OF JUDGMENT: 04/25/2017
JACKSON COUNTY CIRCUIT COURT HON. ROBERT P. KREBS TRIAL JUDGE
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
GEORGE T. HOLMES STACY L. FERRARO ROBERT MICHAEL CUNNINGHAM
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KATY TAYLOR GERBER JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY: ANTHONY N. LAWRENCE III
GRIFFIS, C.J., BARNES AND CARLTON, P. JJ.
In 1994, sixteen-year-old Stephen McGilberry was indicted on
four counts of capital murder for the bludgeoning deaths of
Patricia Purifoy, his mother; Kenneth Purifoy, his
stepfather; Kimberly Self, his half-sister, and Kristopher
Self, his three-year-old nephew and Kimberly's son. On
February 8, 1996, after a jury trial in Jackson County
Circuit Court, McGilberry was convicted on all counts and
sentenced to death.
Following the United States Supreme Court's decision in
Roper v. Simmons, 543 U.S. 551 (2005)-holding it is
unconstitutional to impose capital punishment for crimes
committed before age eighteen-the trial court resentenced
McGilberry to life without eligibility for parole (LWOP) on
all four counts, with the sentences to run consecutively in
the custody of the Mississippi Department of Corrections.
In 2012, the Supreme Court held in Miller v.
Alabama, 567 U.S. 460 (2012), that imposing a mandatory
sentence of LWOP on an offender under the age of eighteen
violated the Eighth Amendment's prohibition against cruel
and unusual punishment. The Miller Court identified
several factors the sentencing authority must consider before
sentencing a juvenile offender to LWOP, stating:
Mandatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark
features-among them, immaturity, impetuosity, and failure to
appreciate risks and consequences. It prevents taking into
account the family and home environment that surrounds
him-and from which he cannot usually extricate himself-no
matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent
of his participation in the conduct and the way familial and
peer pressures may have affected him. Indeed, it ignores that
he might have been charged and convicted of a lesser offense
if not for incompetencies associated with youth-for example,
his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist
his own attorneys. . . . And finally, this mandatory
punishment disregards the possibility of rehabilitation even
when the circumstances most suggest it.
Id. at 477-78 (citations omitted). In light of
Miller's holding, McGilberry filed a motion to
vacate his sentences with the Mississippi Supreme Court in
2014. The supreme court granted McGilberry leave to file a
motion for post-conviction relief (PCR) in the trial court.
On November 23, 2015, the trial court denied McGilberry's
PCR motion in part, and deferred ruling in part until a
Miller resentencing hearing could be held. A motions
hearing was held on November 7, 2016, with McGilberry arguing
that he should be resentenced to life with eligibility for
parole and that he be resentenced by a jury. The court denied
McGilberry's motion to be resentenced by a jury; his
motion to be resentenced to life with eligibility for parole
was held in abeyance until after a hearing on December 6,
At the Miller hearing, the State offered the trial
transcript and testimony from two victim-impact witnesses.
McGilberry presented the expert testimonies of three
witnesses: Dr. Marc Zimmerman, Dr. Sarah Deland, and Dr.
Julie Teater. Dr. Zimmerman, an expert in forensic psychology
who had examined McGilberry in 2001, testified that it was
his belief McGilberry had been "neglected and
abused." He found McGilberry to be "more
mature" since 2001 and said he would not assess him as
"incorrigible." Dr. Zimmerman ...