.

Jones, 526 U.S. at 243 n.6 (emphasis added).

¶45.    Jones was followed by Apprendi. Apprendi fired several shots into the home of an African-

American family in Vineland, New Jersey. Apprendi was indicted on numerous state charges of shooting

and possession of firearms. He eventually pled guilty to two counts of possession of a firearm for unlawful

purpose and one count of possession of an explosive. After the judge accepted the guilty pleas, the



                                                     19
prosecutor moved for an enhanced sentence on one of the counts on the basis that it was a hate crime. The

judge concurred and rendered an enhanced sentence on twelve years on that particular count, with shorter

concurrent sentences on the other two counts.

¶46.    Relying in part on Jones, Apprendi argued that he was entitled to have the finding on enhancement

decided by a jury. The Supreme Court agreed, stating: "Other 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, 530 U.S. at 490. However, the Court specifically

stated that "Apprendi has not here asserted a constitutional claim based on the omission of any reference

to sentence enhancement or racial bias in the indictment. . . . We thus do not address the indictment

question separately today." Apprendi, 530 U.S. at 477 n.3.

¶47.    The Court found in Apprendi that New Jersey's statutory scheme would allow a jury to convict

a defendant of a second degree offense of possession of a prohibited weapon, and then, in a separate

subsequent proceeding, allow a judge to impose a punishment usually reserved for first degree crimes made

on the judge's finding based on a preponderance of the evidence. The Apprendi Court finally stated that

its decision did not apply to capital sentencing cases, even those cases where the judge was the one

deciding whether to sentence the defendant to death or some lesser sentence, citing Walton v. Arizona,

497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511(1990), where the Arizona capital sentencing process

had been upheld.

¶48.    In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue of

whether the Arizona capital sentencing process as upheld in 1990 in Walton v. Arizona, that of a jury

deciding guilt and a judge making findings on aggravating factors, could survive the Apprendi decision.



                                                    20
The Supreme Court decided it could not. Despite the efforts in Apprendi to distinguish non-capital

enhancement cases from aggravating circumstances in capital cases in this context, the Supreme Court in

Ring found that there was no difference.

        [W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury,
        to find an aggravating circumstance necessary for imposition of the death penalty.See 497
        U.S., at 647-649, 110 S.Ct. 3047. Because Arizona's enumerated aggravating factors
        operate as "the functional equivalent of an element of a greater offense," Apprendi, 530
        U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by
        a jury.
                                                     ***
                 "The guarantees of jury trial in the Federal and State Constitutions reflect
                 a profound judgment about the way in which law should be enforced and
                 justice administered. ... If the defendant preferred the common-sense
                 judgment of a jury to the more tutored but perhaps less sympathetic
                 reaction of the single judge, he was to have it." Duncan v. Louisiana,
                 391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

        The right to trial by jury guaranteed by the Sixth Amendment would be senselessly
        diminished if it encompassed the factfinding necessary to increase a defendant's sentence
        by two years, but not the factfinding necessary to put him to death. We hold that the Sixth
        Amendment applies to both.

Ring, 536 U.S. at 609.

¶49.    Simmons's argument is that because Ring found the Apprendi decision persuasive on the issue

of Arizona's enumerated aggravating factors operating as "the functional equivalent of an element of a

greater offense," the Supreme Court necessarily adopted every other rule stated in Apprendi for state

capital sentencing proceedings, specifically the rule first cited in Jones v. United States, that the

Constitution requires that aggravating factors be listed in indictments. We find this argument is incorrect.

Ring only found juries must find aggravating factors: "Ring's claim is tightly delineated: He contends only

that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. .

. . Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530


                                                    21
U.S. at 477 n.3, 120 S.Ct. 2348 (Fourteenth Amendment "has not . . . been construed to include the Fifth

Amendment right to 'presentment or indictment of a Grand Jury'"). Ring, 536 U.S. at 597 n.4.

                 B.      Mississippi's capital sentencing scheme.

¶50.    Simmons's argues: "Although Mississippi's capital sentencing scheme is not identical in all respects

to the Arizona scheme rejected by the United States Supreme Court in Ring, the two schemes are

identical in the respects relevant to this case." This is incorrect. The two sentencing schemes are different

in the only respect relevant to Ring, that of who finds aggravating circumstances that lead to the death

sentence. Under Arizona's scheme, the judge did this, and for this reason Arizona's scheme was found to

be unconstitutional. Under this state's statutory scheme, and in Simmons's case the jury found the

aggravating circumstances. We hold that there is no infirmity under Ring.

                 C.      Indictment alleging all of the elements of the crime to
                         be proved.

¶51.    Simmons sums up his argument concerning the alleged problems with his indictment by repeating

it here. Simmons cites United States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002), and United States

v. Lentz, 225 F. Supp. 2d 672 (E.D. Va. 2002). In Fell, 217 F.Supp.2d at 483, the court found the

following: "Although the Ring decision explicitly did not discuss whether a defendant was entitled to grand

jury indictment on the facts that, if proven, would justify a sentence of death, see Ring, ____ U.S. at ____

n. 4, 122 S.Ct. at 2437 n. 4, the clear implication of the decision, resting as squarely as it does on Jones,

is that in a federal capital case the Fifth Amendment right to a grand jury indictment will apply." This is not

a federal capital case, and there is nothing to show that this Fifth Amendment right is applicable to a state

capital case. Lentz makes the same finding, but once again deals with the Federal Death Penalty Act, or

FDPA.


                                                     22
¶52.    Simmons also relies on the United States Supreme Court decision of Allen v. United States,

536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002). In a memorandum decision, the Supreme

Court stated the following: "The judgment [in Allen] is vacated and the case is remanded to the United

States Court of Appeals for the Eighth Circuit for further consideration in light of Ring v. Arizona, 536

U.S. ______ (2002)."

¶53.    One issue raised in Allen was the issue Simmons raises here, that of his indictment being defective

because it did not contain the aggravating factors. The Eighth Circuit in Allen found that Allen's indictment

was not defective even though it did not contain the aggravating factors. If this is the basis on which Allen

is being reversed, it seems odd to cite Ring v. Arizona to do it. The question of what an indictment must

contain in a state capital case was not before the Ring court. In Apprendi v. New Jersey, the Supreme

Court stated that the Fifth Amendment right to indictment had never been applied to the states through the

Fourteenth Amendment. Absent more explicit direction, we find that the Supreme Court has not ruled that

state capital defendants have a constitutional right to have all aggravating circumstances listed in their

indictments. We find that this issue is without merit.

        X.      INSTRUCTION S-11.

¶54.    On direct appeal Simmons raised as error the giving of Instruction S-11, which states:

        The Court instructs the jury that one who willfully, unlawfully, and feloniously aids, abets,
        assists, or otherwise encourages the commission of a crime is just as guilty under the law
        as if he or she had committed the whole crime with his or her hand.

¶55.    This Court found the issue to be without merit as follows:

        Simmons alleges that the trial court erred in granting State's S-11 which he believes is an
        incorrect statement of the law. The State urges that this argument should be procedurally
        barred because defense counsel's objection to S-11 is different on appeal than the one
        offered at trial. At trial, it appears that defense counsel objected to S-11 on the grounds
        that it was an "aiding and abetting" instruction, rather than an incorrect statement of the law.

                                                      23
        The State cites Doss v. State, 709 So.2d 369, 378 (Miss.1996) for the proposition that
        an objection at trial on one specific ground constitutes a waiver on all other grounds.

        Simmons believes that this instruction relieved the prosecution of its burden to prove all of
        the elements of capital murder, robbery, kidnaping and rape. Simmons cites generally
        Hornburger v. State, 650 So.2d 510, 514 (Miss.1995) and Berry v. State, 728
        So.2d 568 (Miss.1999).

        Both Hornburger and Berry are distinguishable because they involved instructions that
        told the jury that each person who commits any act that is an element of the crime is guilty
        as a principle. S-11 simply does not contain the operative language that could be construed
        as reading that a defendant found guilty of aiding and abetting with respect to one element
        of the crime is guilty as a principle. When determining whether error lies in the granting or
        refusal of various instructions, we must consider all the instructions given as a whole.
        Coleman v. State, 697 So.2d 777, 782 (Miss.1997). "When so read, if the instructions
        fairly announce the law of the case and create no injustice, no reversible error will be
        found." Coleman, 697 So.2d at 782. The jury instructions listing the elements of capital
        murder (S-4a), robbery (S-3), kidnapping (S-7), and rape (S-8) all carefully lay out the
        elements of each crime. Additionally, Simmons is guilty as a principal under Miss.Code
        Ann. §§ 97-1-3 (2000).Thus, we find no error in the giving of this instruction.

Simmons, 805 So.2d at 475-76.

¶56.    Simmons acknowledges this Court's consideration of S-11 on direct appeal, but states here at the

post-conviction level that S-11 "causes a more serious, obscure and sinister problem, different and apart

from the issue addressed on appeal - it allows the jury an option in regard to the capital murder charge of

finding Simmons guilty through a minimal act not rising to the level of the actual commission of the crime."

Simmons further states that "[t]he syntactical and semantic differences in the given aiding and abetting and

accessory instructions which may allow for an experienced jurist to differentiate are simply confusing and

prone to error when read by a lay juror." Simmons later adds that S-11, "when viewed within the evidence

adduced in trial, unfairly lessened the prosecutor's burden." The State argues that Simmons is raising the

same issue here that he raised on direct appeal, and as such this issue is barred from consideration by res

judicata. We agree with the State's argument and hold that the issue is barred due to res judicata.


                                                    24
¶57.    If Simmons is attempting to raise a new issue here, we hold that the attempt is further barred under

Miss. Code Ann. § 99-39-21(1), as this issue could have been raised on direct appeal but was not, and

§ 99-39-21(3), which states that "the litigation of a factual issue at trial and on direct appeal of a specific

state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories

which could have been raised under said factual issue; and any relief sought under this article upon said

facts but upon different state or federal legal theories shall be procedurally barred absent a showing of

cause and prejudice."

¶58.    Simmons finally argues that in the direct appeal of his co-defendant, Timothy Milano, this Court

was compelled to announce that the jury instruction at issue in Berry and Lester v. State, 744 So.2d 757

(Miss. 1999), and in this case should no longer be given, and the Court prospectively adopted a Pattern

Jury Instruction from the Fifth Circuit. As stated in this Court's opinion in Simmons's direct appeal, S-11

is distinguishable from the instructions found in the other cases cited here. This Court in Milano did not

reverse based on the instruction in question, but found that any error was harmless as other instructions

provided that all elements of the offenses had to be proved before Milano could be found guilty. Milano

v. State, 790 So.2d 179, 185 (Miss. 2001). We find that this issue is without merit.

                                             CONCLUSION

¶59.    After thorough consideration we deny Simmons’s Motion for Leave to Proceed in the Trial Court

on a Petition for Post-Conviction Relief, as amended and supplemented.

¶60.    MOTION FOR LEAVE TO SEEK POST- CONVICTION RELIEF, DENIED.

     PITTMAN, C.J., WALLER, P.J., COBB, EASLEY, CARLSON, GRAVES AND
DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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