COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 11/05/2007. TRIAL JUDGE: HON. ROBERT B. HELFRICH.
FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL, BY: GLENN S. SWARTZFAGER, SCOTT A. JOHNSON.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.
LAMAR, JUSTICE. PART I: WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. PART II: WALLER, C.J., AND COLEMAN, J., CONCUR. KITCHENS, J., CONCURS IN PART AND IN RESULT. KING, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., SPECIALLY CONCURS WITH PART II WITH SEPARATE WRITTEN OPINION JOINED IN PART BY KITCHENS, KING AND COLEMAN, JJ. RANDOLPH, P.J., CONCURS WITH PART I AND DISSENTS WITH PART II WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE AND CHANDLER, JJ.; WALLER, C.J., JOINS IN PART. KITCHENS, J., CONCURS IN PART AND IN RESULT WITH PART II AND DISSENTS WITH PART I WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. PIERCE, J., CONCURS WITH PART I AND DISSENTS WITH PART II WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND CHANDLER, J.; WALLER, C.J., JOINS IN PART.
NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST CONVICTION
¶1. Roger Gillett was convicted of two counts of capital murder and sentenced to death on each. This Court affirmed his convictions and sentences on direct appeal in Gillett v. State, 56 So.3d 469 (Miss. 2010), cert. denied, 132 S.Ct. 844, 181 L.Ed.2d 552 (2011). Gillett now petitions for post-conviction relief, seeking permission to proceed in the trial court. Gillett raises six issues, which we have organized as follows:
(1) The underlying capital-murder aggravator of robbery was improperly expanded;
(2) Conviction of capital murder under the " continuous-action doctrine" was unconstitutional, as Gillett was not given required fair notice;
(3) Gillett's trial counsel were ineffective in failing to investigate Gillett's background and to present an adequate mitigation case;
(4) Gillett's trial counsel were ineffective in failing to object to prosecutorial misconduct during the sentencing portion of his trial;
(5) Gillett's due-process rights were violated when the Mississippi Supreme Court reweighed the aggravating and mitigating factors; and,
(6) Cumulative error.
¶2. This Court requested supplemental briefing from the parties on various issues related to Gillett's sentencing and heard oral arguments. We find that issues one and two are without merit and will be addressed in Part I of this opinion; however, we find that, under issue five, Gillett's due-process rights were abridged in sentencing, which will be addressed in Part II of this opinion. Therefore, we grant Gillett's petition in part and deny in part, vacate his sentences of death, and remand this case to the circuit court for a new sentencing hearing. Because issue five is dispositive, requiring reversal of Gillett's sentences, we do not discuss his other claims raised in issues three, four, and six related to the sentencing phase of his trial.
¶3. Gillett, along with his codefendant Lisa Chamberlin, killed Vernon Hulett and Linda Heintzelman in Mississippi. Gillett and Chamberlin then drove Heintzelman's truck to Kansas, with the dismembered bodies of their victims stuffed in a freezer in the back of the truck. Gillett was arrested in Kansas. While he was awaiting extradition to Mississippi, Gillett was convicted of aggravated escape.  After he was returned to Mississippi, Gillett was tried and convicted of two counts of capital murder. The capital-murder convictions were based on an underlying robbery. The jury found four aggravating factors, including that Gillett previously had been convicted of a felony involving the use of threat or violence to the person, based on his conviction for aggravated escape in Kansas. The jury found that the mitigation evidence presented during the sentencing phase did not outweigh the aggravating factors and sentenced Gillett to death.
STANDARD OF REVIEW
¶4. Post-conviction-relief proceedings have become " part of the death penalty appeal process."  " The standard of review for capital convictions and sentences is 'one of " heightened scrutiny" under which all bona fide doubts are resolved in favor of the accused.'"  " What may be
harmless error in a case with less at stake becomes reversible error when the penalty is death." 
¶5. Gillett argues that the trial court erred in giving Jury Instructions S-5 and S-6, because the instructions improperly expanded the underlying aggravating factor of robbery in that they did not define " intervening time" or " continuous chain of events," and that his trial counsel was ineffective for not raising this issue at trial or on direct appeal. Gillett further argues that the trial court erred in allowing Jury Instructions S-5 and S-6 because they violated the Due Process Clause of the Fourteenth Amendment by allowing the jury to find Gillett committed robbery at the time of the murders based on a " continuous chain of events" without giving him sufficient notice, and that his trial counsel was ineffective for not raising this issue at trial or on direct appeal.
¶6. On direct appeal, we addressed Gillett's claim that the trial court erred in allowing Jury Instructions S-5 and S-6 because they did not require the jury to find that Gillett had the intent to commit robbery before the murders occurred. We also addressed whether the jury was instructed improperly on the theory of " one continuous chain of events."  We explained that intent to rob may be inferred from facts surrounding the crime and that " Mississippi follows the 'one-continuous-transaction rationale' in capital cases" such that " the crime of capital murder is sustained" where " the two crimes [e.g., murder and robbery] are connected in a chain of events and occur as part of the res gestae."  Therefore, we concluded that Jury Instructions S-5 and S-6 were properly given.
¶7. Gillett's argument that the trial court erred in allowing the underlying felony of robbery to be expanded is barred by res judicata, as this claim was raised and addressed on direct appeal. Additionally, Gillett cannot relitigate these claims under the guise of ineffective assistance of counsel. Furthermore, this argument again challenges the propriety of Jury Instructions S-5 and S-6, already addressed on direct appeal. As we previously determined that these instructions were proper, any failure to raise this issue on direct appeal does not constitute ineffective assistance of counsel. These assignments of error are without merit.
¶8. On direct appeal, Gillett argued that the trial court erred in allowing the jury to consider whether he was previously convicted of a felony involving the threat or use of violence. This Court unanimously determined that the " previous-violent-felony" aggravating factor based on Gillett's Kansas conviction for escape was an invalid aggravator and should not have been presented to the jury. Because not
every escape can be considered a crime of violence under the Kansas statute and " [t]he facts surrounding and supporting the Kansas conviction for attempted aggravated escape are unknown," we found that the State failed to present " sufficient evidence to support the 'previous violent felony' jury instruction."  This Court then concluded that the mitigating evidence presented " [did] not outweigh the remaining three aggravating circumstances--'avoiding arrest,' 'especially heinous capital offense,' and 'felony murder'--all of which are supported by the evidence. Therefore, the inclusion of the invalid 'previous violent felony' aggravator was harmless error."  Gillett argued in his motion for rehearing and now argues in his post-conviction petition that this Court's reweighing violates his due-process rights under the United States and Mississippi Constitutions, citing Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006).
¶9. The State makes a compelling argument that this issue is procedurally barred as res judicata, claiming that this Court addressed it on direct appeal, and that Gillett unsuccessfully challenged the Court's " reweighing" in his motion for rehearing. We first address the State's argument.
¶10. Specifically, the State argues that this issue is barred under Mississippi Code Section 99-39-21(3) (Rev. 2007), part of Mississippi's Uniform Post-Conviction Collateral Relief Act (" UPCCRA" ), which provides that " the doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal." But, contrary to the State's argument, Gillett could not assign error to this Court's " reweighing" until this Court determined one aggravator to be invalid and engaged in the reweighing of aggravating and mitigating factors. Gillett could not have raised this assignment of error on direct appeal.
¶11. Furthermore, this Court has specifically " recognized [an] exception to procedural bars for claims asserting . . . denial of due process at sentencing."  Gillett argues that he was denied due process in sentencing, and, therefore, under Rowland II, his claim is not time-barred nor barred by res judicata. As such, we will consider this issue.
¶12. Gillett argues that his death sentences must be vacated because otherwise inadmissable evidence was put before his sentencing jury in support of the invalid aggravating factor, citing the U.S. Supreme Court's decision in Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723. There is no dispute that Gillett's sentencing jury heard damaging evidence - not otherwise admissible - that he had been convicted of the felony crime of escape and, significantly, the jurors were instructed that it could be considered as a violent felony and weighed with other aggravating factors in sentencing. Gillett argues that this is a constitutional error that cannot be cured by harmless-error analysis or reweighing. Rather, he argues that Brown mandates reversal of his death sentence.
¶13. Indeed, in Brown, the Supreme Court said that, in situations in which an invalidated aggravator " allowed the sentencer to consider evidence that would otherwise not have been before it, due process
would mandate reversal . . . ."  Reversal is required because, when a jury weighs an invalid factor in its decision, " skewing will occur, and give rise to constitutional error" if the jury " could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor." 
¶14. But, prior to Brown, the Supreme Court also had held explicitly in Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), that an appellate court could constitutionally cure an error caused by an invalidated aggravator either by reweighing the aggravating and mitigating evidence or by performing a constitutional harmless-error analysis. We find nothing in Brown that would overrule Clemons.
¶15. Admittedly Brown's language leaves ambiguity as to whether it applies to both " weighing" states, such as Mississippi, or only to the " nonweighing" states that Brown specifically addressed. But, regardless of whether Brown has application to weighing states, we read Brown to hold nonweighing states to the same directives that previously had applied to weighing states - that is, when the invalidated aggravator introduces evidence to the jury that it otherwise would not have considered, the sentence is unconstitutional, and due process requires reversal unless the appellate court either reweighs the aggravating and mitigating factors or finds harmless error beyond a reasonable doubt. In other words, " Brown. . . deals only with the threshold matter of deciding when constitutional error has resulted from reliance on invalid aggravators, not with how appellate courts can remedy the error short of resentencing."  We reject Gillett's argument that the introduction of evidence in support of the invalid aggravating factor automatically mandates reversal.
Amendment to Mississippi Code Section 99-19-105
¶16. In 1994, the Mississippi Legislature amended Section 99-19-105 to provide:
Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error, or both.
¶17. This amendment followed pronouncements from this Court that it was without statutory authority to reweigh aggravating and mitigating circumstances or to perform a harmless-error analysis because " [f]inding aggravating and mitigating circumstances, weighing them, and ultimately imposing a death ...