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McGilberry v. State

Court of Appeals of Mississippi

January 15, 2019

STEPHEN VIRGIL McGILBERRY A/K/A STEPHEN McGILBERRY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE 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 II

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER JOSEPH SCOTT HEMLEBEN

          DISTRICT ATTORNEY: ANTHONY N. LAWRENCE III

          BEFORE GRIFFIS, C.J., BARNES AND CARLTON, P. JJ.

          BARNES, P.J.

         ¶1. 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.[1]

         ¶2. 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.

         ¶3. 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.

         ¶4. 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, 2016.[2]

         ¶5. 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 ...


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