Case: 08-70048 Document: 00511587483 Page: 1 Date Filed: 08/30/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 30, 2011
No. 08-70048 Lyle W. Cayce
Clerk
GARY CARL SIMMONS, JR.,
Petitioner–Appellant
v.
CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,
Respondent–Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Gary Carl Simmons Jr. appeals the denial of his petition for
habeas corpus, brought pursuant to 28 U.S.C. § 2254. On August 29, 1997,
Simmons was convicted of capital murder, rape, and kidnapping in the Circuit
Court of Jackson County, Mississippi. After the Mississippi Supreme Court
denied relief on direct review, Simmons v. State, 805 So. 2d 452 (Miss. 2001),
and in post-conviction relief proceedings, Simmons v. State, 869 So. 2d 995
(Miss. 2004), Simmons filed a federal habeas petition in the U.S. District Court
*
Judge Garza does not join in the per curiam opinion and files his own dissenting
opinion.
Case: 08-70048 Document: 00511587483 Page: 2 Date Filed: 08/30/2011
No. 08-70048
for the Southern District of Mississippi, raising fifteen grounds for relief. The
district court denied relief on all grounds, but granted a certificate of
appealability (“COA”) on one ground. Simmons v. Epps, No. 1:04-CV-00496,
2008 WL 4446615 (S.D. Miss. Sept. 26, 2008). Thereafter this Court granted
Simmons a COA on one additional ground and denied it on another. See
Simmons v. Epps, 381 F. App’x 339 (5th Cir. 2010) (per curiam) (unpublished).
We consider Simmons’s habeas petition on two grounds, both of which
challenge his death sentence but not his underlying conviction: (1) whether the
trial court erroneously allowed the prosecution to submit to the jury an
aggravating circumstance without sufficient evidentiary support in violation of
the Sixth, Eighth, and Fourteenth Amendments; and (2) whether the trial court
erred during the sentencing phase of his trial by excluding relevant mitigating
evidence in violation of the Sixth, Eighth, and Fourteenth Amendments. We
hold that although the “great risk of death” aggravating circumstance was
improperly applied to Simmons, the error is nonetheless harmless. Additionally,
we find that the trial court’s exclusion of a self-made videotape as mitigating
evidence was not objectively unreasonable in light of the clearly established
constitutional precedent. Therefore, we affirm the district court’s denial of
habeas relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because the facts of this case are adequately set out in both the
Mississippi Supreme Court’s opinion affirming Simmons’s conviction and
sentence, Simmons, 805 So. 2d 452, and the district court’s opinion, Simmons,
2008 WL 4446615, we discuss only the facts and procedural history directly
relevant to this appeal.
The murder at issue occurred in Simmons’s house early in the morning of
August 13, 1996. Jeffrey Wolfe had traveled with his companion, Charlene
Leaser, from Houston to Mississippi in order to collect a drug-related debt from
2
Case: 08-70048 Document: 00511587483 Page: 3 Date Filed: 08/30/2011
No. 08-70048
Simmons and Timothy Milano, Simmons’s ex-brother-in-law. Wolfe and Leaser
arrived at Simmons’s house late in the evening after Simmons asked Sonny
Milano, Timothy’s brother, to call Wolfe and ask him to come to the house.
Shortly after, Timothy Milano arrived as well. While Simmons and Leaser went
into the kitchen to smoke a joint of marijuana, Leaser heard several shots. She
saw Wolfe fall to the floor and saw Timothy standing behind him with a gun.
Simmons immediately seized Leaser, told her not to look, and brought her into
a bedroom where he lay down on top of her. He then questioned her about why
they were there, whether she had any drugs, and who knew that they were
there. After he finished questioning her, he tied up her hands and feet and
placed her in a large metal box.
After Simmons left the room, Leaser managed to free herself from the rope
and was attempting to knock the lid off the box. Simmons returned at that
point, stripped her of her clothes and jewelry, retied her, and placed her back in
the box. When Simmons returned again, he raped her, then retied her and
placed her back in the box. Later, after hearing nobody answer the ringing
phone, Leaser surmised that nobody else was in the house and managed to force
the lid off of the box. She then ran across the street to a neighbor, who called the
police. Although Leaser’s suitcases were still inside Simmons’s house when she
reentered with the police, her money was gone.
Shortly after police arrived on the scene and secured a search warrant,
they noticed a small boat docked on the bayou behind Simmons’s house, and in
it, a piece of flesh. They also discovered several buckets, a bushhook, and a
knife, all of which had blood on them. Shortly after this discovery, they began
collecting body parts from the bayou, a task that took several days. Testimony
from trial established that officers and coroner’s office officials collected eighty-
five pounds of human remains on the first day and forty-one pounds on the
second day. Several portions of the body had bullet holes, and Dr. Paul McGarry
3
Case: 08-70048 Document: 00511587483 Page: 4 Date Filed: 08/30/2011
No. 08-70048
testified that the body parts had been cut sharply and precisely and the bones
separated from flesh. Ultimately, the body parts collected were identified as
Wolfe’s. At trial, Simmons’s co-worker in the meat department of the grocer
where they both worked testified that Simmons had taken his butcher’s knives
home with him on the evening of the murder, which he found unusual.
During both a pre-trial suppression hearing and during the trial, Lee
Merrill, an investigator with the Moss Point Police Department who was
involved with removing Wolfe’s remains from the bayou, testified about the
bayou and his collection of the body parts. He testified that although he began
finding body parts twenty to thirty feet from where the boat was located, he
ultimately found body parts as far as 150 yards away. He further noted that the
bayou was approximately eight to nine feet wide and four feet deep, and
contained fish and crabs, and that he had seen an alligator once during his time
there. He also stated, and the Mississippi Supreme Court later found as fact,
that the bayou had a current and ran into a tributary that itself eventually
flowed into the Gulf of Mexico. Simmons’s neighbor and friend Rita Taylor also
testified at trial about the bayou, which she referred to as the “canal,” and the
surrounding area. She stated that their neighborhood was “somewhat rural,”
and that she had seen alligators in the bayou. Taylor noted that Simmons would
“play around with them,” and on one occasion she saw him shoot at one a few
times.
At trial, Simmons’s friend Dennis Guess also provided crucial testimony.
He described returning from work on August 14, the day after the murder, to
find Simmons in his house. Guess testified that Simmons told him that he had
“whacked a drug dealer” and then had “deboned him, cut him up in little pieces,
and put him in the bayou.” Guess noted that Simmons was disappointed
because Wolfe only had one thousand dollars on his person, but that Simmons
was hoping that he would have much more. After confiding to Guess that he felt
4
Case: 08-70048 Document: 00511587483 Page: 5 Date Filed: 08/30/2011
No. 08-70048
his only options were to run, commit suicide, or turn himself in, they decided
that Simmons would turn himself in. Simmons then called a Jackson County
deputy who picked him up.
One issue of contention during the trial and sentencing was a videotape
Simmons recorded for his ex-wife, Lori, and his two daughters on the morning
of the murder before turning himself in. In the videotape, he expressed remorse
without ever referring directly to Wolfe’s murder. He made, among others, the
following statements:
I guess it’s a real mess, isn’t it? It wasn’t supposed to go like
that. . . . Things got pressing in. I was in a bind three or four
different ways. To my way of thinking, I didn’t have much of a
choice. I mean, I’d already taken his money. There’s no excuses.
....
It’s hard sitting here doing this, knowing under what conditions
you’ll probably be watching it. I’m so dreadfully sorry.
....
I didn’t think about it until after it was done. And then it couldn’t
be undone. There was nothing in the world I could do to make it
undone. And I would have. Oh, God, I would have. You never
realize how close you are to the edge until you actually step over it.
....
I don’t know how it happened, I really don’t. And after it had
happened, I would have gave anything to take it back, even my life.
After Simmons sent the videotape to Lori, she turned it over to Simmons’s
attorneys. At trial, the State moved to compel Simmons to turn over the
videotape, and the court granted the motion. Simmons attempted to introduce
the videotape during both the guilt and sentencing phases of the trial, but the
court ruled it inadmissible.
After a trial that lasted most of one week, the jury found Simmons guilty
of capital murder, kidnapping, and rape. Simmons received life sentences for the
kidnapping and rape, and the trial proceeded to the sentencing phase for capital
murder. The court instructed the jury that in order to return the death penalty,
5
Case: 08-70048 Document: 00511587483 Page: 6 Date Filed: 08/30/2011
No. 08-70048
it must first find that Simmons either (1) killed Wolfe; (2) attempted to kill
Wolfe; (3) intended that the killing of Wolfe take place; or (4) contemplated that
lethal force would be employed. If it found one of the four, it must then decide
whether one or both of the two aggravating circumstances the State had
submitted applied, and if so, weigh the aggravating and mitigating
circumstances. The court submitted the following two aggravating
circumstances to consider: (1) Simmons “knowingly created a great risk of death
to many people”; and (2) “the capital offense was committed for pecuniary gain
during the course of a robbery.”
During the sentencing hearing, the State called no witnesses and did not
make an opening statement other than to introduce forty-six exhibits from trial,
including the tools used to dismember Wolfe. Simmons called six mitigation
witnesses, including his ex-wife, his half-brother, and his half-sister. The
witnesses generally testified that he was a “family man” who cared deeply for his
daughters and often worked several jobs at a time to provide for his family.
Further, they noted that the crimes Simmons was charged with were totally out
of character for him. Simmons’s step-brother also testified that Simmons had
a difficult childhood, and that Simmons’s step-father beat him almost every day
and beat their mother. The jury returned a verdict of death for Simmons. It
found that Simmons intended that the killing take place and that lethal force be
employed, and that both aggravating circumstances were satisfied and that they
outweighed the mitigating circumstances. Simmons filed a motion for a new
trial, which was denied.
Simmons appealed his conviction and sentence to the Mississippi Supreme
Court, citing twenty-seven different errors by the trial court. The Mississippi
Supreme Court denied relief. As to the two issues contested here, the
Mississippi Supreme Court found that although Simmons failed to preserve
error by objecting to the “great risk of death” aggravating circumstance during
6
Case: 08-70048 Document: 00511587483 Page: 7 Date Filed: 08/30/2011
No. 08-70048
sentencing, it was nonetheless obligated to review whether the aggravator was
supported by sufficient evidence. Simmons, 805 So. 2d at 495–96. The State
had abandoned the argument used at trial, namely, that the great risk of death
to many people related to Simmons’s trapping Leaser in the metal box. Instead,
the Mississippi Supreme Court considered whether Simmons had knowingly
created a great risk of death to many people because of Milano’s firing of a rifle
in a residential neighborhood, or because of Simmons’s disposal of Wolfe’s
remains in the bayou. After rejecting the first explanation, the Supreme Court
held that the disposal of Wolfe’s body satisfied the aggravator because (1) Wolfe’s
remains created a “toxic mixture” that endangered residents who used the
water, and (2) Simmons’s disposal of the remains was intended to attract
alligators that would endanger “adjoining landowners” and “water enthusiasts.”
Id. at 496.
The Mississippi Supreme Court also rejected Simmons’s claim that the
trial court erred by excluding the videotape from sentencing. It found that the
videotape was “both irrelevant, as well as inadmissible, hearsay.” Id. at 488.
The Mississippi Supreme Court addressed his argument that the denial of the
videotape prevented him from demonstrating his remorse for the crime,
explaining that because he was present at trial and decided not to testify, the
relevant hearsay exception was unavailable to him. Id. It then noted that
admitting a self-serving declaration like the videotape would open the door to
abuse, because “an accused could create evidence for himself by making
statements in his favor for subsequent use at his trial to show his innocence.”
Id. at 489. Three justices, however, issued a dissent on this issue. The dissent
distinguished the use of such evidence at sentencing from its use at trial, and
noted that the cases relied upon by the majority dealt with hearsay evidence
during the guilt phase and not the punishment phase. Id. at 509–10 (Diaz, J.,
concurring in part and dissenting in part). Justice Diaz cited McClesky v. Kemp,
7
Case: 08-70048 Document: 00511587483 Page: 8 Date Filed: 08/30/2011
No. 08-70048
481 U.S. 279, 306 (1987), for the proposition that Simmons was entitled to have
the jury consider any relevant circumstance during sentencing. Id. at 509. The
dissent also cited Mississippi Supreme Court cases holding that “Mississippi
allows evidence of mitigating circumstance of an unlimited nature.” Id.
Simmons then instituted state post-conviction proceedings to challenge his
conviction and sentence. The Mississippi Supreme Court denied relief in 2004
and, in so doing, found that both issues relevant to this appeal were barred by
res judicata. Simmons, 869 So. 2d at 1000, 1006. On October 15, 2004,
Simmons filed a petition for writ of habeas corpus in the U.S. District Court for
the Southern District of Mississippi, raising fifteen grounds for relief. The
district court denied relief on all grounds. As to the “great risk of death
aggravating circumstance,” the district court found that although the record did
not support the Mississippi Supreme Court’s “toxic mixture” holding concerning
the disposal of Wolfe’s body, the evidence was sufficient to support its alligator
theory and thereby support the aggravator. Simmons, 2008 WL 4446615, at *12.
Additionally, the district court found that the exclusion of the videotape was not
constitutional error. Id. at *31.
Simmons requested a COA on three issues: (1) whether the trial court
erroneously allowed the prosecution to submit to the jury an aggravating
circumstance without sufficient evidentiary support in violation of the Sixth,
Eighth, and Fourteenth Amendments; (2) whether Simmons was denied effective
assistance of counsel during the penalty phase of his trial, in violation of the
Sixth and Fourteenth Amendments; and (3) whether the trial court erred during
the sentencing phase of his trial by excluding relevant mitigating evidence in
violation of the Sixth, Eighth, and Fourteenth Amendments. The district court
granted Simmons a COA as to the first issue, but denied it as to the second and
third. Simmons filed a motion to expand the COA, and we granted a COA as to
8
Case: 08-70048 Document: 00511587483 Page: 9 Date Filed: 08/30/2011
No. 08-70048
the third issue and denied it as to the second. Simmons, 381 F. App’x at 340.
Simmons then timely filed this appeal.
II. STANDARD OF REVIEW
We review the district court’s legal conclusions de novo and its factual
findings for clear error. Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir. 2002).
Simmons filed his federal habeas petition after 1996, so the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) applies to his claims. See Cantu v.
Thaler, 632 F.3d 157, 162 (5th Cir. 2011) (citing Lindh v. Murphy, 521 U.S. 320,
324–26 (1997)). Under AEDPA, we cannot grant habeas relief for claims that
were adjudicated on the merits in state court proceedings unless that
adjudication either
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). “We review pure questions of law under the ‘contrary to’
standard of sub-section (d)(1), mixed questions of law and fact under the
‘unreasonable application’ standard of sub-section (d)(1), and pure questions of
fact under the ‘unreasonable determination of facts’ standard of sub-section
(d)(2).” Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000) (citation omitted).
A decision is contrary to clearly established federal law under § 2254(d)(1)
if the state court (1) “arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law”; or (2) “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent” and reaches an
opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). The state court
makes an unreasonable application of clearly established federal law if the state
court (1) “identifies the correct governing legal rule from [the Supreme] Court’s
9
Case: 08-70048 Document: 00511587483 Page: 10 Date Filed: 08/30/2011
No. 08-70048
cases but unreasonably applies it to the facts”; or (2) “either unreasonably
extends a legal principle from [Supreme Court] precedent to a new context where
it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Id. at 407. In order to find that the state court’s
application of law to facts was unreasonable, its result must have been “more
than incorrect or erroneous” but must be “objectively unreasonable.” Wiggins v.
Smith, 539 U.S. 510, 520–21 (2003) (quoting Williams, 529 U.S. at 409). We
presume that factual determinations of the state court are correct; the petitioner
must rebut this presumption by clear and convincing evidence. See § 2254(e)(1);
Woods v. Quarterman, 493 F.3d 580, 587 (5th Cir. 2007).
III. DISCUSSION
Simmons alleges two points of constitutional error on his appeal. First, he
claims that the “knowingly created a great risk of death to many persons”
aggravating circumstance found by the jury during sentencing and affirmed by
the Mississippi Supreme Court lacks sufficient evidentiary support in violation
of the Sixth, Eighth, and Fourteenth Amendments. Second, he alleges that the
trial court erred by excluding relevant mitigating evidence during sentencing;
namely, that the exclusion of the videotape Simmons made shortly after the
murder in which he expressed remorse violated his rights under the Sixth,
Eighth, and Fourteenth Amendments.
A. Sufficiency of the Evidence on the Aggravating Circumstance
Simmons first notes that the jury found that he “knowingly created a great
risk of death to many people” based on the State’s argument that he created this
risk by locking Charlene Leaser in a metal box for several hours. He also asserts
that the State misstated the aggravating circumstance in its closing argument
during sentencing, referring to it simply as “great risk of harm or death.” On
direct appeal, the State abandoned this line of argument and instead asserted
that Simmons created a great risk of death to many people when (1) Milano
10
Case: 08-70048 Document: 00511587483 Page: 11 Date Filed: 08/30/2011
No. 08-70048
repeatedly fired a rifle in a residential neighborhood, and (2) when Simmons
created a “toxic mixture” in the bayou by disposing of Wolfe’s body parts and did
so to attract alligators, both of which created the risk to recreational users of the
bayou. The Mississippi Supreme Court rejected the first explanation but found
that Simmons’s disposal of Wolfe’s body parts in the bayou satisfied the
aggravating circumstance because (1) it created a “toxic mixture” that
endangered residents who used the water, and (2) it was intended to attract
“alligators and other similar creatures” that subjected nearby residents and
“water enthusiasts” to inherent danger.
Using this trial and appellate history, Simmons claims that the jury found
an aggravating circumstance without sufficient evidentiary support in violation
of his Sixth, Eighth, and Fourteenth Amendment rights. Simmons first contends
that the Mississippi Supreme Court’s acceptance of the public health and
alligator theories violated Ring v. Arizona, 536 U.S. 584 (2000), because it used
facts not found by the jury to make Simmons eligible for the death penalty.
Second, he asserts that the Mississippi Supreme Court’s decision was based on
an unreasonable determination of the facts and that the evidence was
insufficient for a reasonable jury to find the aggravating circumstance beyond
a reasonable doubt.
1. Sufficiency of the Evidence
As a first matter, we may not consider Simmons’s argument that the
Mississippi Supreme Court’s determination of a new factual basis for the “great
risk of death” aggravating circumstance deprived him of his constitutional right
under Ring to have a “jury determination of any fact on which the legislature
conditions an increase in their maximum punishment.” 536 U.S. at 589.
Simmons sought, and the district court granted, a COA to determine whether
“the trial court erroneously allowed the prosecution to submit to the jury an
aggravating circumstance without sufficient evidentiary support in violation of
11
Case: 08-70048 Document: 00511587483 Page: 12 Date Filed: 08/30/2011
No. 08-70048
[Simmons’s] Sixth, Eighth and Fourteenth Amendment rights as set forth in the
United States Constitution.” Simmons’s argument about allegedly improper
appellate fact finding is therefore outside of the scope of his sufficiency-of-the-
evidence argument. “We have jurisdiction to address only the issue specified in
the COA.” United States v. Daniels, 588 F.3d 835, 836 n.1 (5th Cir. 2009) (citing
Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)). Because Simmons’s
argument falls outside the scope of the COA, we may not address it here.
The Supreme Court has held that habeas relief is proper if we find “that
upon the record evidence adduced at trial no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 324 (1979). In Lewis v. Jeffers, the Supreme Court extended this principle
to hold that a petitioner’s due process or Eighth Amendment rights are violated
when a state court finds an aggravating circumstance that no reasonable
sentencer could have based on the evidence adduced at trial. 497 U.S. 764, 783
(1990). We must therefore evaluate the sufficiency of the evidence using the
“rational factfinder” standard established in Jackson. See id. at 781.
The aggravating circumstance at issue here is one of eight allowed under
Mississippi law. See MISS. CODE ANN. § 99-19-101(5). The aggravator reads:
“The defendant knowingly created a great risk of death to many persons.” Id.
§ 99-19-101(5)(c). The Mississippi Supreme Court has held that this aggravator
is not restricted to “those crimes where very large numbers of individuals were
at risk or those where the safety of others than an intended few was
jeopardized.” Jackson v. State, 684 So. 2d 1213, 1235 (Miss. 1996). It has also
held that the aggravator was improperly given, however, when there was “no
evidence that [the defendant] knowingly created a great risk of death to anyone,
other than . . . his intended victim.” Porter v. State, 732 So. 2d 899, 906 (Miss.
1999).
12
Case: 08-70048 Document: 00511587483 Page: 13 Date Filed: 08/30/2011
No. 08-70048
In the present case, the Mississippi Supreme Court rejected the argument
that Simmons satisfied the aggravator because Milano fired a gun in the middle
of the night in a residential neighborhood when only Simmons, Wolfe, and
Leaser were in the house. See Simmons, 805 So. 2d at 496. In so doing, it noted
that it declined to find that these three people together constituted “many”
people under the aggravator. Id. Instead, it found the following:
Simmons contaminated the recreational waters of the residential
neighborhood with Wolfe’s remains, much of which was not
recovered by police. These actions were intended to attract alligators
and other similar creatures in an effort to use what nature had to
offer to dispose of the evidence. Adjoining landowners and other
water enthusiasts were subjected to this inherent danger as a direct
result of Simmons’ actions. In addition, all of those residents who
used that water as it carried the solid and liquid remains of Wolfe
through tributaries into the Gulf of Mexico were subjected to this
toxic mixture as well.
Id. Thus, the Mississippi Supreme Court held that the evidence adduced at trial
was sufficient to support the aggravator because when Wolfe dumped the
chopped up remains of Wolfe into the bayou, he (1) created a toxic mixture that
threatened residents who used the bayou, and (2) intended to attract alligators
who would eat the remains, thus also endangering nearby residents and “water
enthusiasts.”
Because the facts marshaled by the Mississippi Supreme Court were an
unreasonable determination in light of the trial record, there was insufficient
evidence to sustain the aggravating circumstance. First, we agree with the
district court that the trial record is absent of any testimony or other evidence
that disposing of Wolfe’s body parts in the bayou created a “toxic mixture” that
posed a great risk to human life. The State concedes as much on appeal, noting
in its brief that “[b]ecause this was not argued by the prosecution at trial the
respondents can have no quarrel with this finding by the district court.” Not
only is the trial record devoid of any evidence that disposing of Wolfe’s remains
13
Case: 08-70048 Document: 00511587483 Page: 14 Date Filed: 08/30/2011
No. 08-70048
in the bayou could create a toxic mixture, the record provides little evidence
about use of the bayou by residents or “water enthusiasts.”
As to the alligators, the district court found that the risk of attracting
alligators that would threaten “adjoining landowners” or “water enthusiasts”
who used the bayou would nonetheless satisfy the aggravator. This finding is
clearly erroneous. There is ample evidence in the record to support a finding
that alligators inhabited the bayou. Simmons’s neighbor and friend, Rita Taylor,
testified that there were alligators in the bayou, and noted an incident where
Simmons shot at one of them. Additionally, police investigator Lee Merrill
testified that in the course of the several days he spent helping to collect Wolfe’s
remains, he once saw an alligator. Viewed in the light most favorable to the
state, this evidence establishes (1) that there are alligators in the bayou, and (2)
that Simmons knew that there were alligators in the bayou. Additionally, we
may fairly infer that alligators might eat human remains disposed of in the
bayou. Accepting these facts as true, the evidence is still insufficient to find that
by disposing of Wolfe’s remains in the bayou, Simmons “knowingly created a
great risk of death to many people.”
Most importantly, the evidence in the record establishes that alligators
were already present in the bayou. Therefore, to the extent that we may
speculate that “adjoining landowners” and “water enthusiasts” used the bayou
for recreation and that alligators threatened these people with a great risk of
death, they already faced this threat regardless of the disposal of Wolfe’s
remains. Additionally, aside from the testimony that Simmons had once shot at
an alligator in the bayou, and that his neighbor owned a boat that he used on the
bayou, there is a dearth of evidence in the record of any other “adjoining
landowners” or “water enthusiasts” using the bayou for recreational purposes.
Moreover, Lee Merrill’s testimony indicates that police and coroners began
14
Case: 08-70048 Document: 00511587483 Page: 15 Date Filed: 08/30/2011
No. 08-70048
collecting Wolfe’s remains from the bayou only hours after Leaser called the
police the morning following the shooting and body-parts disposal.
Finally, the aggravating circumstance requires that Simmons knowingly
create a great risk of death to many people. To find this intent, jurors must infer
from the fact that Simmons knew there were alligators in the bayou, that his
intent was for the alligators to consume Wolfe’s remains, thereby destroying the
evidence. Even viewing this inference as permissible based on our deferential
review of facts found by the Mississippi Supreme Court, finding that Simmons
satisfied the knowledge component of the aggravator would require assuming
that he knew that (1) the body parts would attract alligators not already present
in the bayou, and (2) that more than a couple of “adjoining landowners” and
“water enthusiasts” would use this stretch of water before the alligators
consumed Wolfe’s remains. This rank speculation is unsupported by the record.
While we recognize the deferential standard of review we must employ in
reviewing the state court’s findings of fact, and their own prerogative in defining
the scope of the aggravating circumstance within constitutional bounds,
Simmons has shown by clear and convincing evidence that the Mississippi
Supreme Court’s finding of fact regarding the “toxic mixture” and risk of
alligators are unreasonable given the facts in the record. Therefore, there is
insufficient evidence for a rational fact-finder to find beyond a reasonable doubt
that Simmons knowingly created a great risk of death to many people, and the
trial court’s submission of the instruction was error.
2. Effect of the Error
Having found that the “great risk of death” aggravator was submitted in
error, we must determine the effect of the error. The State argues that even if
we find that the “great risk of death to many people” aggravator was
unsupported by the evidence, there is nonetheless no constitutional error. The
15
Case: 08-70048 Document: 00511587483 Page: 16 Date Filed: 08/30/2011
No. 08-70048
State contends in light of the Supreme Court’s decision in Brown v. Sanders, we
must now apply the following principle:
An invalidated sentencing factor (whether an eligibility factor or
not) will render the sentence unconstitutional by reason of its
adding an improper element to the aggravation scale in the
weighing process unless one of the other sentencing factors enables
the sentencer to give aggravating weight to the same facts and
circumstances.
546 U.S. 212, 220 (2006). Arguing that the district court correctly found that the
evidence used to support the “great risk of death to many people” aggravator was
also relevant to the pecuniary-gain aggravator, the State urges us to find that
the sentence was still constitutional. Simmons urges that the facts and
circumstances relevant to the invalidated aggravator are not relevant to the
pecuniary-gain aggravator.
At least prior to Sanders, in “weighing states”1 such as Mississippi, an
invalidated aggravating factor used in imposing a death sentence rendered the
sentence unconstitutional. See Sochor v. Florida, 504 U.S. 527, 532 (1992). The
Supreme Court noted that this rule stems from the fact that “eligibility factors
by definition identified distinct and particular aggravating features, [so] if one
of them was invalid the jury could not consider the facts and circumstances
1
The Supreme Court has previously distinguished between “weighing” and “non-
weighing” states in the application of death-penalty sentencing. The distinction between these
states occurs after the state has applied statutorily defined eligibility factors that narrow the
class of defendants convicted of murder who are eligible for the death penalty. See Sanders,
546 U.S. at 216. “Once this narrowing requirement has been satisfied, the sentencer is called
upon to determine whether a defendant thus found eligible for the death penalty should in fact
receive it.” Id. In weighing states, “the only aggravating factors permitted to be considered
by the sentencer were the specified eligibility factors.” Id. at 217. Therefore, in weighing
states, “the sentencer’s consideration of an invalid eligibility factor necessarily skewed its
balancing of aggravators with mitigators and required reversal of the sentence” unless the
error was found to be harmless. Id. (citing Stringer v. Black, 503 U.S. 222, 232 (1992))
(internal citation omitted). For non-weighing states, “a State that permitted the sentencer to
consider aggravating factors different from, or in addition to, the eligibility factors,” the
Supreme Court “set forth different rules governing the consequences of an invalidated
eligibility factor.” Id. at 217–18.
16
Case: 08-70048 Document: 00511587483 Page: 17 Date Filed: 08/30/2011
No. 08-70048
relevant to that factor as aggravating in some other capacity.” Sanders, 546 U.S.
at 217. Therefore, after invalidating one of the aggravating circumstances, we
were compelled to reverse the sentence unless we determined that the error was
nonetheless harmless under the standard adopted in Brecht v. Abrahamson, 507
U.S. 619, 623 (1993). See Nixon v. Epps, 405 F.3d 318, 329–30 (5th Cir. 2005).
Sanders’s language, however, leaves great ambiguity as to whether the
principle announced above applies in weighing as well as non-weighing states.
In the paragraph prior to announcing its test, the Supreme Court explained that
the “weighing/non-weighing scheme is accurate as far as it goes, but it now
seems . . . needlessly complex.” Sanders, 546 U.S at 219. It went on, however,
to preface announcement of the test by noting: “We think it will clarify the
analysis, and simplify the sentence-invalidating factors we have hitherto applied
to non-weighing States, if we are henceforth guided by the following rule . . . .”
Id. at 220 (emphasis added). The Court did not appear to explicitly overrule its
precedent that creates the “weighing/non-weighing” bifurcation, but used some
language that nevertheless suggests that the distinction is a remnant of the
past. The Sixth Circuit has held that the Sanders test does not apply to
weighing states, noting the Court’s mention of simplifying the analysis the Court
has applied to non-weighing states. See Wilson v. Mitchell, 498 F.3d 491, 507
(6th Cir. 2007). The Eleventh Circuit, without deciding the issue, indicated that
“it is probable that the Court’s decision . . . announced a uniform rule to be
applied in weighing and nonweighing states alike.” Jennings v. McDonough, 490
F.3d 1230, 1255 n.22 (11th Cir. 2007). Like the Eleventh Circuit in Jennings,
we need not decide today whether the Supreme Court intended Sanders to apply
in weighing states, because we find that the submission of the “great risk of
death” aggravator was harmless error.
In our case law, when an aggravating circumstance was improperly
submitted to the sentencer we have applied the test found in Brecht to determine
17
Case: 08-70048 Document: 00511587483 Page: 18 Date Filed: 08/30/2011
No. 08-70048
if the error was harmless. See Nixon, 405 F.3d at 329–30; Billiot v. Puckett, 135
F.3d 311, 318 (5th Cir. 1998). The Supreme Court recently affirmed the
propriety of applying the Brecht test when conducting harmless error review in
habeas proceedings “when the state appellate court failed to recognize the error
and did not review it for harmlessness.” Fry v. Pliler, 551 U.S. 112, 114 (2007).
Under Brecht, we may not grant Simmons relief unless the error “had
substantial and injurious effect or influence in determining the jury’s verdict.”
507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
We have interpreted this standard to mean that habeas relief is only proper if
there is “more than a reasonable probability” that it could have contributed to
the decision to impose the death sentence. Billiot, 135 F.3d at 318 (quoting
Woods v. Johnson, 75 F.3d 1017, 1026–27 (5th Cir. 1996)). If, however, “our
minds are ‘in virtual equipoise as to the harmlessness,’” we must find that the
error was harmful. Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 433–36
(1995)). Thus, under our standard, the error is harmless if we find that “the
sentence would have been the same had the unconstitutional aggravator never
been submitted to the jury.” Nixon, 405 F.3d at 330 (citing Billiot, 135 F.3d at
319).
The State argues that even if we hold the “great risk of death to many
people” aggravator constitutionally invalid in this case, the error was
nonetheless harmless to the jury’s sentencing determination. First, it argues
under the guise of the Sanders test that the jury could have properly considered
the evidence that Leaser was kept locked in a metal box and stripped of her
clothes and belongings under the pecuniary-gain aggravator. It further argues
that the jury was authorized to consider the detailed circumstances of the crime,
and that the jury would have nevertheless returned a verdict of death
considering: (1) Simmons planned the murder in hopes of robbing Wolfe; (2) he
raped and imprisoned Leaser in a metal box for several hours; and (3) he
18
Case: 08-70048 Document: 00511587483 Page: 19 Date Filed: 08/30/2011
No. 08-70048
butchered Wolfe’s body. The State also notes that the prosecutor only mentioned
the “great risk” aggravator twice in his closing argument during sentencing, and
cites our decision in Nixon, where we found the submission of an invalid
aggravating circumstance harmless error under the Brecht test. 405 F.3d at 331.
The State offered a fairly limited case during Simmons’s sentencing. It
made no opening argument, instead introducing forty-six exhibits from the trial,
including evidence such as the knife and bushhook used to dismember Wolfe’s
body. Aside from this and some limited cross-examination of two of Simmons’s
mitigation witnesses, the only other argument or evidence offered was during
closing argument. The first prosecutor explained that the jury first needed to
find that Simmons intended that Wolfe’s killing take place and satisfy at least
one of the two qualifying factors offered, which were the same as the aggravating
factors, before balancing the aggravating against the mitigating circumstances.
The State made the following argument with respect to the “great risk of death”
aggravator:
Aggravating circumstance in this case, number one, is we
submit to you he created a great risk of harm or death. Think of
what was going on in the box for about six or seven hours. Think of
what was going to happen to her. Think of what they consciously
did to Jeffrey Wolfe, knowing that they were going to have to get rid
of everything, every piece of evidence including the body.
...
Where does all this lead? What was he going to do with the
eyewitness to this crime? What do you think was happening?
Common sense. You have heard all the evidence. Based on
everything you heard, I think it is reasonable to infer, to believe
based on everything else, that this was going to happen to her. So,
that’s submitted to you. That’s submitted to you because we think
that was going to happen. I think you think it was going to happen.
You know it was going to happen.
Thereafter, the prosecutor introduced the pecuniary-gain aggravator, spending
about the same amount of time discussing evidence of Simmons’s financial
19
Case: 08-70048 Document: 00511587483 Page: 20 Date Filed: 08/30/2011
No. 08-70048
troubles and arguing that the murder was motivated by a desire to rob Wolfe.
Only once more did the prosecutor refer to evidence that Simmons locked Leaser
in a box, merely stating: “remember Brooke.”
As a first matter, we reject the State’s argument that the error was
harmless because under the jury instruction, the jury could have nonetheless
considered all of the circumstances of the crime. While the jury was allowed to
consider all the circumstances of the crime when considering (1) whether
Simmons intended that the killing of Wolfe take place and (2) what mitigating
evidence existed in the case, this was not the case with respect to aggravating
circumstances. The jury instruction was clear that once the jury found that
Simmons intended the killing take place and that he satisfied one of the
eligibility factors, it must “consider only the following elements of aggravation
in determining whether the death penalty may be imposed.” Because we have
ruled one of those two aggravating circumstances invalid, we must consider only
the evidence presented that was relevant to the remaining aggravating
circumstance. Regardless, we find that the error was harmless.
Throughout trial and sentencing, the jury heard extensive testimony and
evidence related to Simmons’s financial motives in murdering Wolfe. Indeed,
this was the primary theory upon which the State sought to convict Simmons;
the jury ultimately found him guilty of capital murder because of the underlying
felony of robbery. The jury heard, among other evidence, that Simmons: asked
that Sonny Milano call Wolfe and ask him to come over to Simmons’s house that
night; brought home butcher knives from work; borrowed a boat from his
neighbor; owed a drug-related debt to Wolfe; was having financial difficulties;
took approximately $1,000 from Wolfe after his murder and was disappointed
that he did not have more money on his person; likely took Leaser’s money while
she was trapped in the metal box; and sought to hide the evidence by
dismembering Wolfe and disposing of his remains in the bayou.
20
Case: 08-70048 Document: 00511587483 Page: 21 Date Filed: 08/30/2011
No. 08-70048
Further, the State’s closing argument again emphasized the pecuniary-
gain aggravator. The State noted that Simmons’s ex-wife had admitted on cross-
examination during her mitigation testimony that Simmons was having
financial difficulties, and argued that he was not in a position to pay off the large
debts he owed to Wolfe. Based on this, the State emphasized that in convicting
Simmons of capital murder, the jury had already found that the murder was
committed during the course of a robbery and that he did so because he could not
extinguish his debt to Wolfe. The State also recapitulated its theory of
Simmons’s role in the murder in its final argument, suggesting among other
things that Simmons planned the murder, needed the money, and had “told
Sonny Milano to call Jeffrey Wolfe and come to his death.”
Additionally, the fact that Simmons locked Leaser in a box and stripped
her of her belongings also relates to Simmons’s pecuniary motives for the
murder. That Leaser was locked up and had her belongings taken, including
cash that she brought with her from Houston, is relevant to showing similar
motive and intent with respect to Wolfe’s murder. It was also during the time
that Leaser was trapped in the box that Simmons was able to strip Wolfe of
approximately $1,000. Therefore, some of the evidence that the State submitted
under the invalid aggravator was actually relevant to the pecuniary-gain
aggravator. The evidence regarding Leaser should not have been submitted
under the “great risk of death to many people” aggravator in the first place, as
evidenced by the State’s post-hoc justifications regarding the disposal of Wolfe’s
body creating the risk due to a “toxic mixture” and alligators. It is thus not
surprising that some of this evidence properly relates to another aggravator.
In contrast to the extensive evidence properly related to the pecuniary-
gain aggravator, the only evidence that must be excluded under the invalidated
aggravator is (1) the aggravator itself and (2) the State’s suggestion during
closing argument that Simmons planned to kill Leaser. While this latter
21
Case: 08-70048 Document: 00511587483 Page: 22 Date Filed: 08/30/2011
No. 08-70048
argument does have the potential to inflame the passions of the jury, it pales in
comparison to the more extensive and equally disturbing evidence that the jury
could consider under the pecuniary-gain aggravator. Further, in Nixon, we held
harmless the improper introduction of documentary evidence of the petitioner’s
prior rape conviction and the prosecutor’s two references to it during closing
argument when the bulk of the evidence and argument presented related to the
other aggravator. 405 F.3d at 331. Thus, the inflammatory nature of a certain
argument does not, in itself, make the error harmful. Here, the prosecutor spent
at least equal time emphasizing the pecuniary gain aggravator as the
invalidated aggravator. Moreover, some of the evidence emphasized during his
argument concerning the “great risk of death” aggravator could have been
properly emphasized by the prosecutor under the pecuniary-gain aggravator.
Contrary to the dissent, we find this Court’s decision in Nixon analogous
to the situation here. While the dissent notes that the State repeatedly
suggested that Simmons would have killed Leaser had she not escaped from the
box, the prosecutor made this argument twice during closing argument, the
latter quite briefly. Similar to this case, this Court in Nixon found the
introduction of an improper aggravating circumstance harmless when the
prosecution improperly introduced documentary evidence of the petitioner’s rape
conviction and referred to it twice during closing argument. Id. at 331. The
Court then contrasted this with the “brutal details” the jury was properly
allowed to consider, as here, under the other aggravator. Id. Although the
prosecution here emphasized the probability that Simmons would have killed
Leaser slightly more than the prosecutor in Nixon emphasized the rape in that
case, if anything, the actual evidence of the rape is more likely to significantly
prejudice a jury than the mere possibility that Simmons would have ultimately
killed Leaser. Given the similarities between the amount of improper evidence
22
Case: 08-70048 Document: 00511587483 Page: 23 Date Filed: 08/30/2011
No. 08-70048
and the prosecutor’s improper argument in both cases, we find Nixon hard to
distinguish in any meaningful way.
Because a substantial portion of the prosecution’s argument and the bulk
of the evidence referred to by the State during sentencing went to Simmons’s
intent to commit the murder for pecuniary gain during the course of a robbery,
we find that the “great risk of death” aggravator did not have a “substantial and
injurious effect” on the jury’s sentencing decision. We thus affirm the district
court’s denial of habeas on this ground.
B. Exclusion of Videotape as Mitigating Evidence
Simmons argues that the trial court’s denial of his motions to introduce a
videotape he made hours after the murder violates his Eighth and Fourteenth
Amendment rights to introduce all relevant mitigating evidence in the penalty
phase. In the videotape, addressed to his ex-wife and children, Simmons
expressed remorse without directly admitting the murder. He points to two
closely related lines of cases, each of which he claims supports his claim for
relief. First, he notes the Supreme Court’s command in Lockett v. Ohio, 438 U.S.
586 (1978), subsequently reemphasized in Eddings v. Oklahoma, 455 U.S. 104
(1982), that:
[T]he Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded
from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.
Lockett, 438 U.S. at 604–05. Second, he claims that the videotape’s exclusion
violates the principle announced in Chambers v. Mississippi, 410 U.S. 284
(1973), concerning guilt, and extended to capital sentencing in Green v. Georgia,
442 U.S. 95 (1979) (per curiam), that “the hearsay rule may not be applied
mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302.
Specifically, he argues that like the evidence in Green, the excluded videotape
23
Case: 08-70048 Document: 00511587483 Page: 24 Date Filed: 08/30/2011
No. 08-70048
was “highly relevant to a critical issue in the punishment phase of the trial,” and
“substantial reasons existed to assume its reliability.” Green, 442 U.S. at 97.
In Chambers, the Supreme Court considered the petition of a man
sentenced to life in prison for the murder of a police officer. 410 U.S. at 285.
Prior to the petitioner’s trial, another man, McDonald, gave a sworn confession
that he had committed the murder and had already confessed this to another
friend, before later retracting his confession. Id. at 287–88. At the petitioner’s
trial, the trial court denied his request to call McDonald as an adverse witness
as well as three witnesses to whom McDonald had confessed, finding that the
testimony of the other three would constitute hearsay. Id. at 291–92. The
Supreme Court reversed the petitioner’s conviction, holding that “the exclusion
of this critical evidence, coupled with the State’s refusal to permit [the
petitioner] to cross-examine McDonald, denied him a trial in accord with . . . due
process.” Id. at 302. The Court noted that “where constitutional rights directly
affecting the ascertainment of guilt are implicated, the hearsay rule may not be
applied mechanistically to defeat the ends of justice.” Id. Despite this broad
language, the Court noted that its holding did not establish new constitutional
principles, but instead that “under the facts and circumstances of this case,” the
petitioner was denied a fair trial. Id. at 302–03. The Court also noted that the
hearsay statements it ruled should have been admitted “were originally
made . . . under circumstances that provided considerable assurance of their
reliability.” Id. at 300.
The Supreme Court applied a similar principle in the context of capital
sentencing several years later. In Green, the Supreme Court reversed the death
sentence of the petitioner after the trial court excluded from the sentencing as
hearsay the testimony of a man, Moore, who claimed that another man had
confessed to committing the murder. 442 U.S. at 96. The Supreme Court held
that regardless of Georgia’s hearsay rule, “under the facts of this case,” the
24
Case: 08-70048 Document: 00511587483 Page: 25 Date Filed: 08/30/2011
No. 08-70048
testimony’s exclusion was a due process violation. Id. at 97. The Court noted
that the testimony was “highly relevant to a critical issue in the punishment
phase of the trial,” and “substantial reasons existed to assume its reliability.”
Id. These “substantial reasons” to find the testimony reliable were: (1) Moore’s
confession was made spontaneously to a close friend; (2) the confession was
corroborated by ample evidence; (3) the statement was against interest and
nothing suggested an ulterior motive; and (4) “[p]erhaps most important, the
State considered the testimony sufficiently reliable to use it against Moore, and
to base a death sentence upon it.” Id. Therefore, the Supreme Court held that
“[i]n these unique circumstances, ‘the hearsay rule may not be applied
mechanistically to defeat the ends of justice.’” Id. (quoting Chambers, 410 U.S.
at 302).
We have held that the application of these cases is quite limited. We have
noted that “Green is limited to its facts, and certainly did not federalize the law
of evidence. It does, however, indicate that certain egregious evidentiary errors
may be redressed by the due process clause.” Barefoot v. Estelle, 697 F.2d 593,
597 (5th Cir.), aff’d, 463 U.S. 880 (1983). In Edwards v. Scroggy, we considered
the trial court’s exclusion of testimony by the petitioner’s mother and priest that
the petitioner was sorry for his participation in the murder and, if his life were
spared, that he would “serve God” and “do something with his life in the future
in a very constructive way.” 849 F.2d 204, 211–12 (5th Cir. 1988). We found
that the exclusion was not unconstitutional under Green and Eddings, holding
that Mississippi’s exclusion of hearsay evidence “was not unnecessarily limiting,
nor did it operate to render [the petitioner’s] trial fundamentally unfair.” Id. at
212.
Given the limitations imposed by both the case law and the scope of our
review under AEDPA, we cannot say that the state court’s exclusion of the
videotape as hearsay was objectively unreasonable or that the exclusion
25
Case: 08-70048 Document: 00511587483 Page: 26 Date Filed: 08/30/2011
No. 08-70048
rendered the sentencing fundamentally unfair. The Supreme Court was clear
that its holdings in both Green and Chambers were based on unique and
disturbing facts: the exclusion of evidence about another person confessing to the
murder. While evidence of Simmons’s remorse would surely have been relevant
to the jury’s consideration of mitigating factors, the probative value of the
videotape pales in comparison to the excluded evidence in Green and Chambers.
More importantly, the statements in Simmons’s videotape did not have the
“considerable assurance of reliability” that the Supreme Court found in
Chambers or the “substantial reasons” to support its reliability that the Court
found in Green. Although the videotape here in which Simmons expressed some
remorse does contain some indicia of reliability, we cannot say that its reliability
is “substantial.” The videotape here (1) was not made as contemporaneously as
were the confessions in Green and Chambers; (2) was less of a statement against
interest, because Simmons did not directly confess to the crime and may have
had ulterior motives to create the tape; and (3) unlike the most important factor
in Green, the prosecution did not introduce the videotape as evidence during
trial. Additionally, while it is true that evidence of Simmons’s remorse was
important to the jury’s consideration of mitigating factors, the videotape was not
the sole avenue he had to provide such evidence. Simmons chose not to testify
at the sentencing hearing, at which time he could have expressed his remorse
in person. Introducing the videotape without testifying would have allowed
Simmons to show that he felt remorse without the ability to cross-examine him.
Additionally, the Supreme Court’s decisions in Eddings and Lockett do not
provide Simmons a path to relief. The Supreme Court has held that it is “clear”
and “well established” that the “sentencer may not refuse to consider or be
precluded from considering ‘any relevant mitigating evidence.’” Skipper v. South
Carolina, 476 U.S. 1, 4 (1986) (quoting Eddings, 455 U.S. at 114). The
Lockett/Eddings line of cases, however, deals with the exclusion of specific types
26
Case: 08-70048 Document: 00511587483 Page: 27 Date Filed: 08/30/2011
No. 08-70048
of evidence rather than specific items in evidence. In Lockett, the Supreme
Court struck down Ohio’s death penalty statute because it permitted the
sentencer to consider only three mitigating circumstances. 438 U.S. at 607–08.
Likewise in Eddings, the Supreme Court reversed the petitioner’s death
sentence because the trial judge refused to admit entire areas of mitigating
evidence: there, evidence relating to the circumstances of the petitioner’s
“unhappy upbringing and emotional disturbance.” 455 U.S. at 109, 113–15.
Here, the trial court did not disallow evidence that Simmons was remorseful for
his actions; instead, it excluded a particular item in which Simmons expressed
remorse because the court found it unreliable hearsay. Therefore, Simmons
cannot accurately claim that the jury was deprived of considering “as a
mitigating factor, any aspect of [his] character or record [or] any of the
circumstances of the offense.” Lockett, 438 U.S. at 604–05.
We do not, and cannot, today decide whether the videotape should have
been admitted as evidence during the sentencing hearing under Mississippi law.
See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law
questions.”). Instead, we can only decide whether the exclusion of the videotape
was an unreasonable determination in light of clearly established federal law.
Here, the facts of this case are easily distinct from the “unique” set of
circumstances faced by the Supreme Court in Green and do not involve a
categorical exclusion of mitigating evidence as in Lockett and Eddings. Because
the videotape’s exclusion was not such an egregious evidentiary error so as to
deny Simmons a fair sentencing hearing, we affirm the district court’s denial of
habeas on this ground.
IV. CONCLUSION
27
Case: 08-70048 Document: 00511587483 Page: 28 Date Filed: 08/30/2011
No. 08-70048
We find that neither of the two grounds of error that Simmons has
presented here entitle him to habeas relief. Therefore, we affirm the district
court’s denial of Simmons’s habeas petition.
AFFIRMED.
28
Case: 08-70048 Document: 00511587483 Page: 29 Date Filed: 08/30/2011
No. 08-70048
EMILIO M. GARZA, Circuit Judge, dissenting:
I agree with the majority that the State presented no evidence that could
have supported applying the “great risk of death to many people” aggravating
circumstance, and that the jury therefore should not have been instructed that
it could weigh that aggravating circumstance in its decision to impose the death
penalty. I also agree that this case would be unproblematic if the jury had been
instructed that the only potentially applicable aggravating circumstance was
that the petitioner (“Simmons”) committed the murder for pecuniary gain. The
only question, then, is whether the inclusion of the “great risk of death to many
people” instruction was harmless. I cannot say with any confidence that it was.
See O’Neal v. McAninch, 513 U.S. 432, 435 (1995) (“[W]hen a habeas court is in
grave doubt as to the harmlessness of an error that affects substantial rights, it
should grant relief.”). Accordingly, I dissent.
A trial court’s submission of an invalid aggravating factor in a capital case
is harmless “(a) if the sentence would have been the same had the
unconstitutional aggravator never been submitted to the jury, or (b) if the
sentence would have been the same had the . . . aggravating circumstance been
properly defined in the jury instructions.” Nixon v. Epps, 405 F.3d 318, 330 (5th
Cir. 2005) (citing Billiot v. Puckett, 135 F.3d 311, 319 (5th Cir. 1998)). We will
not consider submission of the aggravator sufficiently harmful to warrant
habeas relief unless the factor “can be said to have had a ‘substantial and
injurious effect on the verdict reached by the jury.’” Id. at 329 (quoting Brecht
v. Abrahamson, 507 U.S. 619, 623 (1993)). There must be “‘more than a mere
reasonable possibility that [the improper aggravating circumstance] contributed
to the verdict. It must have had substantial effect or influence in determining
the verdict.’” Id. at 330 (quoting Billiot, 135 F.3d at 318). “[I]f, after evaluating
the claim in light of the entire record, our minds are in ‘virtual equipoise as to
the harmlessness’ of the error, ‘we must conclude that it was harmful.’” Id.
29
Case: 08-70048 Document: 00511587483 Page: 30 Date Filed: 08/30/2011
No. 08-70048
(quoting Billiot, 135 F.3d at 318); see O’Neal, 513 U.S. at 435. If we are in “grave
doubt” about the effect of the error, we cannot deny relief on the ground that the
error was harmless. O’Neal, 513 U.S. at 435-37.
The trial court’s erroneous instruction alone does not give us much
indication of how much weight the jury may have given the risk of death to
others. The State, however, placed significant emphasis on that factor during
closing argument. Specifically, the State’s argument to the jury at sentencing
went into significantly more detail regarding what the jury might consider under
“great risk of death to many people,” focusing the jury’s attention on Charlene
Leaser’s predicament. Its discussion of aggravating circumstances began as
follows:
Aggravating, why he should receive [the death penalty]; mitigating,
why he shouldn’t. Aggravating circumstance in this case, number
one, is we submit to you he created a great risk of harm or death.
Think of what was in that box for about six or seven hours. Think
of what was going to happen to her. Think of what they consciously
did to Jeffrey Wolfe, knowing they were going to have to get rid of
everything, every piece of evidence including the body.
Simmons then objected to the argument as unsupported by the evidence. The
objection was overruled. The State continued:
Where does this all lead? What was he going to do with the
eyewitness to this crime? What do you think was happening?
Common sense. You have heard all the evidence. Based on
everything you heard, I think it is reasonable to infer, to believe
based on everything else, that this was going to happen to her. So,
that’s submitted to you. That’s submitted to you because we think
that was going to happen. I think you think it was going to happen.
You know it was going to happen.
This argument went well beyond the proper bounds of the “great risk of death
to many people” aggravating factor, urging the jury to sentence Simmons to
death based on facts that were not entitled to aggravating weight. After
30
Case: 08-70048 Document: 00511587483 Page: 31 Date Filed: 08/30/2011
No. 08-70048
broadening its discussion to include the pecuniary gain aggravating
circumstance, the State concluded by again referring to the treatment of Leaser
and again suggesting that that treatment was appropriate for consideration as
aggravating evidence:
Unanimously find the aggravating circumstances, pecuniary gain,
great risk of harm to many people. Think about Brooke. You go
here and you say those circumstances outweigh the mitigating.
Those mitigating circumstances do not outweigh. And I ask you to
return a penalty of death in this case. If it’s not imposed and the
circumstances warrant it, it’s no penalty at all.
It is not difficult to discern the State’s argument. Its discussion of aggravation
both opened and closed with emphasis on Simmons’s actions towards Leaser,
and the State discussed the “great risk of death to many” aggravator extensively.
The State repeatedly urged the jury to place aggravating weight on Simmons’s
treatment of Leaser and, in particular, the probability that he would have
eventually killed her.
I agree with the majority that it is appropriate to consider, as one factor
in our analysis, whether evidence that was given aggravating weight under an
improperly admitted factor would have been admissible even in the absence of
that factor. But I cannot agree that, simply because the brutal details of
Simmons’s treatment of Leaser were admissible, the erroneous instruction was
harmless. The majority suggests that this case is not meaningfully
distinguishable from Nixon v. Epps, in which we found an erroneously charged
aggravating circumstance harmless in light of the extensive “brutal details” on
which the jury could have based a sentence of death. 405 F.3d at 331. But the
jury in Nixon had been instructed that it could consider as an aggravating
circumstance that the capital offense was especially heinous, atrocious or cruel.
Id.; see MISS. CODE ANN. § 99-19-101(5)(h). In other words, the jury was
expressly permitted to give aggravating weight to the brutal details of the crime.
31
Case: 08-70048 Document: 00511587483 Page: 32 Date Filed: 08/30/2011
No. 08-70048
As the Mississippi Supreme Court has explained, though, a jury instructed only
as to the pecuniary gain aggravator, as this jury should have been, has “no way
under the instructions to base their sentence of death on any argument that the
crime was especially heinous.” Turner v. State, 732 So. 2d 937, 956 (Miss. 1999)
(en banc) (internal quotation marks omitted). Similarly, a jury instructed only
as to pecuniary gain could not base the sentence of death on the great risk of
death to many people. Even assuming that the majority is correct that
Simmons’s brutal treatment of Leaser is relevant to establishing the pecuniary
gain aggravator, it is relevant only insofar as it supports the inference of a
pecuniary motive. Simmons’s brutality to Leaser, any risk he created to her, and
any intent to eventually kill her could not have been given aggravating weight
in their own right.
It is entirely possible that the jury, properly instructed and acting within
the confines of those instructions, would have imposed the death penalty.
Certainly, Mississippi courts have sentenced others to death in cases where
pecuniary gain was the only aggravating circumstance. See, e.g., Turner v. State,
953 So. 2d 1063, 1076 (2007) (en banc); Byrom v. State, 863 So. 2d 836, 881-82
(Miss. 2003) (en banc). This jury, unfortunately, never had the opportunity to
decide whether the pecuniary gain aggravating circumstance alone outweighed
any mitigating circumstances. Making matters worse, the State aggressively
emphasized the risk Simmons posed to Leaser and urged the jury to consider
that risk under the improperly charged factor. In light of the record as a whole,
I cannot say with any confidence that the sentence was not substantially and
injuriously influenced by the submission of that improper aggravating
circumstance. I therefore respectfully DISSENT.
32