Roger Lee Gillett
was one of two people charged in the March 2004 deaths of Linda
Heintzelman and Heintzelman's boyfriend, Vernon Hulett, both of
Hattiesburg. Their bodies were found inside the freezer at an
abandoned farm in Russell County, Kan., by law officers who were
searching for drugs. Gillett's former girlfriend and accomplice in
the murders, Lisa Jo Chamberlin, received the same fate during her
trial in August 2006.
Gillett was sentenced to death on November 3,
Hattiesburg death row
inmate loses appeal
December 22, 1011
The U.S. Supreme Court has declined to hear an
appeal from Roger Lee Gillett, who was sentenced to death for his
role in the 2004 slaying of a Hattiesburg couple.
The Mississippi Supreme Court upheld Gillett's
capital murder conviction in 2010.
The nation's high court this past week turned
Gillett's request to look at his appeal.
Gillett was convicted in 2007 in Forrest County
on two counts of capital murder for his role in the deaths and the
transporting of their bodies to Kansas in a freezer.
The Mississippi court rejected Gillett's
argument that his decision to flee to Kansas in the couple's truck
was unrelated to the slayings.
Prosecutors countered that Gillett and his
girlfriend, Lisa Jo Chamberlin, fled the state to cover their
tracks and hide the crime.
In 2004, according to court documents, Kansas
authorities learned Chamberlin and Gillett were in possession of a
stolen vehicle and were manufacturing methamphetamine at a farm
near Russell, Kan.
Officers arrested the couple at the home where
they were staying after a search found illegal drugs. A second
search uncovered a freezer in which a dismembered body was found.
The body was determined to be Vernon Hullett, Gillett's cousin.
When they pulled the body out, Linda Heintzelman's frozen body was
Prosecutors said Gillett and Chamberlin were
living with the victims in Hattiesburg at the time of the
Chamberlin, in a taped confession played at her
trial, said the victims were killed because they wouldn't open a
safe in Hulett's home, according to the court record. Her appeal
was turned down separately in October by the U.S. Supreme Court.
Prosecutors contended that Gillett's fleeing
with the bodies was part of a continuous criminal act.
The Mississippi court follows the "one
continuous transaction" rationale in capital cases. Therefore,
evidence that Gillett stole the truck and fled to avoid arrest
could be used to support a capital murder conviction.
In Mississippi, capital murder is defined as
murder committed along with another crime; in this case, robbery.
Gillett gets death
November 5, 2007
The fate of Roger Gillett was
finally decided Saturday when a jury sentenced him to death for
two counts of capital murder after more than 2 hours of
Gillett, 33, was found guilty Friday in the
slayings of his cousin, Vernon Hulett, and Hulett's girlfriend
Linda Heintzelman in March 2004.
For the victims' families it was an ending they
had been waiting 3 years for.
"I don't really want him dead. I want
everything taken away from him," said Caroline Hester, Hulett's
Forrest County Circuit Court Judge Bob Helfrich
set Gillett's execution for Dec. 19 at the Mississippi Department
Gillett will have the right to an appeal,
defense attorneys said.
Gillett's former girlfriend and accomplice in
the murders, Lisa Jo Chamberlin, received the same fate during her
trial in August 2006.
Together, Gillett and Chamberlin tortured then
mutilated the bodies of the victims before stuffing them in a deep
freezer and transporting them to Russell, Kan., in a stolen truck
owned by Heintzelman.
The bodies were discovered by agents with the
Kansas Bureau of Investigations during a drug investigation on a
farmstead owned by Gillett's grandfather.
Speculation arose that Chamberlin may be called
as a witness in Gillett's trial, but District Attorney Jon Mark
Weathers denied those claims.
"I think at one time (that) might have been a
possibility, but she never agreed to it," Weathers said.
Saturday's sentencing proceedings were the 1st
time the defense called any witnesses to stand. All eight spoke on
behalf of Gillett's morale character in hopes of curtailing the
jury from delivering a death sentence.
Dick Allison, former pastor of University
Baptist Church, told jurors he met Gillett through the prison
"Roger wanted very much to be baptized,"
Allison said. "Roger's faith is absolutely genuine. I believe
fully that his life, even in prison, can be a benefit to many
The most emotional testimony Saturday came from
Gillett's aunt, Marsha Gillett, and his mother, Vicki Hulett, who
both shed tears during their depositions.
In her 2-hour pre-recorded testimony, Vicki
Hulett began crying at just the mention of her son's name.
When defense attorney James Lappan quizzed her
about Vernon, she said, "I think about him all the time. I loved
him very much."
Vicki Hulett's testimony was chaperoned by a
parade of childhood photos taken of Gillett as a baby and on into
"When Roger was a small child, my brother was
an alcoholic," Marsha Gillett told jurors. "He was more like my
son than my nephew. It's very hard for my family to have to live
In his closing arguments at the sentencing
Saturday, Assistant District Attorney Ben Saucier asked jurors not
to be swayed in their decision by baby pictures and the witnesses'
tales of the defendant's melancholy childhood.
"Lots of people have hard times," Saucier said.
"Does that separate you from anyone else?
"All I saw (today) was people who knew him. I
think everyone in this courtroom can get a group of people
together to say 'Can you spare his life?'" Saucier said.
After the verdict was announced and Gillett
escorted to the Forrest County Jail in handcuffs, family members
shared hugs with Weathers for helping to bring justice to their
"The hardest part was knowing what the family
was going through," Weathers told reporters. "I'm going to sleep
Hattiesburg man found
guilty of capital murder
Saturday, November 3, 2007
HATTIESBURG (AP) — A jury sentenced Roger Lee
Gillett to death Saturday after he was convicted of two counts of
capital murder in the killing of a Hattiesburg couple and
transporting their bodies to Kansas in a freezer.
A Forrest County jury convicted Gillett on
Friday in the deaths of his cousin Vernon Hulett and Hulett’s
girlfriend Linda Heintzelman in 2004. The jury reconvened Saturday
to consider Gillett’s sentence — either the death penalty or life
in prison — and chose death after two hours of deliberations.
Judge Bog Helfrich set his execution date for
Dec. 19, though death sentences are automatically appealed.
Lisa Jo Chamberlin, Gillett’s girlfriend at the
time, was convicted of capital murder in August 2006. She is now
one of three women on death row in Mississippi.
Gillett and Chamberlin were arrested March 29,
2004, after lawmen raided an abandoned farm house near Russell,
Kan., and found the dismembered bodies of Hulett and Heintzelman
in a freezer. The farm was owned by Gillett’s grandfather.
The freezer was in the courtroom during
Prosecutors said Gillett and Chamberlin were
living with Hulett and Heintzelman in Hattiesburg at the time of
Chamberlin, in a taped confession played at her
trial, said the victims were killed because they wouldn’t open a
safe in Hulett’s home, according to the court record.
In Gillett’s trial in Hattiesburg, defense
attorneys did not call any witnesses after the prosecution rested
its case Friday. Gillett told Circuit Judge Bob Helfrich that he
did not want to testify.
‘‘They came so close to the perfect murder,’’
Assistant District Attorney Ben Saucier said in his closing
‘‘It was absolutely incredible that he got
caught when he did.’’
Supreme Court of Mississippi
Gillett v. State
Roger Lee GILLETT v. STATE of Mississippi.
July 01, 2010
Office of Capital Defense Counsel by James
Lappan, Jonathan M. Farris, attorneys for appellant.Office of the
Attorney General by Patrick Joseph McNamara, Jr., attorney for
¶ 1. Roger Gillett was convicted and sentenced
to die by lethal injection for the capital murders of Linda
Heintzelman and Vernon Hulett during the commission of a robbery.
Aggrieved by these convictions and sentences, Gillett now brings
his direct appeal to this Court. Finding no reversible error, we
affirm his convictions and sentences.
¶ 2. The investigation into the deaths of Linda
Heintzelman and Vernon Hulett began in Russell, Kansas. On March
29, 2004, Debbie Milam, Roger Gillett's aunt, informed the Russell
County, Kansas, Sheriff's Department that, on the previous day,
Gillett had manufactured illegal narcotics at his grandfather's
farm in rural Russell County (hereinafter “the Gillett farm”) and
also had stored at the farm a pickup truck he had stolen.1
The Sheriff's Department contacted Agent Matthew Lyon, a
narcotics investigator with the Kansas Bureau of Investigation
(KBI), for assistance. Based on information received from Milam,
as well as other corroborating information, Lyon sought out and
obtained two search warrants: one to search the residence where
Gillett was staying, located at 606 North Ash Street, Russell,
Kansas, and one to search the Gillett farm, located at 5482 190th
Street in rural Russell County, Kansas.
¶ 3. Upon executing the search warrant on 606
North Ash Street and locating illegal narcotics at the
residence—as well as having reason to believe that Gillett had
been involved in an assault, the manufacture of illegal narcotics,
and a robbery—officers from the Sheriff's Department located and
arrested Gillett, along with his codefendant, Lisa Chamberlin (see
Chamberlin v. State, 989 So.2d 320 (Miss.2008)), at a local park.
The officers transported Gillett to the Russell County Jail,
where he was interviewed by Agent Lyon. Before commencing the
interview, Lyon showed Gillett a copy of the search warrant for
606 North Ash Street and read Gillett his Miranda 2
rights. During the interview, Gillett told Lyon that he recently
had hitchhiked back to Kansas from Hattiesburg, Mississippi, where
he had been staying with his relative, Vernon Hulett, for one or
two months. He also told Lyon that he had not been up to the
Gillett farm in months. Then, upon Lyon telling Gillett that a
white pickup truck with Mississippi tags had been reported stolen,
Gillett stated that he needed to speak with an attorney.
However, as Lyon was preparing to take Gillett back to jail
because Gillett had invoked his right to an attorney, Lyon told
Gillett what he was being charged with and “that there might be
some more charges that come out of it.” Curious, Gillett asked,
“Like?” and then withdrew his request for an attorney in order to
learn more about the information Lyon possessed. The interview
then continued for a significant period of time until Gillett
again invoked his right to an attorney.
¶ 4. That same day, March 29, 2004, the search
warrant on the Gillett farm also was executed. In a metal shed
at the farm, officers located a white pickup truck that was found
to be registered to Linda Heintzelman (Vernon Hulett's live-in
companion), as well as items consistent with the manufacture of
methamphetamine. In a wooden shed at the farm, officers located
a freezer that was bound shut with duct and electrical tape.
When officers opened the freezer, they saw a dead body or bodies
inside. The officers then temporarily stopped the search until
they could obtain a homicide search warrant. Once they had
secured a homicide search warrant on the farm, they removed from
the freezer what turned out to be two bodies, a male and a female,
and prepared them for transportation to the pathologist's
¶ 5. Gillett was not interviewed further
regarding the bodies found in the freezer; however, Chamberlin
gave officers a statement and led them to a location in a local
landfill where, according to her, she and Gillett had disposed of
trash bags containing property associated with the murder victims.3
The seven trash bags that the officers collected from the
landfill contained, among other things, Vernon Hulett's and Linda
Heintzelman's wallets containing their drivers licenses, Hulett's
work shirt and work pants, both with his name printed on them, a
crocheted pillow appearing to have blood on it (later found to
match other pillows on Hulett's and Heintzelman's bed in their
Hattiesburg home), a Hattiesburg phone book, and a pair of New
Balance tennis shoes with blood-like stains on them.
¶ 6. Based on the evidence recovered, the
Kansas officers contacted the Hattiesburg police and asked them to
check the residence shared by Vernon Hulett and Linda Heintzelman,
located at 908 South Gulfport Street, Hattiesburg, Mississippi.
Hattiesburg officers subsequently searched the residence and
found, among other things, carpeting removed from the floor and
rolled up, multiple blood-like stains throughout the house, a
pried-open safe, and a shoe print in a reddish stain. The
Mississippi Crime Laboratory determined that one of the New
Balance shoes recovered from the garbage bags at the Kansas
landfill was the source of the shoe print found at the 908 South
Gulfport Street residence. The Mississippi Crime Laboratory also
determined that blood on the shoe was Linda Heintzelman's blood.
¶ 7. At trial, it was revealed that Gillett and
Chamberlin had driven a blue Mitsubishi Eclipse from Kansas to
Mississippi around the end of February 2004, and had been staying
at the Hattiesburg home of Vernon Hulett, Gillett's cousin, and
Linda Heintzelman, Hulett's companion. One day, while Gillett,
Chamberlin, Hulett, and Heintzelman were on their way to the
Mississippi Gulf Coast, with the couples driving their respective
vehicles, Chamberlin's and Gillett's Mitsubishi was damaged in a
wreck, allegedly caused by Heintzelman cutting them off and
forcing them into a ditch. Gillett was very angry about the car
wreck, even telling Hulett's mother after the wreck that he,
Gillett, would like to take Heintzelman and push her through a
¶ 8. The last time anyone saw Hulett and
Heintzelman alive was on March 19, 2004. When Hulett's nephew
came by Hulett's house on March 20, he found only Gillett and
Chamberlin there. Gillett told the nephew that Hulett and
Heintzelman had gone to the Coast with a friend. Similarly, when
the nephew stopped by Hulett's house on March 21, he found only
Gillett and Chamberlin there. While visiting with Gillett and
Chamberlin that day (March 21), the nephew noticed that the
carpeting had been ripped up, and when he inquired about it,
Gillett told him that Hulett had asked him to rip it up because
Hulett had come into some money and was bringing new carpeting
back with him from the Coast. The nephew also saw Gillett and
Chamberlin in Hattiesburg on March 23.
¶ 9. Shortly thereafter, Gillett and Chamberlin
arrived in Kansas, driving Heintzelman's white pickup truck. In
the bed of the truck, there was a rectangular object that looked
like boxes, covered by a tarp. In Kansas, Gillett informed two
of his friends that he had taken the truck from its owners, that
he had killed the owners, and that the owners were in the back of
One of the friends to whom Gillett confessed soon thereafter went
to the Gillett farm and observed in one of the farm's sheds a
freezer that, according to him, looked like what might have been
under the tarp in the back of the white pickup truck that Gillett
had been driving. At the trial, Hulett's mother identified the
freezer found at the farm to be the freezer that belonged to
Hulett and Heintzelman, and she stated that she had last seen the
freezer at Hulett's and Heintzelman's residence in Hattiesburg.
Further, a KBI forensic scientist found Gillett's fingerprints on
the freezer, as well as on both the “sticky” and “shiny” sides of
the tape that bound the freezer shut.
¶ 10. The pathologist who conducted the
autopsies of Hulett and Heintzelman found Heintzelman to have
suffered at least sixty-nine separate injuries prior to death,
including injuries caused by blunt-force trauma, cutting,
stabbing, and suffocation. The pathologist summarized:
Ms. Linda Heintzelman died from the multiple
injuries that were inflicted upon her. Those included
sharp-force injuries predominantly to the torso. Those included
blunt-force injuries predominantly to the head. There were also
sharp-force injuries to the neck. And there was also a component
of asphyxiation or lack of oxygen getting into the airway.
The pathologist found Hulett to have suffered
numerous injuries as well, predominantly to his face and head.
The pathologist concluded that Hulett's death was the result of
“blows that went to the left side of the head [,] fractured the
skull and then damaged the brain.” Hulett was found in the
freezer, and presented to the pathologist, with his arms severed
at the shoulder joints and his head severed at the neck.
¶ 11. Gillett was indicted on two counts of
capital murder in the deaths of Vernon Hulett and Linda
Heintzelman. On October 15, 2004, in the Circuit Court of
Forrest County, Mississippi, Gillett was appointed counsel and
arraigned. Gillett filed four pretrial motions to suppress: a
motion to suppress his arrest; a motion to suppress his
statement; a motion to suppress the search of the residence where
he was staying in Kansas, located at 606 North Ash Street; and a
motion to suppress the search of the Gillett farm. On January
22, 2007, these motions were heard, with several Kansas law
enforcement officers testifying regarding Gillett's arrest, his
statement, and the searches of 606 North Ash Street and the
Gillett farm. The trial court denied all four suppression
motions. On subsequent dates, the trial court heard and ruled on
(or withheld ruling on) numerous other defense motions. These
included a motion, relevant to an issue discussed below, arguing
that the State should be prohibited from introducing photographs
of the victims' dead bodies. The trial court denied that motion.
On September 20, 2007, the trial court held a Daubert 5
hearing regarding the reliability of the testimony of one of the
State's witnesses, William Jones, a DNA scientist from the
Mississippi Crime Laboratory. The trial court found that Jones met
the Daubert criteria and denied Gillett's motion to exclude Jones'
¶ 12. After a four-day trial, spanning from
October 30, 2007, to November 2, 2007, during which Gillett did
not put on any evidence, the jury found Gillett guilty of two
counts of capital murder. On November 3, 2007, the penalty phase
was conducted. Gillett called four witnesses (two religious
leaders who had provided Gillett with religious guidance while he
was incarcerated, one of Gillett's fellow inmates, and one of
Gillett's aunts) and also played videotape testimony of four
additional witnesses (a former employer of Gillett, a former
friend of Gillett, the woman who had been Gillett's grandfather's
live-in companion before he died, and Gillett's mother). At the
conclusion of the penalty phase, the jury unanimously found beyond
a reasonable doubt that four aggravating circumstances existed
with respect to each victim,6
and that Gillett should suffer death in both counts of capital
murder. On January 25, 2008, the trial court denied Gillett's
motion for a new trial, or in the alternative, a motion for a new
sentencing hearing. Gillett then timely appealed to this Court.
¶ 13. This Court reviews convictions upon
indictments for capital murder and sentences of death with
heightened scrutiny. Loden v. State, 971 So.2d 548, 562
(Miss.2007). Under this standard of review, “all doubts are to
be resolved in favor of the accused because what may be harmless
error in a case with less at stake becomes reversible error when
the penalty is death.” Id. (internal citations omitted).
Prefatory choice-of-law question.
¶ 14. Gillett argues that this Court must
determine whether the law of Kansas or the law of Mississippi
applies to the adjudication of his first four claims (which regard
his suppression motions) or must remand this matter to the trial
court for that determination. Gillett submits that there is no
Mississippi case precedent discussing this question. Gillett
thus provides citations to cases in other jurisdictions, some of
which hold that the law of the place where the transaction (e.g.,
search, seizure, arrest) occurred should apply, and others holding
that the law of the jurisdiction where remedy is sought should
apply. Gillett submits that his motions to suppress are
meritorious under the law of the evidence-gathering state
(Kansas), under the law of the forum state (Mississippi), and
under federal law; however, Gillett contends that the most
rational path for the adjudication of foreign searches and
seizures is to apply the law of the place where the transaction
¶ 15. Neither party argues that applying the
law of Mississippi rather than the law of Kansas, or vice versa,
would result in different conclusions regarding Gillett's motions
to suppress. Therefore, this choice-of-law question need not be
I. Whether the trial court erred in denying
Gillett's motion to suppress the warrantless arrest of Gillett and
the seizures incident thereto.
¶ 16. Gillett's first assignment of error is
that the trial court erred in denying his motion to suppress his
warrantless arrest and the seizures incident thereto. On March
29, 2004, Sergeant Kelly Schneider of the Russell County Sheriff's
Department learned from interviewing Debbie Milam, Gillett's aunt,
and Kathy Thacker, Milam's housemate, that Gillett had threatened
Milam with a gun and was in possession of a stolen vehicle and
materials used to manufacture methamphetamine. Schneider
contacted KBI agent Matthew Lyon regarding what Thacker and Milam
had told him. Based on the information received from Milam, as
well as information from other sources, Lyon then applied for and
obtained a search warrant for 606 North Ash Street, Russell,
Kansas—the residence of Patty Hulett, Gillett's aunt, where
Gillett was staying while in Russell. The warrant listed five
felony crimes associated with methamphetamine, which Lyon had
probable cause to believe had been or were being committed.
¶ 17. Schneider participated in the execution
of the search warrant on 606 North Ash Street, assigned to duty on
the perimeter. When officers entered the residence, they located
narcotics, but Gillett was not present at the residence.
Schneider (who was on duty outside the residence) was informed
that narcotics had been located and that he, along with other
officers, should attempt to locate and arrest Gillett. The
County Attorney instructed the officers to arrest Gillett without
a warrant because of the quantity of narcotics found at 606 North
Ash Street and because of the threat made to Milam. Officers
located Gillett at a public park in Russell and arrested him at
the park, based on probable cause. Schneider informed Gillett
that he was being arrested for “narcotics violations.” After
Gillett's arrest, Gillett was transported to the Russell County
Jail where he was shown a copy of the search warrant for 606 North
Ash Street, which listed the crimes he was suspected of having
committed: manufacture of methamphetamine, conspiracy to
manufacture methamphetamine, possession of methamphetamine,
possession of drug manufacturing paraphernalia, and possession of
¶ 18. The following day, March 30, 2004, a
warrant for Gillett's arrest was obtained, listing the above
charges. Kelly Ralston, Special Agent in Charge with the KBI,
testified that it is not unusual in Kansas for officers to make an
arrest on probable cause and later complete the formal paperwork;
in fact, a Kansas statute specifically allows for arrests based
on probable cause. See Kan. Stat. Ann. § 22–2401 (Rev.2007).
¶ 19. Kansas Statutes Section 22–2401
A law enforcement officer may arrest a person
under any of the following circumstances:
(a) The officer has a warrant commanding that
the person be arrested.
(b) The officer has probable cause to believe
that a warrant for the person's arrest has been issued in this
state or in another state for a felony committed therein.
(c) The officer has probable cause to believe
that the person is committing or has committed:
(1) A felony; or
(2) A misdemeanor, and the law enforcement
officer has probable cause to believe that:
(A) The person will not be apprehended or
evidence of the crime will be irretrievably lost unless the person
is immediately arrested;
(B) the person may cause injury to self or
others or damage to property unless immediately arrested; or
(C) the person has intentionally inflicted
bodily harm to another person.
(d) Any crime, except a traffic infraction or
cigarette or tobacco infraction, has been or is being committed in
the officer's view.
Kan. Stat. Ann. § 22–2401 (Rev.2007).
¶ 20. Gillett argues that it was
unconstitutional and a violation of Kansas Statutes Section
22–2401 for the Kansas officers to arrest him without a warrant,
because the arresting officer told him he was being arrested for a
“narcotics violation,” without elaborating as to whether the
violation was a misdemeanor or a felony, and because he did not
possess narcotics in the arresting officer's presence. Gillett
then argues that, because the arrest was unlawful, the items
seized from his person incident to his arrest, as well as the
custodial statement he provided incident to his arrest, should
have been suppressed.
¶ 21. When reviewing a trial court's denial
of a motion to suppress, this Court adopts a mixed standard of
review. Dies v. State, 926 So.2d 910, 917 (Miss.2006).
Determinations of reasonable suspicion and probable cause are
reviewed de novo. Id. (citing Ornelas v. United States, 517 U.S.
690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Floyd v. City
of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)). However,
this Court should “take care both to review findings of historical
fact only for clear error and to give due weight to inferences
drawn from those facts by resident judges and local law
enforcement officers.” Floyd, 749 So.2d at 113 (citing Ornelas,
517 U.S. at 699, 116 S.Ct. 1657). “Thus, this Court is restricted
to a de novo review of the trial judge's findings using the
applicable ‘substantial evidence’/'clearly erroneous' standard.”
Floyd, 749 So.2d at 113. Finally, this Court reviews the
admission or exclusion of evidence for abuse of discretion.
Floyd, 749 So.2d at 113.
¶ 22. The United States Supreme Court has
Both the standard for arrest and detention have
been derived from the Fourth Amendment and its common-law
antecedents. The standard for arrest is probable cause, defined
in terms of facts and circumstances ‘sufficient to warrant a
prudent man in believing that the (suspect) had committed or was
committing an offense.’ This standard, like those for searches
and seizures, represents a necessary accommodation between the
individual's right to liberty and the State's duty to control
Gerstein v. Pugh, 420 U.S. 103, 111–12, 95
S.Ct. 854, 43 L.Ed.2d 54 (1975) (internal citations omitted).
This Court has held that:
the test for probable cause in Mississippi is
totality of the circumstances․ This Court has further defined
probable cause as: “a practical, nontechnical concept, based upon
the conventional considerations of every day life on which
reasonable and prudent men, not legal technicians, act. It
arises when the facts and circumstances within an officer's
knowledge, or of which he has reasonably trustworthy information,
are sufficient in themselves to justify a man of average caution
in the belief that a crime has been committed and that a
particular individual committed it.”
Moore v. State, 986 So.2d 928, 934 (Miss.2008)
(internal citations omitted).
¶ 23. We find that: 1) the record reveals
that there was probable cause to arrest Gillett, and 2) thus, the
items seized from Gillett's person incident to his arrest and the
custodial statement he provided incident to his arrest were lawful
and should not have been suppressed. Therefore, the trial
court's denial of Gillett's motion to suppress his warrantless
arrest and the seizures incident thereto was not clearly erroneous
nor contrary to the substantial evidence before it.8
¶ 24. Gillett additionally argues that, under
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134
L.Ed.2d 911 (1996), and Federal Rule of Criminal Procedure 12(d),
the trial court's ruling stating that “[t]he suppression motions,
namely Motion 005 [regarding the legality of the warrantless
arrest], 006, 007, and 008 are denied,” without further
elaboration, is an insufficient ruling for review by this Court.
Gillett argues that the trial court was required to make findings
of historical facts, which are the salient events leading up to
the stop or the search (or in this case, the arrest). First,
Ornelas does not state that a trial judge is required to make
on-the-record findings of historical fact before ruling on a
motion to suppress evidence. Second, the Federal Rules of
Criminal Procedure are not applicable in this case; Gillett even
admits that “Mississippi has no analogue for Federal Rule of
Criminal Procedure 12(d) [and] ․ Mississippi trial courts are not
required to issue any findings of fact to support a suppression
II. Whether the trial court erred in denying
Gillett's motion to suppress his custodial statement.
¶ 25. Gillett's next assignment of error is
that the trial court erred in denying his motion to suppress his
custodial statement. On March 29, 2004, shortly after Gillett's
arrest, Agent Lyon was tasked with interviewing Gillett regarding
the narcotics violation and the suspected stolen vehicle. Lyon
set up a video camera to tape the interview and, before beginning
the interview, informed Gillett that the interview was being
taped. Soon after Gillett entered the interview room, Lyon
showed Gillett a copy of the search warrant issued for 606 North
Ash Street. Gillett looked it over, reading through the pages.
Lyon then proceeded to read Gillett his Miranda rights as they
were listed on the “Miranda Card.” Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As Lyon read the
rights aloud, he asked if Gillett had any questions about the
rights, and he had Gillett initial next to each enumerated right.
Lyon then asked Gillett the following question as it is written
on the Miranda Card: “Having these rights in mind, are you
willing to answer questions now?” In response, Gillett placed an
“X” on the Miranda Card, not in the box indicating “YES” (the box
being to the left of the word “YES”), but rather directly to the
right of the word “YES,” in the white space between the word “YES”
and the box indicating “NO.” 9
To clarify whether Gillett wanted to talk, Lyon asked, “Ok, so you
want to go ahead and talk for a little bit, then, right?”
Gillett responded, “Maybe.” Lyon then asked, “Ok, will you sign
at least then that you'll talk to me for a little bit?” Gillett
then signed and dated the card and asked, “What's this about?”
¶ 26. Lyon and Gillett then proceeded to have
an exchange regarding: from where, with whom, and by what form of
transportation Gillett had traveled to Kansas the previous week;
with whom Gillett had stayed while in Hattiesburg, and for how
long he had stayed there; which of the belongings seized from 606
North Ash Street were Gillett's; what his backpack seized from
606 North Ash Street contained; and when Gillett had last been to
the Gillett farm. Lyon also told Gillett that the police were
getting ready to serve a search warrant at the Gillett farm
because they had been keeping the farm under surveillance and
suspected that there might be a stolen vehicle from Mississippi at
¶ 27. Right after Lyon told Gillett that a
white pickup truck with Mississippi tags had been reported stolen,
Gillett said, “I need to speak with an attorney.” The following
exchange, as transcribed in one of Gillett's exhibits, then
Lyon: Ok. Well, that's fine. I'll go ahead
and take you back to the jail. What this is all about is you're
under arrest right now for the manufacture of methamphetamine,
conspiracy to manufacture methamphetamine, possession of
pseudoephedrine with intent to manufacture, possession of drug
manufacturing paraphernalia. That's what you're being charged
with now on account of last night, and um, there might be some
more charges that come out of it. Um—
Lyon: Well we're going to have to see. You
asked for an attorney. So I can't really discuss it anymore,
unless you want to change your mind. I'd like to discuss it with
you and get it cleared up but I don't know if I, you know—If I got
the wrong guy, I got the wrong guy.
Gillett: But you're already charging me with
Lyon: Well, I haven't gotten the affidavit for
arrest warrant yet. 11 That's the way it looks for preliminarily
now, but I wanted to get your side of it, but since you asked for
an attorney. You want to talk some more?
Gillett: What other charges are you trying to
throw at me?
Lyon: Well I'm not trying to throw anything at
you, but I want to completely come clean with you, but I can't.
You asked for an attorney. I can't say anything right now.
Gillett: All right. Hold up on that for a
Lyon: Ok, you don't want an attorney?
Gillett: Not this instant.
Lyon: Ok, so you're withdrawing—
Lyon: Well I got to ask because ․
Gillett: Yes, I'm withdrawing my request for
The interview then continued until Gillett
again asked for an attorney, and Lyon then promptly ended the
interview. Lyon's testimony at the pretrial motion hearing was
consistent with this transcription of the custodial interview.
¶ 28. Gillett argues that his entire
custodial statement is inadmissible because he never waived his
Fifth Amendment right to silence nor his Sixth Amendment right to
counsel, and therefore, the trial court erred in denying his
motion to suppress the statement. Gillett further argues that,
even if this Court were to find that Gillett had waived his right
to silence and counsel at the start of the interview, the trial
court erred in denying his motion to suppress his custodial
statement after the point in the interview when he first
explicitly invoked his right to counsel.
¶ 29. This Court has stated that a heavy
burden must be met for a trial court's decision regarding a motion
to suppress to be overturned. Taylor v. State, 789 So.2d 787
(Miss.2001). This Court has elaborated:
A trial court is also given deference in the
admissibility of an incriminating statement by a criminal
defendant. In Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996),
this Court held that the defendant seeking to reverse an
unfavorable ruling on a motion to suppress bears a heavy burden.
The determination of whether a statement should be suppressed is
made by the trial judge as the finder of fact. Id. “Determining
whether a confession is admissible is a finding of fact which is
not disturbed unless the trial judge applied an incorrect legal
standard, committed manifest error, or the decision was contrary
to the overwhelming weight of the evidence.” Balfour v. State,
598 So.2d 731, 742 (Miss.1992); Alexander v. State, 736 So.2d
1058, 1062 (Miss.Ct.App.1999).
Baldwin v. State, 757 So.2d 227, 231
¶ 30. An officer must secure a Miranda waiver
before beginning a custodial interrogation if the officer intends
to use any of the information acquired from the interview as
evidence. Miranda explains:
Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease․ If the individual states
that he wants an attorney, the interrogation must cease until an
attorney is present․ If the interrogation continues without the
presence of an attorney and a statement is taken, a heavy burden
rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed counsel․
An express statement that the individual is willing to make a
statement and does not want an attorney followed closely by a
statement could constitute waiver․
Miranda v. Arizona, 384 U.S. 436, 473–75, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966).
¶ 31. As noted above, at the start of the
custodial interview, Lyon read Gillett his Miranda rights and had
him initial next to each right listed on the Miranda Card to
indicate that he fully understood his rights. When asked if,
having his rights in mind, he was willing to talk, Gillett gave an
ambiguous response by marking an “X” on the Miranda Card between
the “YES” and “NO” boxes. Lyon then asked the clarifying
question, “Ok, so you want to go ahead and talk for a little bit,
then, right?” Gillett responded, “Maybe.” Lyon then again
attempted to clarify whether Gillett wanted to talk by asking,
“Ok, will you sign at least then that you'll talk to me for a
little bit?” Gillett then signed and dated the card and asked,
“What's this about?” Gillett never indicated in any manner at
any time prior to or during questioning that he desired to remain
silent, as he was required to do under Miranda to invoke his right
to silence. Miranda, 384 U.S. at 473–74, 86 S.Ct. 1602.
¶ 32. Because Gillett did not invoke his
right to silence, the interview proceeded for a significant amount
of time until, after learning that the police were getting ready
to serve a search warrant on the Gillett farm and that they
suspected there might be a stolen vehicle there, Gillett invoked
his right to an attorney by stating, “I need to speak with an
attorney.” After Gillett made this statement, Lyon immediately
ceased questioning him, told him he would return him to jail, and
told him what the charges against him were (as they were listed on
the search warrant for 606 North Ash Street, which Gillett
reviewed at the start of the interview), and that there may be
additional charges. Gillett then asked, “Like [what additional
charges]?,” but Lyon told Gillett that, because Gillett had
invoked his right to counsel, Lyon could not speak with him
further about the matter, unless he withdrew his request for an
attorney. Shortly thereafter, Gillett explicitly withdrew his
request for an attorney, stating “Yes, I'm withdrawing my request
for an attorney.” The interview then proceeded for between ten
and fifteen minutes until Gillett again invoked his right to
counsel, and Lyon promptly ended the interview.
¶ 33. Smith v. Illinois explains that “if the
accused invoked his right to counsel, courts may admit his
responses to further questioning only on the finding that he (a)
initiated further discussions with the police, and (b) knowingly
and intelligently waived the right he had invoked.” Smith v.
Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).
As discussed, Gillett did just that; he initiated further
discussions with police by asking “Like [what additional
charges]?,” and then knowingly and intelligently waived the right
to counsel he had invoked.
¶ 34. Gillett argues that Lyon's informing
Gillett of the charges against him after Gillett had invoked his
right to counsel constituted continued interrogation; however,
that argument is without merit. The U.S. Supreme Court explained
in Rhode Island v. Innis that “the definition of interrogation can
extend only to words or actions on the part of police officers
that they should have known were reasonably likely to elicit an
incriminating response.” Rhode Island v. Innis, 446 U.S. 291,
303, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980) (emphasis in
original). Lyon's statement informing Gillett of the charges
against him was not a statement that Lyon “should have known was
reasonably likely to elicit an incriminating response.” Id.
(emphasis removed). When Lyon verbally told Gillett what the
charges against him were, Lyon was not informing Gillett of
anything Gillett had not already had an opportunity to read in the
search warrant for 606 North Ash Street, which Lyon had given
Gillett to review at the start of the interview. Notably, at the
time of the interview, Lyon did not know that anyone had been
¶ 35. Therefore, the trial court's denial of
Gillett's motion to suppress his custodial statement was not
manifest error nor was it contrary to the overwhelming weight of
III. Whether the trial court erred in
denying Gillett's motion to suppress seizures from the warranted
search of 606 North Ash Street.
¶ 36. Gillett's next assignment of error is
that the trial court erred in denying his motion to suppress items
seized from the warranted search of 606 North Ash Street, Russell,
Kansas, the residence of Gillett's aunt, Patty Hulett, with whom
Gillett was staying while in Russell. On March 29, 2004, Agent
Lyon secured a search warrant for 606 North Ash Street. Lyon's
affidavit for the search warrant explained that Lyon had more than
twenty years of narcotics investigation experience and listed the
unique knowledge Lyon had because of that experience. The
affidavit then informed the court that:
At approx. 11:15 a.m. on 03–29–2004, SSA LYON
and SA Sherri MOORE interviewed Debbie Lynn MILAM at the Russell
County Sheriff's Office (SO).
MILAM advised of the following:
MILAM was not under the influence of alcohol or
any other drug. She last used methamphetamine approx. six years
ago. She is the aunt of Roger Lee GILLETT.
GILLETT drove to Russell, Ks on 03–26–2004.
On 03–28–2004, during the evening hours,
GILLETT and his girlfriend, Lisa Jay [sic ] CHAMBERLIN, had MILAM
drive them, in MILAM's vehicle, to MILAM'S uncle's abandoned farm,
located at the northeast corner of section 33, Township 11 South,
Range 13 West, Russell County, Ks, commonly known as 5482–190th
St. MILAM observed GILLETT get in a white pickup truck, which he
placed in a shed. MILAM then slept in her vehicle. When she
awoke, she could smell a strong odor. GILLETT had a trash bag
with him. He showed her a firearm, and advised that if she told
anyone what he was doing, he would kill her.
GILLETT and CHAMBERLIN entered MILAM'S vehicle
with the trash bag. He had MILAM drive back roads to Bunker
Hill, Ks, to dispose of the trash. He then changed his mind, and
had MILAM drive to Russell. MILAM asked him if he wanted to
throw the trash bag in her trash, and he advised he did not want
to put it in her trash. He directed her to drive to the Russell
City swimming pool, where he threw the trash bag in the dumpster
at the pool. MILAM then drove GILLETT and CHAMBERLIN to 606
North Ash, Russell, KS, where he stays when he is in Russell.
GILLETT advised MILAM of the following:
GILLETT needed to obtain a storage unit to hide
the pickup truck that was at the above farm house. It was stolen
from Mississippi. He had left “D” in MILAM's vehicle. He had
“stuff” on him now. The FBI was looking for him, as he had
committed computer crimes in Oregon. He had obtained computers
and false identification for drug dealers there.
SSA Lyon determined that there was an active
felony warrant for GILLETT in Pendleton, Umatilla County, Oregon,
for the following:
7 Counts of forgery in the first degree.
5 Counts of theft in the first degree.
26 Counts of identity theft.
41 Counts of Computer crime.
Russell County SO Deputy Kelly SCHNEIDER
advised that MILAM showed him items she had observed at the farm
house. These items were consistent with that of a clandestine
methamphetamine laboratory. Deputy SCHNEIDER further advised of
ON 02–17–2004, Russell County Deputy Fred
WHITMAN conducted a traffic stop on CHAMBERLIN'S vehicle. He
found her in possession of an 18 ounce bottle of Red Devil Lye, a
32 ounce bottle of Sunnyside Muriatic Acid, a small quantity of
green vegetation and other drug paraphernalia.
MILAM showed SA MOORE the bag in the above
dumpster. SA MOORE retrieved it. KBI SA Brian Carroll advised
there was a methamphetamine laboratory in the trash bag. MILAM
signed a consent to search her vehicle. Deputy SCHNEIDER advised
he found a propane tank in her vehicle as well as ammonium sulfate
and sodium hydroxide in the trash. SSA LYON knows that these
chemicals are consistent with the manufacture of anhydrous
Russell County Sheriff John FLETCHER advised
that Russell County Undersheriff Max BARRETT had spoken to a
neighbor near the above farm house. The neighbor had observed
the above white pickup at the farm house on 03–25–2004 or
SSA LYON had interviewed GILLETT in 1993, after
GILLETT had been arrested by the Osborne County SO for possession
of marijuana. He advised SSA LYON that he had been fronted the
marijuana that he had been caught with, and owed money for it.
Therefore, the undersigned requests that a
search warrant be issued for the items described herein, as
provided by law.
¶ 37. Gillett argues that the affidavit in
support of the warrant was wholly conclusory, and as a result, the
seizures made on the warrant were absent probable cause. Gillett
also contends that the affidavit failed to contain sufficient,
particularized facts from which the magistrate judge could have
found a substantial basis for probable cause. Gillett argues
that the items seized from the search of 606 North Ash Street
should be suppressed because they were based on uncorroborated
information from an informant whose reliability was not
established, and they are unconstitutional under the United
States, Kansas, and Mississippi constitutions.
¶ 38. This Court has held that:
In determining whether the issuance of a search
warrant is proper, an appellate court will review the trial
judge's decision to determine whether there was a substantial
basis for concluding that probable cause existed. The reviewing
court will overturn the trial court if there is an absence of
substantial credible evidence to support the issuance of the
Culp v. State, 933 So.2d 264 (Miss.2005)
(internal citations omitted); see also Roach v. State, 7 So.3d
911, 917 (Miss.2009) (where this Court stated that, in reviewing a
magistrate's finding of probable cause, this Court does not apply
a de novo standard of review, but rather examines whether there
was a substantial basis for the magistrate's determination).
Further, this Court applies a “totality of the circumstances”
analysis to determinations of probable cause. Lee v. State, 435
So.2d 674, 676 (Miss.1983). This Court has elaborated:
The task of the issuing magistrate is simply to
make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the
‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.
¶ 39. As is evident from the portion of
Lyon's affidavit included above, there was a substantial basis for
the magistrate judge and the trial court to conclude that probable
cause existed. As noted above, Debbie Milam, Gillett's aunt,
informed Lyon that just the previous day, she had witnessed
Gillett engaged in the manufacture and possession of illegal
narcotics and in the possession of a stolen vehicle. In
addition, Gillett had threatened Milam with a firearm; he had
“stuff” on him now; and Milam had dropped Gillett off at 606
North Ash Street, where he was staying while in Russell.
¶ 40. Furthermore, while this Court has held
that probable cause does not exist for the issuance of a search
warrant when the search warrant contains no corroboration or
indicia of veracity or reliability of the informant (State v.
Woods, 866 So.2d 422, 427 (Miss.2003)), Lyon's affidavit in
support of the search warrant includes information corroborating
Milam's statements. For example, Milam's statement that Gillett
was in possession of a stolen white pickup truck was corroborated
by neighbors of the Gillett farm who said they had seen the truck;
Milam's statements regarding Gillett manufacturing
methamphetamine were corroborated by her leading officers to the
trash bag Gillett had discarded, which indeed contained items used
in the manufacture of methamphetamine (referred to by officers as
a “methamphetamine laboratory”); Milam's statements regarding the
manufacture of methamphetamine were further corroborated when she
allowed officers to search her vehicle and find a propane tank in
her trunk, reportedly left there by Gillett; and Milam's
statement that Gillett had committed computer crimes in Oregon was
corroborated when Agent Lyon discovered that there was an active
felony warrant for Gillett's arrest for computer crimes committed
¶ 41. Therefore, there was a substantial
basis for the magistrate judge to issue the warrant and for the
trial court to conclude that probable cause existed.
Accordingly, we find that the trial court did not err in denying
Gillett's motion to suppress the seizures from the warranted
search of 606 North Ash Street.12
IV. Whether the trial court erred in denying
Gillett's motion to suppress evidence of the warranted search of
5482 190th Street.
¶ 42. Gillett's next assignment of error is
that the trial court erred in denying his motion to suppress
seizures from the warranted search of the Gillett farm, located at
5482 190th Street, Russell County, Kansas. On March 29, 2004,
Agent Lyon secured a search warrant for the Gillett farm. Lyon
supported the warrant with an affidavit containing the same
information contained in the affidavit he had prepared to support
the warrant for the search of 606 North Ash Street, the content of
which is included in the discussion of the previous issue above.
We find that, based on the information included in the affidavit
in support of the warrant for the search of the Gillett farm,
there was a substantial basis for the magistrate judge to issue
the warrant and for the trial court to conclude that probable
¶ 43. In addition to arguing that there was
no probable cause to issue the search warrant for the Gillett
farm, Gillett argues that the search warrant for the farm is
invalid for failure to describe with particularity the place to be
searched, and that the search conducted was beyond the scope of
the warrant. Gillett's primary argument is that the only
structure on the farm that lawfully could have been searched was
“a shed” into which Milam told Lyon she saw Gillett drive a white
pickup truck and to which Lyon referred in his affidavit.
¶ 44. The search warrant for the farm
authorized the officers to search:
A farm house located in the northeast corner of
section 33, Township 11 South, Range 13 West, Russell County, Ks,
commonly known as 5482–190th St., to include any out buildings
normally associated with this residence.
The search is to include the persons of anyone
on the property at the time of the search and any vehicles or
conveyances located on the property at the time of the search.
This description of the places to be searched
“particularly describ[es] the place to be searched and the persons
or things to be seized,” as a search warrant is required to do.
Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72
(1987). At trial, through use of testimony and exhibits, the
farm was described as a cluster of buildings, situated fairly
close together, consisting of a metal shed, a wooden shed, an
abandoned farmhouse, and an outhouse (or old chicken house). A
search of any or all of these buildings was within the scope of
the warrant, which authorized search of “a farm house” and “any
out buildings normally associated with this residence.” Further,
regarding the propriety of the scope of the warrant, Milam did not
indicate that Roger's activities at the farm involving
methamphetamine had taken place only in a single shed. In sum,
the search warrant for the Gillett farm was based on probable
cause, was sufficiently particular regarding the place to be
searched, and was properly executed. Therefore, the trial court
did not err in denying Gillett's motion to suppress evidence
obtained during the warranted search of the farm.
V. Whether the trial court erred in denying
Gillett's motion for directed verdict as to Count II of the
indictment, charging Gillett with the capital murder of Vernon
¶ 45. Gillett's fifth assignment of error is
that Count II of the indictment, charging Gillett with the capital
murder of Vernon Hulett, should not have proceeded to the jury
because it is undisputed that the white pickup truck, which the
State theorizes Gillett stole, was owned solely by Linda
Heintzelman. Gillett contends that, in order for him to be
guilty of capital murder under Mississippi Code Section
97–3–19(2)(e), Vernon Hulett must have had an interest in the
white pickup truck that allegedly was stolen.
¶ 46. Mississippi Code Section 97–3–19(2)(e)
(2) The killing of a human being without the
authority of law by any means or in any manner shall be capital
murder in the following cases:
(e) When done with or without any design to
effect death, by any person engaged in the commission of the crime
of rape, burglary, kidnapping, arson, robbery, sexual assault ․ or
in any attempt to commit such felonies[.]
Miss.Code Ann. 97–3–19(2)(e) (Rev.2006). The
statute simply states that, to constitute capital murder, the
killing of a human being must be committed while “engaged in the
commission of the crime of ․ robbery․” It does not state that the
person killed must have had an interest in the property taken.
See Bellsouth Telecomms., Inc. v. Miss. Pub. Serv. Comm'n, 18
So.3d 199, 203 (Miss.2009) (“When the language used by the
Legislature is plain and unambiguous and the statute conveys a
clear and definite meaning, as here, the Court will have no
occasion to resort to the rules of statutory interpretation.”).
As support for this proposition that the person killed need not
have had an interest in the property taken, the State cites Grant
v. State, 8 So.3d 213, 216 (Miss.Ct.App.2008), cert. denied, 12
So.3d 531 (Miss.2009), which held that the killing of a
coconspirator during a robbery constituted capital murder under
Section 97–3–19(2)(e). The State logically argues that, if a
coconspirator, who obviously does not have a valid interest in the
property he was stealing, is covered by the statute, so must be an
Therefore, we find that the trial court did not err in denying
Gillett's motion for directed verdict on Count II of the
indictment, and further, that all arguments Gillett makes
regarding this claim are without merit.14
VI. Whether the trial court erred in
allowing jury instructions S–5 and S–6.
¶ 47. Gillett's next assignment of error is
that the trial court erred in allowing jury instructions S–5 and
S–6 because they do not require the jury to conclude that the
intent to rob the victims was formed sometime before the victims
died. “This Court has repeatedly held that, ‘jury instructions
are within the sound discretion of the trial court.’ ” Rubenstein
v. State, 941 So.2d 735, 787 (citing Goodin v. State, 787 So.2d
639, 657 (Miss.2001)).
¶ 48. S–5 states:
The Court instructs the Jury that in a case of
Capital Murder the fact that the victim was dead at the time of
taking her personal property does not mitigate against the
conclusion of the robbery. If the intervening time between the
murder, if any, and the time of the taking of the property, if
any, formed a continuous chain of events, the fact that the victim
was dead when the property was taken cannot absolve the Defendant
from the crime.
If you should find from the evidence in this
case beyond a reasonable doubt that Roger Lee Gillett, alone or in
conjunction with another, killed and murdered Linda Heintzelman
and then, after the said Linda Heintzelman was dead, took the
personal property of Linda Heintzelman; and if you should further
find beyond a reasonable doubt that the intervening time between
the time of the murder, if any, and the time of the taking of the
property, if any, formed a continuous chain of events, the fact
that Linda Heintzelman was dead when the property was taken does
not absolve the Defendant from the crime of capital murder in
¶ 49. S–6, which is nearly identical to S–5,
aside from the substitution of Vernon Hulett's name as the murder
The Court instructs the Jury that in a case of
Capital Murder the fact that the victim was dead at the time of
taking the personal property of Linda Heintzelman does not
mitigate against the conclusion of the robbery. If the
intervening time between the murder, if any, and the time of the
taking of the property, if any, formed a continuous chain of
events, the fact that the victim was dead when the property was
taken cannot absolve the Defendant from the crime.
If you should find from the evidence in this
case beyond a reasonable doubt that Roger Lee Gillett, alone or in
conjunction with another, killed and murdered Vernon Hulett and
then, after the said Vernon Hulett was dead, took the personal
property of Linda Heintzelman; and if you should further find
beyond a reasonable doubt that the intervening time between the
time of the murder, if any, and the time of the taking of the
property, if any, formed a continuous chain of events, the fact
that Vernon Hulett was dead when the property was taken does not
absolve the Defendant from the crime of capital murder in Count
¶ 50. First, as pointed out by the State
numerous times at trial and in its brief to this Court,
Mississippi follows the “one-continuous-transaction” rationale in
capital cases. In other words, “where the two crimes [e.g.,
murder and robbery] are connected in a chain of events and occur
as part of the res gestae, the crime of capital murder is
sustained.” Pickle v. State, 345 So.2d 623, 627. “An indictment
charging a killing occurring ‘while engaged in the commission of’
one of the enumerated felonies includes the actions of the
defendant leading up to the felony, the attempted felony, and
flight from the scene of the felony.” Turner v. State, 732 So.2d
937, 950 (Miss.1999) (quoting West v. State, 553 So.2d 8, 13
¶ 51. Moreover, this Court specifically has
found that the intent to rob, which is required to prove the
underlying felony of robbery, can be shown from the facts
surrounding the crime. (Walker v. State, 913 So.2d 198, 224
(Miss.2005); Lynch v. State, 877 So.2d 1254, 1266 (Miss.2004)).
The Walker v. State Court explained the following:
In Knox v. State, 805 So.2d 527 (Miss.2002),
Knox contended that the State presented insufficient evidence to
prove that he intended to rob the victim when he killed her.
Because of the alleged insufficiency of evidence, Knox argued that
the State failed to prove the underlying felony of robbery, and,
therefore, the charge of capital murder. Id. at 531. This Court
disagreed with Knox's claims holding: “ ‘Intent to do an act or
commit a crime is also a question of fact to be gleaned by the
jury from the facts shown in each case.’ ” Id. (quoting Shanklin
v. State, 290 So.2d 625, 627 (Miss.1974)). This Court found it
most significant that Knox was in possession of the victim's
personal belongings at the time he was arrested. Id. at 532.
This Court held: “[W]hen the defendant is discovered with the
personal property of the deceased on his person, it is entirely
within reason for the jury to find that this fact in itself
constitutes robbery.” Id.
Walker, 913 So.2d at 224. Thus, it was not
error for the trial court to leave to the jury the question of
whether, based on the facts surrounding the crime, Gillett had the
intent to rob Linda Heintzelman. Not only was evidence revealed
at trial that Gillett was in possession of the stolen truck, but a
witness testified that Gillett had confessed to him that “he had
taken the pickup and the owners [whom he had ‘taken care of’] were
in the back of it.”
¶ 52. Lastly, the primary authority on which
Gillett relies to support the proposition that the State must
prove that Gillett had intent to rob Heintzelman prior to killing
her—Pickle v. State, 345 So.2d 623, 626 (Miss.1977)—does not stand
for that proposition. Rather, as stated above, Pickle stands for
the proposition that the crime of capital murder exists where “the
two crimes are connected in a chain of events and occur as part of
the res gestae.” 15
Id. at 627.
¶ 53. Therefore, the trial court did not
abuse its discretion in allowing the jury to consider instructions
S–5 and S–6.
¶ 54. Gillett also argues that instruction
S–6 was improper because Vernon Hulett had no property interest in
the white pickup truck. Based on the analysis provided under the
previous section heading (section “V”), we find that argument to
be without merit.
VII. Whether the trial court erred in
permitting expert testimony regarding DNA results over Gillett's
¶ 55. Gillett's next assignment of error is
that the trial court erred in permitting the expert testimony of
William Jones, DNA Section Chief at the Mississippi Crime
Laboratory, regarding DNA results, over Gillett's Daubert
objection. A pretrial Daubert hearing was held on September 20,
2007, regarding the reliability of DNA evidence the State wished
to introduce, which showed that a shoe recovered from the landfill
in Russell, Kansas, had the blood of Linda Heintzelman on it.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993).
¶ 56. At the hearing, the primary point of
contention was that the blood samples taken from the deceased
bodies of Linda Heintzelman and Vernon Hulett during their
autopsies had been stored in “red-top” tubes, as opposed to
“purple-top” tubes—purple-top tubes being the preferred type, if
available. Purple-top tubes are preferable because they contain
a preservative that prevents the blood from clotting or otherwise
deteriorating. Red-top tubes contain no preservative.
¶ 57. Jones—who has been a forensic scientist
since 1989—testified that it is the Mississippi Crime Laboratory's
practice to use the red-top tubes for DNA if no purple-top tubes
Jones testified that customary procedures and controls were used
in his testing of the samples at issue, and that nothing had
occurred in the analytical process that caused him any concern
regarding the controls. He testified that the Crime Laboratory's
protocol does not exclude red-top tubes from being used, and that
other DNA analysts also use red-top tubes. Jones was satisfied
with the test results and confident that there was no error. He
testified that there is no way that using a red-top tube would
have resulted in a misidentification; he is “absolutely convinced
that if you get a DNA profile from red-top tube, that it would be
the same as from the purple-top tube of that individual.” In
other words, results from a red-top tube sample either would
provide a valid identification or no identification at all, but
not a misidentification.
¶ 58. Gillett's DNA expert, Dr. Peter
D'Eustachio, testified that test results reached by Jones are
unreliable because Jones used red-top tubes. D'Eustachio
testified that the red-top-tube samples that were tested in this
case behaved in an unexpected way. He criticized the Crime
Laboratory for not having validated the procedure for testing
red-top tubes. He testified that no validation studies had been
conducted regarding red-top tubes. D'Eustachio conceded that he
did not know of any studies that address red-top-tube testing.
¶ 59. At the conclusion of the hearing, the
trial court ruled that the DNA evidence would be admissible at
trial, and that the jury would be left to attach the amount of
weight to the evidence they deemed warranted, explaining:
While the red-top tubes may not be the
preferred way for substances to be submitted for DNA evaluation,
for the purposes of this hearing and the matters before this Court
today, I think that the Daubert gatekeeping role of this Court is
to play, I think the State's witness certainly satisfies those
criteria, and your motion will be denied and this evidence will be
allowed. Of course, the remainder of that question is left to
the providence of the jury.
¶ 60. Gillett now argues that the trial court
erred in this ruling because the State failed to demonstrate the
scientific reliability of the methodology used by the State's
expert to achieve the results reported in the Mississippi Crime
Laboratory report, which found that the blood on the shoe from the
Russell, Kansas, landfill matched Linda Heintzelman's blood (but
not Vernon Hulett's blood).
¶ 61. A trial court's admission or exclusion
of expert testimony is reviewed for abuse of discretion. Miss.
Transp. Comm'n v. McLemore, 863 So.2d 31 (Miss.2003). The trial
court's decision will stand unless the reviewing court concludes
that the decision was arbitrary and clearly erroneous, amounting
to an abuse of discretion. Id.
¶ 62. In McLemore, this Court adopted the
“Daubert/Kumho ” rule—in other words, the U.S. Supreme Court's
standard set forth in Daubert, 509 U.S. 579, 113 S.Ct. 2786, and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,
143 L.Ed.2d 238 (1999)—as the standard for assessing the
reliability and admissibility of expert testimony. McLemore, 863
So.2d at 35. Of primary importance in assessing the
admissibility of expert testimony is Rule 702 of the Mississippi
Rules of Evidence, which is identical to Rule 702 of the Federal
Rules of Evidence. It states:
If scientific, technical or other specialized
knowledge will assist the trier of fact to understand or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to
the facts of the case.
Miss. R. Evid. 702.
¶ 63. Summarizing Daubert and Kumho, the
McLemore Court explained the following: “[T]he liberal goals of
the [rules] include reducing the traditional barriers to opinion
testimony.” McLemore, 863 So.2d at 36 (citing Daubert, 509 U.S.
at 588–89, 113 S.Ct. 2786). See also Poole v. Avara, 908 So.2d
716, 722 (Miss.2005) (“The [U.S. Supreme] Court emphasized the
liberal thrust of the rules and the general approach of the rules
to relax the traditional barriers to opinion testimony.”). Trial
courts, however, retain authority to review scientific evidence to
determine admissibility and are vested with a “gatekeeping
responsibility.” McLemore, 863 So.2d at 36 (citing Daubert, 509
U.S. at 589, 113 S.Ct. 2786). The trial court must engage in a
two-pronged inquiry, determining whether the expert testimony
rests on a reliable foundation and is relevant to the matter. Id.
Regarding the “reliability” prong—the prong at issue in the
instant case—the testimony must be grounded in the methods and
procedures of science, not merely a subjective belief or
unsupported speculation. McLemore, 863 So.2d at 36 (citing
Daubert, 509 U.S. at 590, 113 S.Ct. 2786). As Rule 702 states,
the testimony must be “based on sufficient facts or data” and be
“the product of reliable principles and methods.” Miss. R. Evid.
¶ 64. The Daubert Court adopted a
nonexhaustive, illustrative list of reliability factors for
determining the admissibility of expert testimony. McLemore, 863
So.2d at 36 (citing Daubert, 509 U.S. at 592–94, 113 S.Ct. 2786).
The factors include: whether the theory or technique can be and
has been tested; whether it has been subjected to peer review and
publication; whether, in respect to a particular technique, there
is a high known or potential rate of error; whether there are
standards controlling the technique's operation; and whether the
theory or technique enjoys general acceptance within a relevant
scientific community. McLemore, 863 So.2d at 37 (citing Daubert,
509 U.S. at 592–94, 113 S.Ct. 2786). The applicability of these
factors varies depending on the nature of the issue, the expert's
particular expertise, and the subject of the testimony. McLemore,
863 So.2d at 37 (citing Kumho Tire, 526 U.S. at 151, 119 S.Ct.
1167). The analysis of expert testimony's admissibility is a
flexible one that must focus on the principles and methodology
applied, not on the conclusions they generate. McLemore, 863
So.2d at 37; Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
¶ 65. The McLemore Court emphasized that “the
trial court's role as gatekeeper is not intended as a replacement
for the adversary system.” McLemore 863 So.2d at 39. “ ‘Vigorous
cross-examination, presentations of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.’ ”
McLemore, 863 So.2d at 36 (quoting Daubert, 509 U.S. at 595–96,
113 S.Ct. 2786). If the trial court concludes that the evidence
supporting a position is insufficient to allow a reasonable juror
to conclude that the position is more likely than not true, the
trial court can direct a judgement or grant summary judgment.
McLemore, 863 So.2d at 36 (citing Daubert, 509 U.S. at 596, 113
S.Ct. 2786). These traditional devices, rather than the
wholesale exclusion of the testimony, are the appropriate
safeguards where the testimony meets the standards of Rule 702.
McLemore, 863 So.2d at 37; Daubert, 509 U.S. at 596, 113 S.Ct.
2786. “Absent other grounds to exclude, an expert's testimony is
presumptively admissible when relevant and reliable.” McLemore,
863 So.2d at 39.
¶ 66. Based on review of the testimony of the
parties' expert witnesses at the Daubert hearing, we find that it
was not an abuse of discretion for the trial court to find that
Jones' testimony was based on sufficient data and was the product
of reliable methods. Therefore, the trial court did not abuse
its discretion in allowing Jones to testify at trial regarding the
DNA evidence. As noted above, cross-examination and presentation
of contrary evidence were the appropriate means of attacking any
aspects of Jones' testimony; however, the defense chose neither
to cross-examine Jones nor to object to his testimony at trial.
VIII. Whether the trial court erred in
denying Gillett's requested culpability-phase instructions: D–42,
–44, –45, –53, –60, –19, –25, –41, and –20.
¶ 67. Gillett's next assignment of error is
that the trial court erroneously excluded several of his
culpability-phase jury instructions. As noted in section VI,
“[t]his Court has repeatedly held that, ‘jury instructions are
within the sound discretion of the trial court.’ ” Rubenstein v.
State, 941 So.2d 735, 787 (citing Goodin v. State, 787 So.2d 639,
657 (Miss.2001)). In addition, as stated in Walker v. State, 913
So.2d 198 (Miss.2005):
This Court does not single out any instruction
or take instructions out of context; rather, the instructions are
to be read together as a whole. Thomas v. State, 818 So.2d 335,
349 (Miss.2002). A defendant is entitled to have jury
instructions which present his theory of the case. Id. This
entitlement is limited, however, in that the court is allowed to
refuse an instruction which incorrectly states the law, is covered
fairly elsewhere in the instructions, or is without foundation in
the evidence. Id.
Walker, 913 So.2d at 234 (quoting Parks v.
State, 884 So.2d 738, 746 (Miss.2004)).
¶ 68. Gillett claims that instructions D–42,
–44, and –45, individually and collectively, were erroneously
excluded. These instructions read:
It is a defense theory that the prosecution's
investigation evidence in this case was negligent, incomplete,
purposefully distorted and/or not done in good faith. You are to
assess the credibility of the investigative evidence together with
all of the other evidence.
Investigation which is thorough and conducted
in good faith may be credible while an investigation which is
incomplete, negligent or in bad faith may be found to have lesser
value or no value at all.
In deciding the credibility of the witness and
the weight, if any, to give the prosecution evidence, consider
whether the investigation was negligent and/or conducted in bad
If you find that the State inadequately
investigated one matter, you may infer that the prosecution also
inadequately investigated other matters. Based on this inference
alone you may disbelieve the prosecution witnesses and evidence.
This, by itself, may be sufficient for you to have a reasonable
doubt as to the defendant's guilt.
As the State has lost evidence, there is a
rebuttable presumption that the information contained in that
evidence would have been favorable to the defendant.
¶ 69. As support for Gillett's claim that the
prosecution's investigation was negligent, incomplete,
purposefully distorted, and/or not done in good faith, he states
Debbie Milam, Kathy Thacker and Jimmy Ploutz
drove to the farmstead during the pre-dawn hours of March 29,
None of these individuals initially told police
that they went to the farmstead during the pre-dawn hours of March
These individuals all told police that they
stored items taken from the farmstead on March 29, 2004, at the
residence of Nona Kay Adams, 440 15th Street, Russell, Kansas.
KBI Agent Butler photographed, catalogued and
collected at least one cigarette butt, one chewed plastic straw
and one cigarette lighter that KBI Agent Butler explained were
beneath the freezer (cigarette butt), behind the freezer (chewed
plastic straw) and “right in front of the freezer where the bodies
were found” and “looked as if it were new to the scene” (blue
cigarette lighter). None of these items were ever analyzed for
biological or fingerprint information even though police had Mr.
Gillett's fingerprints, blood, oral swabs and body hair.
KBI Agent Butler photographed and seized a
cardboard scabbard for a handsaw. This scabbard was found in the
same wooden shed where the human remains were found. Dr. Pojman
created cut margins on the injuries to each side of Mr. Hulett's
dismembering injuries. Agent Butler and Dr. Pojman testified
that tool markings can be compared to cut margins to identify a
cutting instrument. No cut-margin analysis was ever performed on
the handsaw identified as “Distan, 26 inch, hard point saw,
crosscut, eight points per inch.”
On April 2, 2004, four days after the discovery
of the human remains and the arrest of Mr. Gillett, police enter
440 15th Street, Russell, Kansas, with a search warrant. Police
photograph a hammer at the location where Debbie Milam, Kathy
Thacker and Jimmy Ploutz all tell police they stashed items taken
from the farmstead on March 29, 2004. Police never take this
hammer into evidence for processing or for comparison to pattern
injuries on a decedent, notwithstanding the findings of Dr. Pojman
that Mr. Hulett died as a result of blunt-force trauma caused by a
Police secured biological information from Mr.
Gillett permitting forensic comparisons with each and every item
inventoried above. Conversely, police never even sought
biological information from Debbie Milam or Kathy Thacker or Jimmy
Ploutz—even after police testified that [they] were made aware
that these individuals covered up their presence at the farmstead
by lying to police and by hiding evidence.
Hattiesburg police lost the videotape of their
initial entry into the home at 908 South Gulfport Street,
Hattiesburg. Officer Byrd refers to this tape as the tape “of
the crime scene at 908 South Gulfport St.”
¶ 70. While there certainly were items that
the State chose not to collect and/or not to test, Gillett has not
shown that law enforcement was negligent in its investigation,
that it distorted any evidence, or that it in any way acted in bad
faith. Furthermore, while it is true that the videotape of the
initial entry into the home at 908 South Gulfport Street was
misplaced due to the moving of the crime-scene unit office, law
enforcement officers took still photographs of their investigation
in the home, and those photographs were entered into evidence.
Therefore, no evidence was produced at trial to support
instruction D–42, and the trial court rightfully denied it.
¶ 71. As to instruction D–44, the cases
Gillett offers to support this instruction—United States v.
Shyllon, 10 F.3d 1, 3 (D.C.Cir.1993), People v. Wimberly, 5
Cal.App.4th 773, 7 Cal.Rptr.2d 152, 163–64 (1992), and
Commonwealth v. Bowden, 379 Mass. 472, 399 N.E.2d 482, 491
(1980)—are not binding precedent, and moreover do not actually
support the proposition raised by the instruction. Furthermore,
as just noted, there is no evidence that the State inadequately
investigated the matter.
¶ 72. As to instruction D–45, since there is
no evidence to suggest that the video of the search of 908 South
Gulfport Street would have revealed anything significantly
different from the still photos taken at the residence (which were
submitted as exhibits), there is insufficient evidence to support
an instruction that instructs the jury to presume that the
information contained in the lost evidence would have been
favorable to the defendant.
¶ 73. Therefore, the trial court did not
abuse its discretion in excluding D–42, D–44, and D–45.
¶ 74. Gillett next argues that the trial
court erred in excluding jury instructions D–53 and D–60,
Gillett's proposed lesser-included or manslaughter instructions.
D–53—which regarded Linda Heintzelman and is substantively
identical to D–60 regarding Vernon Hulett—stated:
If you acquit Roger Gillett of the capital
murder of Linda Heintzelman and the murder of Linda Heintzelman
you may then consider whether Roger Gillett is guilty of the
manslaughter of Linda Heintzelman.
If you find from the evidence unanimously and
beyond a reasonable doubt, that Roger Gillett, on or about March
20, 2004, in Forrest County, purposely or knowingly caused serious
bodily injury to Linda Heintzelman through the use of a deadly
weapon or other means likely to produce death or serious bodily
harm but without deliberate design to effect the death of Linda
Heintzelman and, further, that Roger Gillett was not acting in
self defense, was not acting in defense of another, did not act
with lawful authority, had the mental capacity to know right from
wrong at the time, and the assault upon Linda Heintzelman was not
accidental, and that, as a result of the assault, Linda
Heintzelman died, then you shall find Roger Gillett guilty of
If the prosecution has failed to
prove any one or more of the above listed elements beyond a
reasonable doubt, then you shall find Roger Gillett not guilty of
¶ 75. This Court has held that a manslaughter
or lesser-included-offense instruction should be given only “if
there is an evidentiary basis in the record that would permit a
jury rationally to find the defendant guilty of the lesser offense
and to acquit him of the greater offense․” Underwood v. State, 708
So.2d 18, 36–37 (Miss.1998) (citing Welch v. State, 566 So.2d 680,
684 (Miss.1990)). See also Ballenger v. State, 667 So.2d 1242,
1255 (Miss.1995). There is no evidence in the record to support
the theory that Linda Heintzelman and Vernon Hulett were killed
“without deliberate design to effect [their] death[s]”
(Instruction D–53 and 60); Gillett never offered an alternative
evidentiary scenario to show that the killings were consistent
with his version of manslaughter included in the instruction
above. Therefore, we find that there is no evidence in the
record to support jury instructions D–53 and D–60.
¶ 76. Gillett next argues that the trial
court erred in excluding jury instruction D–19, which regarded
reasonable doubt. D–19 stated:
I shall not define “reasonable doubt” for you.
Each of you is free to determine what you believe to be a
“reasonable doubt.” Therefore, it is not necessary that a
reasonable doubt be a collective doubt shared by all or a majority
of the jurors. If a reasonable doubt is present in the mind of
only a single juror, then the juror must vote to acquit.
Gillett argues that this instruction was
necessary to emphasize that each juror must be convinced of guilt
beyond a reasonable doubt.
¶ 77. As noted above, the trial court is
allowed to refuse instructions fairly covered elsewhere in the
instructions, and the trial court gave instruction C–2 regarding
probable cause, which stated:
This Court instructs the jury that you are
bound in deliberating upon this case, to give the defendant the
benefit of any reasonable doubt of the defendant's guilt that
arises out of the evidence or want of evidence in this case.
There is always a reasonable doubt of the defendant's guilt when
the evidence simply makes it probable that the defendant is
guilty. Mere probability of guilt will never warrant you to
convict the defendant. It is only when, after examining the
evidence on the whole, you are able to say on your oaths, beyond a
reasonable doubt, that the defendant is guilty that the law will
permit you to find him guilty. You might be able to say that you
believe her [sic ] to be guilty and yet, if you are not able to
say on your oaths, beyond a reasonable doubt, that he is guilty,
it is your sworn duty to find the defendant “Not Guilty.”
The substance of instruction D–19 was
adequately covered in instruction C–2, and therefore the trial
court did not abuse its discretion in denying instruction D–19.
¶ 78. Gillett next contends that the trial
court erred in excluding jury instruction D–25, which regarded
impeachment of a witness. D–25 stated:
The testimony of a witness or witnesses may be
discredited or impeached by showing that on a prior occasion they
made a statement which is now inconsistent or contradictory to
their testimony in this case. In order to have this effect, the
inconsistent or contradictory prior statement must involve a
matter which is material to the issues in this case.
You may consider any earlier statements only to
determine whether you think they are consistent or inconsistent
with the trial testimony of the witness and therefore whether they
affect the credibility of that witness. If you believe that a
witness has been discredited in this manner, it is your exclusive
right to give the testimony of that witness whatever weight you
think it deserves, if any.
The only binding precedent Gillett submitted
along with this instruction was Ellis v. State, 790 So.2d 813,
814–16 (Miss.2001), overruled on other grounds by Williams v.
State, 32 So.3d 486 (Miss.2010).
¶ 79. When Gillett submitted this instruction
at trial, the following statements were made:
THE COURT: 25?
MR. LAPPAN [Defense counsel]: Submitted.
MR. SAUCIER: Objection, Your Honor. The
authority given was Ellis v. State. The second paragraph is not
in that jury instruction in Ellis v. State. And another thing
that this jury instruction doesn't do that Ellis v. State does is
a prior statement must involve a material matter to the issues.
This doesn't say that. The prior statement of the witness and
what Ellis said was the prior statement of the witness or
witnesses can be considered by you only for the purposes of
determining the weight or believability that you give the
testimony of the witness or the witnesses that made them. You
may not consider the prior statement as proving the guilt or
innocence of the defendant. This jury instruction doesn't
contain any of that language.
THE COURT: Response?
MR. LAPPAN: No, sir.
THE COURT: It will be refused.
¶ 80. When the trial court asked the defense
to respond, it declined the opportunity to inform the court of the
relevance or propriety of the instruction as a whole, and it did
not take the opportunity to point to authority that might support
the second paragraph of the instruction. This Court has held
that a trial court is not required to draft or give every
instruction allowable in a capital case; it is the duty of the
defendant to submit instructions that he wishes to be given.
Jordan v. State, 786 So.2d 987, 1025 (Miss.2001). Therefore,
even if part of the instruction was proper and supported by
authority, the trial court was not required to modify the
instruction to resolve the State's objection, nor to give the
instruction at all if it found it improper.
¶ 81. In addition, there is no evidence in
the record to support an impeachment instruction; the instruction
would not apply to any of the witnesses who testified. Gillett
argues that the instruction pertained to Debbie Milam. There is
no evidence, however, that Milam made any statements prior to
trial that were inconsistent with her trial testimony. Milam
merely did not reveal to officers that she had returned to the
Gillett farm in the predawn hours of March 29, 2004, until
interviews that occurred subsequent to her initial March 29, 2004,
interview, and Milam readily admitted at trial that she did not
initially reveal that information to officers.
¶ 82. Therefore, the trial court did not
abuse its discretion in excluding instruction D–25.
¶ 83. Gillett next argues that the trial
court erred in refusing instruction D–41, which regarded a witness
persistently volunteering statements prejudicial to a defendant.
A witness who persistently volunteers
statements prejudicial to a defendant when such responses are not
called for by the questions which are asked is behaving in a
manner offensive to the fair administration of justice. You may
consider this tendency of the witness in evaluating his possible
bias, and hence in deciding the credibility of that witness.
¶ 84. Gillett argues that this instruction
was appropriate, in light of an alleged discrepancy in the
testimony of Agent Lyon and Agent Moore regarding why they chose
not to go forward with an undercover operation to expose Gillett.
Gillett offers a portion of Lyon's testimony, which explained
that the agents did not go forward with the undercover
investigation because it was deemed too dangerous for the
undercover agent, Moore. Gillett then offers a portion of
Moore's testimony, which explained that part of the reason they
did not go through with the undercover operation was that Moore
had never worked undercover with Milam (Gillett's aunt, who served
as an informant) before and had some concerns about her
¶ 85. First, the cited testimony of these two
agents is not inconsistent. Second, in a different portion of
Moore's testimony, she specifically testified that the undercover
operation was not executed because it was determined to be too
dangerous. Furthermore, Gillett did not raise this alleged
discrepancy at trial as the reason for offering instruction D–41.
At trial, the following was stated:
THE COURT: 41?
MR. LAPPAN [Defense Attorney]: Submitted.
MR. SAUCIER: Object because it goes toward the
weight and credibility of witnesses and he shouldn't give those.
THE COURT: Do you have authority for that
MR. SAUCIER: No, sir, I don't have any
authority. I haven't even seen that instruction before.
THE COURT: I haven't either.
MR. LAPPAN: Judge, the reason why I submitted
D–41, if it please the Court, is Agent Lyon, if you recall, when
he was testifying under examination from myself volunteered
information that Roger had a gun at a high school and I objected
to a narrative response, and I believe he was volunteering
information that was prejudicial to Roger, and that's why I
THE COURT: I'm going to refuse it.
¶ 86. On appeal, Gillett does not argue that
instruction D–41 was appropriate because of Lyon's statement about
Gillett once bringing a gun to high school. However, even if he
were making that argument, the instruction still would not be
appropriate because there is no evidence in the record that Lyon
“persistently volunteer[ed] statements prejudicial to [the]
defendant․” Instruction D–41 (emphasis added).
¶ 87. Lastly, the only authority Gillett
cites as support for instruction D–41—United States v. Andrea, 538
F.2d 1255, 1256–57 (6th Cir.1976)—is not binding precedent, and
moreover, does not support giving the instruction. In Andrea,
the Sixth Circuit noted the “apparently deliberate injection into
the record by Federal Bureau of Investigation witnesses of facts
which could have conveyed to the jury information pertaining to
defendant's incarceration on a different charge.” Andrea, 538
F.2d at 1256. Even so, the Sixth Circuit found the injection of
these facts into the record to be harmless error, given all the
circumstances in the case. Id. at 1256–57. Moreover, the
statement Lyon made about Gillett bringing a gun to school was not
analogous to the statements the FBI witnesses made in Andrea;
Lyon's single mention of gun possession was not similarly
deliberate. In addition, the only objection Gillett made at
trial to Lyon's statement about Gillett possessing a gun in high
school was that it was a “narrative response.”
¶ 88. Therefore, the trial court did not
abuse its discretion in excluding instruction D–41.
¶ 89. Gillett next argues that the trial
court erred in denying instruction D–20, regarding guilt by
association. D–20 reads: “Guilt by association is neither a
recognized nor tolerable concept in criminal law.”
¶ 90. This instruction was fairly covered
elsewhere in the jury instructions, specifically by S–7, D–8, and
S–7 stated in relevant part:
Before any Defendant may be held criminally
responsible for the acts of others, it is necessary that the
accused deliberately associate himself in some way with the crime
and participate in it with the intent to bring about a crime.
Of course, mere presence at the scene of a
crime and knowledge that a crime is being committed are not
sufficient to establish that a Defendant either directed or aided
and abetted the crime unless you find beyond a reasonable doubt
that the Defendant was a participant and not merely a knowing
You are here to decide whether the prosecution
has proved beyond a reasonable doubt that the defendant is guilty
of the crimes charged. The defendant is not on trial for any
act, conduct, or offense not alleged in the indictment. Neither
are you to be concerned with the guilt of any other person not on
trial as a defendant in this case.
Roger Gillett cannot be convicted upon mere
suspicion. No amount of suspicion or innuendo, however strong,
will warrant his conviction.
Because S–7, D–8, and D–21 were given, the
trial court, considering the jury instructions as a whole, did not
abuse its discretion in denying D–20.
IX. Whether the State satisfactorily
¶ 91. Gillett's next assignment of error is
that the State failed to establish venue. This issue is raised
for the first time on appeal; however, this Court has held that
“venue is jurisdictional and must be proven, and that the question
could be raised for the first time in this court.” Crum v. State,
216 Miss. 780, 63 So.2d 242, 244–45 (1953) (internal quotations
¶ 92. In Hill v. State, 797 So.2d 914
(Miss.2001), this Court explained:
Proof of venue is an essential part of criminal
prosecution, and the State bears the burden of proving venue
beyond a reasonable doubt. Venue may be proved by either direct
or circumstantial evidence․
While the ultimate burden of proving venue that
rests upon the State is beyond a reasonable doubt, this is a
standard of proof before the jury, not the trial judge․
As long as the evidence is sufficient to lead a
reasonable trier of fact to conclude that the crime in the present
case occurred at least partly in Forrest County [the county where
Hill v. State and the instant case were tried], then the evidence
of venue is sufficient․
Hill v. State, 797 So.2d 914, 916 (Miss.2001)
(internal citations omitted).
¶ 93. The statutes relevant to this question
of venue are Mississippi Code Sections 99–11–19 and 99–11–3(1).
Section 99–11–19 provides:
When an offense is committed partly in one
county and partly in another, or where the acts, effects, means,
or agency occur in whole or in part in different counties, the
jurisdiction shall be in either county in which said offense was
commenced, prosecuted, or consummated, where prosecution shall be
Miss.Code Ann. § 99–11–19 (Rev.2007).
¶ 94. Section 99–11–3(1) provides:
The local jurisdiction of all offenses, unless
otherwise provided by law, shall be in the county where committed.
But, if on the trial the evidence makes it doubtful in which of
several counties, including that in which the indictment or
affidavit alleges the offense was committed, such doubt shall not
avail to procure the acquittal of the defendant.
Miss.Code Ann. § 99–11–3(1) (Rev.2007).
¶ 95. In the instant case, sufficient
evidence was presented to lead the jury to conclude beyond a
reasonable doubt that the crimes took place, at least in part, in
Forrest County, where the case was tried. The State points out
the following facts, which were brought forth through trial
testimony. Gillett was staying at the home of the victims,
Vernon Hulett and Linda Heintzelman. The home was located at 908
South Gulfport Street, Hattiesburg, Forrest County, Mississippi.
According to those who testified, the victims were last seen on
March 19, 2004. On March 20, 2004, Gillett told Michael Hester,
Vernon Hulett's nephew who visited Vernon's house daily, that the
victims had gone to the Coast with a friend. According to
testimony, Gillett was next seen in Kansas, where he confessed to
friends that he had taken the white pickup truck he was driving
from its owners, that he had killed the owners, and that their
bodies were in the back of the truck. The victims' bodies were
found in a freezer at the Gillett farm. The freezer was the
property of the victims and was last seen (before it was
discovered at the farm) at the victims' residence at 908 South
Gulfport Street. The bodies displayed were marked with signs of
trauma, including cuts and stabs. Vernon Hulett's body was
dismembered. The victims' possessions were discovered in trash
bags at a Russell, Kansas, landfill where Gillett had been seen
dropping off trash. In one of the trash bags, law enforcement
officials found a shoe with blood on it. The shoe print of the
shoe with blood on it matched a shoe print found at the victims'
residence at 908 South Gulfport Street. The residence at 908
South Gulfport Street contained a rolled-up carpet with blood-like
stains on it. And lastly, the residence at 908 South Gulfport
Street showed numerous signs of blood-like stains throughout the
¶ 96. Presentation of these facts makes clear
that sufficient evidence was presented to allow the jury to
conclude beyond a reasonable doubt that the crimes had taken
place, at least in part, in Forrest County. Therefore, the State
satisfactorily established venue in Forrest County.
X. Whether the trial court erred in
overruling Gillett's objection to inadmissible source hearsay.
¶ 97. Gillett's next assignment of error is
that the trial court erred in overruling his hearsay objection to
testimony given by Terrell Carson, who was a detective sergeant
with the Hattiesburg Police Department in March 2004. At trial,
the following was stated during the direct examination of Terrell
Q. [BY MR. WEATHERS]: Can you think back to
March 29[, 2004] and tell the members of the jury whether or not
you received a telephone call or communication from a law
enforcement officer or agency from the State of Kansas in
reference to an address in Hattiesburg?
A. [BY MR. CARSON]: I did. It was around
10:45 p.m., just before my shift was about to end, I received a
call from my dispatch. She advised that I needed to call the
Kansas Bureau of Investigation and speak with an Agent Mellor at
which time I did call and speak with him and he gave me—
MR. FARRIS: Objection, Your Honor. It calls
MR. WEATHERS: Your Honor, it's not hearsay.
It's strictly information provided to this gentleman to explain
why he acted like he did.
MR. FARRIS: He's basing his testimony off what
Agent Mellor told him.
MR. WEATHERS: Your Honor, I don't know how I
could get him to explain why he did what he did unless he—
THE COURT: I'm going to allow him to testify
to the information he received. Let's move along.
Q. [BY MR. WEATHERS]: Back to where we were, I
think, Officer Carson, if you would, just tell us briefly, not in
great detail, but who you got a call from and what he asked you to
A. [BY MR. CARSON]: I got a call from Special
Agent Mellor. He asked me to go over to 908 South Gulfport
Street for a welfare concern.
Q. [BY MR. WEATHERS]: All right. Did you do
A. [BY MR. CARSON]: Yes, I did.
¶ 98. Gillett argues that the testimony
stating, “He asked me to go over to 908 South Gulfport Street for
a welfare concern” is textbook hearsay and inadmissible. This
Court, however, has held that such statements are admissible “to
the extent required to show why an officer acted as he did and was
at a particular place at a particular time.” Swindle v. State,
502 So.2d 652, 657–58 (Miss.1987). “[A] statement is not hearsay
if it is offered merely to show its effect on someone.” Thorson
v. State, 895 So.2d 85, 126 (Miss.2004). The testimony at issue
was not hearsay; it merely allowed Carson to explain why he went
to the 908 South Gulfport Street residence. Therefore, the trial
court did not err in overruling Gillett's objection to
inadmissable source hearsay.
XI. Whether Gillett's convictions are
unsupported by the evidence and are against the overwhelming
weight of the evidence.
¶ 99. Gillett's next assignment of error is
that his conviction and sentence are “contrary to established law
and decidedly against the overwhelming weight of the evidence.”
He argues that “[t]he evidence was insufficient insofar as the
State failed to meet its burden of proof by proving each element
of the charged offense beyond a reasonable doubt.” For these
reasons, Gillett contends, the trial court erred in denying his
motions for directed verdict, his peremptory instructions, and his
post-trial motion, which was a Motion for a New Trial, and if
Motion for New Trial is Denied, then a Motion for a New Sentencing
Hearing. Gillett does not explain why the evidence was
insufficient to support his conviction and sentence, nor why the
conviction and sentence were against the overwhelming weight of
¶ 100. When reviewing a claim that a
conviction is against the weight of the evidence, this Court must
accept the evidence that supports the verdict as true and will
reverse a trial court's denial of a motion for new trial only when
convinced that the trial court abused its discretion in denying
the motion. Valmain v. State, 5 So.3d 1079, 1086 (Miss.2009).
This Court will not order a new trial unless it finds that “the
verdict is so contrary to the overwhelming weight of the evidence
that to allow it to stand would sanction unconscionable
injustice.” Id. (quoting Todd v. State, 806 So.2d 1086, 1090
(Miss.2001)). There is a presumption that the trial court's
denial of a new trial is correct; the burden is on the appellant
to demonstrate reversible error to this Court. Valmain, 5 So.3d
at 1086. The evidence should be viewed in the light most
favorable to the verdict, and “the power to grant a new trial
should be invoked only in exceptional cases in which the evidence
preponderates heavily against the verdict.” Bush v. State, 895
So.2d 836, 844 (Miss.2005) (citing Herring v. State, 691 So.2d
948, 957 (Miss.1997), disagreed with on other grounds by Dilworth
v. State, 909 So.2d 731 (Miss.2005) and quoting Amiker v. Drugs
For Less, Inc., 796 So.2d 942, 947 (Miss.2000)).
¶ 101. In analyzing the sufficiency of the
evidence, this Court asks whether, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” Moore v. State, 996 So.2d 756, 760 (Miss.2008)
(quoting Jones v. State, 904 So.2d 149, 153–54 (Miss.2005) (citing
Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979))). This Court must accept as true all of the evidence
that is favorable to the State, including all reasonable
inferences that may be drawn therefrom. Moore, 996 So.2d at 760.
See also Derouen v. State, 994 So.2d 748, 751 (Miss.2008) (“The
evidence is viewed in the light most favorable to the State and
all credible evidence supporting the conviction is taken as
true.”). If the Court finds that the evidence “is of such
quality and weight that, ‘having in mind the beyond a reasonable
doubt burden of proof standard, reasonable fair-minded men in the
exercise of impartial judgment might reach different conclusions
on every element of the offense,’ the evidence will be deemed to
have been sufficient.” Bush v. State, 895 So.2d 836 (Miss.2005)
(quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). See
also Derouen, 994 So.2d at 751–52 (“Only where the evidence, as to
at least one of the elements of the crime charged, is such that a
reasonable fair minded jury could only find the accused not
guilty, will this Court reverse.” (quoting Eakes v. State, 665
So.2d 852, 872 (Miss.1995))).
¶ 102. The jury determines the weight and
credibility to give witness testimony and other evidence. Massey
v. State, 992 So.2d 1161, 1163 (Miss.2008). This Court may not
“pass upon the credibility of witnesses and, where the evidence
justifies a verdict, it must be accepted as having been found
worthy of belief.” Id. (quoting Davis v. State, 568 So.2d 277,
¶ 103. Based on a review of the record in the
light most favorable to the verdict—including all the evidence
discussed throughout this opinion and the inferences that can be
drawn therefrom—we conclude that Gillett's convictions were
neither based on insufficient evidence nor against the
overwhelming weight of the evidence. In addition to the physical
evidence the State introduced at trial, the State presented a
witness who testified that Gillett had confessed to him that he,
Gillett, had taken the white pickup truck he was driving from its
owners and that he had murdered them. Another witness testified
that Gillett had confessed to her that he needed to get rid of the
white pickup truck he was driving because two bodies were in the
back of the truck. A rational trier of fact could have found the
essential elements of the crime of capital murder beyond a
reasonable doubt. Similarly, the verdict was not so contrary to
the overwhelming weight of the evidence that to allow it to stand
would sanction unconscionable injustice. Therefore, the trial
court did not err in finding that the conviction was based on
sufficient evidence and not against the overwhelming weight of the
XII. Whether the trial court erred in
allowing the jury instructions regarding the Mississippi Code
Section 99–19–101(5) aggravating circumstances of “avoiding
arrest,” “previous violent felony,” “especially heinous capital
offense,” and “felony murder.”
¶ 104. Gillett argues that the jury should
not have been instructed, through S–5–S and S–6–S, to consider
whether “[t]he capital offense was committed for the purpose of
avoiding or preventing a lawful arrest․” Miss.Code Ann.
§ 99–19–101(5)(e) (Rev.2007).
¶ 105. First, a trial court's decision to
allow or deny a jury instruction is reviewed for abuse of
discretion. Rubenstein, 941 So.2d at 787. Second, this Court
has held that “[i]f there is evidence from which it may be
reasonably inferred that a substantial reason for the killing was
to conceal the identity of the killer or killers or to ‘cover
their tracks' so as to avoid apprehension and eventual arrest by
authorities, then it is proper for the court to allow the jury to
consider this aggravating circumstance.” Leatherwood v. State,
435 So.2d 645, 651 (Miss.1983).
¶ 106. Gillett contends that there is no
evidence that Gillett killed the victims to avoid arrest, and that
taking the bodies to Kansas to avoid arrest is not the same as
killing to avoid arrest. In response, the State argues that
“[i]t was entirely reasonable for the jury to conclude that the
victims were murdered to conceal the identity of the killers and
to avoid any investigation into the robbery.” Based on review of
the record, “it may be reasonably inferred that a substantial
reason for the killing was to conceal the identity of the killer
or killers or to ‘cover their tracks' so as to avoid apprehension
and eventual arrest by authorities.” Id. Therefore, the trial
court did not abuse its discretion in allowing the avoiding-arrest
aggravator to be included in instructions S–5–S and S–6–S.
¶ 107. Gillett next argues that the jury
should not have been instructed, through S–5–S and S–6–S, to
consider whether “[t]he defendant was previously convicted ․ of a
felony involving the use or threat of violence to the person.”
Miss.Code Ann. § 99–19–101(5)(b) (Rev.2007). Resolving this
issue requires analysis of whether Gillett's September 27, 2004,
conviction for attempted aggravated escape from custody in the
District Court of Ellis County, Kansas, under Kansas Statutes
Section 21–3810, constitutes a “felony involving the use or threat
of violence to the person.” Miss.Code Ann. § 99–19–101(5)(b)
(Rev.2007). Kansas Statutes Section 21–3810 provides:
Aggravated escape from custody is:
(a) Escaping while held in lawful custody (1)
upon a charge or conviction of a felony ․ or
(b) Escaping effected or facilitated by the use
of violence or the threat of violence against any person while
held in lawful custody (1) on a charge or conviction of any crime․
Kan. Stat. Ann. § 21–3810 (Rev.2007) (repealed
¶ 108. The State submitted to the trial court
a complaint (which the State explained is the equivalent of an
indictment in Mississippi) alleging the attempted aggravated
escape and also a judgment of conviction for the attempted
aggravated escape, both of which the State wished to introduce
during its case-in-chief at the penalty phase to support the
“previous violent felony” aggravator. Gillett objected to use of
the complaint because it contained allegations of offenses for
which Gillett had not been convicted. The trial court ruled that
the complaint, for this reason, could not be entered into evidence
for review by the jury. However, the trial court ruled that it
would verbally inform the jury that Gillett had been convicted of
attempted aggravated escape from custody in Kansas.
¶ 109. On appeal, Gillett argues that: 1)
under Hansen v. State, 592 So.2d 114, 145 (Miss.1991), escape does
not satisfy the Section 99–19–101(5)(b) aggravator; 2) the
documents the State presented to the trial court “do not
sufficiently provide a factual basis to support the aggravating
circumstance of a prior violent felony;” and 3) the State “has the
burden to prove that this conviction in Kansas would also be a
proper conviction in Mississippi for a prior violent felony.”
¶ 110. Gillett is correct that this Court has
held that an escape conviction does not constitute “a felony
involving the use or threat of violence to the person” under
Section 99–19–101(5)(b). Hansen v. State, 592 So.2d 114, 145
(Miss.1991). Moreover, Kansas Statutes Section 21–3810 provides
that a person can be found guilty of aggravated escape from
custody not only when the escape is “effected or facilitated by
the use of violence or threat of violence against any person while
held in lawful custody ․” (Kan.Stat.Ann. § 21–3810(b) (Rev.2007)
(repealed 2010)), but also for merely “escaping while held in
lawful custody (1) upon a charge or conviction of a felony․”
(Kan.Stat.Ann. § 21–3810(a) (Rev.2007) (repealed 2010)). Even
the State admits that, “[a]s the statute reads it is clear that
not every escape can be considered a crime of violence.” The
facts surrounding and supporting the Kansas conviction for
attempted aggravated escape are unknown; the State merely offered
a judgment of conviction to secure inclusion of the Section
99–19–101(5)(b) aggravator. Lastly, “[t]he State has th[e]
burden of proving beyond a reasonable doubt the existence of each
aggravating circumstance.” Holland v. State, 587 So.2d 848, 874
¶ 111. The State did argue to the trial court
that there is a Kansas case explaining that even an escape that
does not involve violence is violent in the sense that in
“apprehending you, you are putting people in jeopardy, both
citizens and law enforcement” and “because of what can happen, not
necessarily what did happen.” The State, however, has not
provided this Court a citation to that Kansas case.
Additionally, this Court has held that “[f]or a conviction to
qualify as predicate for an aggravating circumstance under this
state's statutes, the conviction from the sister state must have
been acquired under a statute which has as an element the use or
threat of violence against the person [which Kansas Statutes
Section 21–3810(a) does not necessarily have] or, by necessity,
must involve conduct that is inherently violent or presents a
serious potential risk of physical violence to another.”
Holland, 587 So.2d at 874.
¶ 112. The State, which has not provided this
Court the citation to the Kansas case that allegedly finds all
escapes to be violent, has failed to provide sufficient evidence
to support the inclusion of a “previous violent felony” jury
instruction. Miss.Code Ann. § 99–19–101(5)(b) (Rev.2007). See
Taylor v. State, 672 So.2d 1246, 1276 (Miss.1996) (explaining
that, in order for a jury instruction regarding an aggravating
factor to be permissible, the State must provide evidence that
could substantiate the jury's finding of that aggravating factor).
Therefore, the trial court erred in instructing the jury,
through S–5–S and S–6–S, to consider whether “[t]he defendant was
previously convicted of ․ a felony involving the use or threat of
violence to the person.” Miss.Code Ann. § 99–19–101(5)(b)
¶ 113. However, Mississippi Code Section
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.
Miss.Code Ann. § 99–19–105(3)(d) (Rev.2007).
¶ 114. The mitigating evidence presented at
the sentencing hearing consisted of the following: a pastor, a
retired pastor, and one of Gillett's fellow inmates testified
that, while incarcerated, Gillett has become a religious Christian
who leads Bible studies and helps other inmates grow as
Christians; the owner of a landscaping business for whom Gillett
worked for nearly a year in 1997 or 1998 testified that Gillett
was a conscientious employee who produced high-quality work and
would be a useful addition to a maintenance or landscaping crew;
a man who was friends with Gillett from about 2001 to 2003
testified regarding Gillett's heavy drug use during that time
period; Gillett's grandfather's companion, who has known Gillett
since he was a teenager, testified that she knew Gillett to be
respectful, friendly, outgoing, and helpful in that he had done
yard work and fixed things at her and his grandfather's house;
and lastly, Gillett's aunt and mother testified regarding
Gillett's childhood and adult life.
¶ 115. According to his mother's and aunt's
testimony, Gillett had an unstable childhood in the sense that he
and his mother moved frequently, but his mother was a loving
parent who, along with several of his extended family members,
made themselves available to Gillett as a source of support
throughout his life. Gillett was a smart child who did well in
school, played some sports, and was very involved in Boy Scouts.
Gillett's father was an alcoholic throughout Gillett's early
childhood, which resulted in his parents getting divorced and
Gillett not having the presence of a loving father in his daily
life. But when his father became sober, Gillett formed a very
good relationship with him, which lasted until his father passed
away unexpectedly from a heart attack when Gillett was thirteen or
fourteen years old. At the time Gillett's father suffered the
heart attack, Gillett was living with his father, and Gillett was
the one who called for help for his father. Gillett got his GED,
attended some college, and got married, but after his wife asked
for a divorce, he was devastated and started using drugs and
acting unlike the person his mother knew as her son.
¶ 116. We find that this information about
Gillett, presented as mitigating evidence, does 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
¶ 117. Gillett next argues that the trial
court erred in giving instruction S–4–S, regarding the Section
99–19–101(5)(h) “especially heinous, atrocious or cruel”
aggravator. Gillett contends that the instruction is
unconstitutionally vague. This Court, however, has found
instructions identical to S–4–S to be acceptable in numerous
cases, including Havard v. State, 928 So.2d 771 (Miss.2006), in
which it stated:
The trial court's sentencing instruction S–9
defined for the jury what constituted a heinous, atrocious, or
cruel (HAC) capital offense and instructed the jury that it may
consider such, if found, an aggravating circumstance. [The
defendant] concedes in his brief to this Court that we have held
this instruction to be constitutionally sufficient. Nonetheless,
[the defendant] challenges this instruction to be constitutionally
vague. The instruction read as follows:
The Court instructs the jury that in
considering whether the capital offense was especially heinous,
atrocious or cruel; heinous means extremely wicked or shockingly
evil; atrocious means outrageously wicked and vile; and cruel
means designed to inflict a high degree of pain with indifference
to, or even enjoyment of the suffering of others.
An especially heinous, atrocious or cruel
capital offense is one accompanied by such additional acts as to
set the crime apart from the norm of capital murders—the
conscienceless or pitiless crime which is unnecessarily tortuous
to the victim. If you find from the evidence beyond a reasonable
doubt that the defendant utilized a method of killing which caused
serious mutilation, that there was dismemberment of the body prior
to death, that the defendant inflicted physical or mental pain
before death, or that a lingering or tortuous death was suffered
by the victim, then you may find this aggravating circumstance.
This issue is quickly laid to rest. “This
Court has repeatedly held that the ‘especially heinous, atrocious
or cruel’ provision of Miss.Code Ann. § 99–19–101(5)(h) is not so
vague and overbroad as to violate the United States Constitution.”
Stevens v. State, 806 So.2d 1031, 1060 (Miss.2001). See also
Crawford v. State, 716 So.2d 1028 (Miss.1998); Mhoon v. State,
464 So.2d 77 (Miss.1985); Coleman v. State, 378 So.2d 640
(Miss.1979). Indeed [the defendant] himself concedes this
Court's recognition of the constitutionality of this instruction.
Despite this concession, [the defendant] urges this Court to
find that the United States Supreme Court in Shell v. Mississippi,
498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) held this
instruction unconstitutional. We briefly revisit what we stated
a little more than a year ago with regard to this same challenge:
[The defendant] argues that first paragraph of
the above instruction was held unconstitutional by the United
States Supreme Court in Shell v. Mississippi, 498 U.S. 1, 111
S.Ct. 313, 112 L.Ed.2d 1 (1990). [The defendant] further contends
that in Hansen v. State, 592 So.2d 114 (Miss.1991), this Court
announced that the language held unconstitutional in Shell should
not be submitted to juries. Therefore, [the defendant] concludes
that Instruction SP–2 has been determined by the United States
Supreme Court and this Court to be per se objectionable. In
Shell, the Supreme Court found that when used alone, language
identical to that used in the first paragraph of instruction SP–2
was not constitutionally sufficient. 498 U.S. at 2, 111 S.Ct.
313, 112 L.Ed.2d 1. However, in Clemons v. Mississippi, 494 U.S.
738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Supreme Court
determined that the first sentence of the second paragraph was a
proper limiting instruction when used in conjunction with the
language from Shell. This Court has repeatedly held this
identical instruction to be constitutionally sufficient. See
Knox v. State, 805 So.2d 527, 533 (Miss.2002); Puckett v. State,
737 So.2d 322, 359–60 (Miss.1999); Jackson v. State, 684 So.2d
1213, 1236–37 (Miss.1996).
Thorson v. State, 895 So.2d 85, 104 (Miss.2004)
[ (emphasis added) ]. [The defendant] invites us to overturn
firmly entrenched Mississippi precedent on this issue. We
decline to do so. For these reasons, this issue is without
Havard, 928 So.2d at 799–800. Gillett's
arguments regarding the unconstitutionality of instruction S–4–S
fail for the same reasons the arguments of the defendant in Havard
failed. As this Court has repeatedly held this exact jury
instruction to be constitutionally sufficient, we find that the
trial court did not err in giving this instruction.
¶ 118. Next, Gillett argues that the trial
court erred in allowing the jury to consider the “felony murder”
aggravating circumstance—i.e., the aggravating circumstance that
the capital offense took place while Gillett “was engaged, or was
an accomplice, in the commission of, or an attempt to commit, or
flight after committing or attempting to commit, [a] robbery․”
Miss.Code Ann. § 99–19–101(5)(d) (Rev.2007). Gillett argues
that, under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), the aggravating circumstance
of “committing the offense while engaged in robbery” should not
have been presented to the jury during the penalty phase, because
allegations of robbery are what led to the capital murder
conviction in the guilt phase. Gillett concedes that this Court
has ruled contrary to this argument, stating “to the extent that
this Court has ruled contrary to the argument in this Claim, these
holdings should be overruled.”
¶ 119. This Court has held that the alleged
felony underlying the capital-murder conviction may properly be
used as an aggravator. In Ross v. State, 954 So.2d 968
(Miss.2007), this Court stated:
Relying primarily on Ring and Apprendi, [the
defendant] maintains that the use of the underlying felony of
armed robbery as an aggravating circumstance upon which the jury
relied in returning a sentence was improper. However, evidence
of the underlying crime can properly be used both to elevate the
crime to capital murder and as an aggravating circumstance. See
Bennett, 933 So.2d at 954; Goodin v. State, 787 So.2d 639, 654
(Miss.2001); Smith, 729 So.2d at 1223; Bell v. State, 725 So.2d
836, 859 (Miss.1998); Crawford v. State, 716 So.2d 1028, 1049–50
(Miss.1998). Furthermore, the United States Supreme Court has
held that there is no constitutional error in using the underlying
felony as the aggravator. Lowenfield v. Phelps, 484 U.S. 231,
233, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). The Supreme Court
stated in Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct.
2630, 129 L.Ed.2d 750 (1994), that “[t]he aggravating
circumstances may be contained in the definition of the crime or
in a separate sentencing factor (or in both).”
The use of the underlying felony as an
aggravator was not error.
Ross v. State, 954 So.2d 968, 1014 (Miss.2007).
¶ 120. Within this claim that it was improper
to instruct the jury on the aggravating circumstance of
“committing the offense while engaged in robbery,” Gillett argues
that he has a constitutional right to have had the alleged
aggravating circumstances included in his indictment. This Court
specifically addressed this issue in Spicer v. State, 921 So.2d
292, 319 (Miss.2006), in which it explained:
This Court has previously rejected the argument
made by [the defendant] [that his death penalty sentence must be
vacated because the indictment failed to include a statutory
aggravating factor or the mens rea standard required for capital
murder]. See, e.g., Brown v. State, 890 So.2d 901, 918
(Miss.2004); Stevens v. State, 867 So.2d 219, 225–27 (Miss.2003).
We have held that Apprendi and Ring address issues wholly
distinct from the present one, and in fact do not address
indictments at all. Brown, 890 So.2d at 918. The purpose of an
indictment is to furnish the defendants notice and a reasonable
description of the charges against them so that they may prepare
their defense. Williams v. State, 445 So.2d 798, 804 (Miss.1984).
Therefore, an indictment is only required to have a clear and
concise statement of the elements of the crime the defendant is
charged with. Id. “Our death penalty statute clearly states the
only aggravating circumstances which may be relied upon by the
prosecution in seeking the ultimate punishment.” Brown, 890 So.2d
at 918. Therefore, when [the defendant] was charged with capital
murder, he was put on notice that the death penalty may result,
what aggravating factors may be used and the mens rea standard
that was required. See Stevens, 867 So.2d at 227. We find that
[the defendant's] ninth assertion of error is without merit.
Spicer, 921 So.2d at 319.
¶ 121. Therefore, we find that the jury
instruction regarding the aggravating circumstance of “committing
the offense while engaged in robbery” was properly given and that
Gillett did not have a right to have the alleged aggravating
circumstances included in his indictment.
XIII. Whether the trial court erred in
denying Gillett's proposed jury instructions that separately
listed nonstatutory mitigating circumstances.
¶ 122. Gillett's next assignment of error is
that the trial court refused to instruct the jury regarding his
theory of defense at the penalty phase by refusing to give his
“theory of defense instructions,” namely DA–30, DA–31, DA–49,
DA–50, DA–51, DA–52, DA–53, DA–54, DA–55, DA–56, and DA–59, which
separately listed nonstatutory mitigating circumstances.
¶ 123. While the trial court denied these
nonstatutory-mitigator jury instructions, it did provide the
following “catch-all” jury instruction regarding mitigating
Consider the following elements of mitigation
in determining whether the death penalty should not be imposed:
Any aspect of the 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.
¶ 124. This Court has held that “[s]pecific
instructions on non-statutory circumstances need not be given, so
long as a ‘catch-all’ instruction is included that instructs the
jury that they may consider any factors that they may deem
mitigating in their deliberations.” Ross v. State, 954 So.2d 968,
1011 (Miss.2007). The Ross v. State Court continued:
This Court has also held that “catch-all”
instructions do not limit the jury's consideration of mitigating
factors. Simmons v. State, 805 So.2d 452, 499 (Miss.2001).
Under the list of statutory mitigating circumstances in the first
sentencing instruction, the trial court instructed the jury that
they may consider:
Any other matter, any other aspect of the
defendant's character or record, and any other circumstance of the
offense brought to you during the trial of this cause which you,
the jury, deem to be mitigating on behalf of the defendant.
The instruction properly informs the jury about
what may be considered as mitigation evidence. Therefore, the
trial court's refusal of [the defendant's] proposed instruction
does not constitute error.
Id. In addition, this Court has stated that
“the use of the catch-all instruction eliminates the possibility
‘that the jury was unconstitutionally foreclosed from considering
all mitigating circumstances.’ ” Manning v. State, 735 So.2d 323,
352 (Miss.1999) (quoting Berry v. State, 703 So.2d 269, 287
(Miss.1997)). “A catchall instruction is sufficient to encompass
non-statutory mitigating factors.” Id. (quoting Lester v. State,
692 So.2d 755, 799 (Miss.1997)).
¶ 125. Therefore, the catch-all instruction
the trial court gave was sufficient to encompass the nonstatutory
mitigating factors that Gillett argues should have been listed
separately (through inclusion of DA–30, DA–31, DA–49, DA–50,
DA–51, DA–52, DA–53, DA–54, DA–55, DA–56 and DA–59).
Accordingly, we find that the trial court did not err in refusing
to give these proposed instructions.
XIV. Whether the trial court erred in its
acceptance or denial of various other penalty-phase jury
¶ 126. Gillett's next assignment of error is
that the trial court abused its discretion in its acceptance or
denial of various other penalty-phase jury instructions. Gillett
first argues that the trial court should not have given S–1–S,
You should consider and weigh aggravating and
mitigating circumstances, as set forth in another instruction, but
you are cautioned not to be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling.
Gillett argues that this instruction was
contrary to law that holds the jury may consider sympathy.
¶ 127. This Court previously has reviewed
instructions similar to S–1–S and has found them to be proper.
In Howell v. State, 860 So.2d 704 (Miss.2003), this Court
In Turner v. State, 732 So.2d at 952, ․ [t]his
Court upheld the [jury instruction language] which stated “You
should consider and weigh aggravating and mitigating
circumstances, as set forth later in this instruction, but you are
cautioned not to be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion, or public feeling.”
Turner v. State, 732 So.2d at 952. See also Evans v. State, 725
So.2d 613, 690–91 (Miss.1997); Holland v. State, 705 So.2d 307,
351–52 (Miss.1997). Indeed, this Court held that a defendant is
not entitled to a sympathy or mercy instruction and allowing such
an instruction results in a jury verdict that is based on “whim
and caprice.” Id. (citing Holland v. State, 705 So.2d 307, 351–52
(Miss.1997)). In Turner, this Court found that “pity”, “mercy”
and “sympathy” are synonymous. Id. Case law precedent clearly
allows an instruction such as that given to the jury in this case.
Accordingly, this issue is without merit.
Howell, 860 So.2d at 760. Therefore, the
trial court did not err in giving instruction S–1–S.
¶ 128. Gillett also claims that the trial
court erred in denying instruction DA–61, which read “I instruct
you that you may not totally disregard sympathy for Mr. Gillett in
your deliberations as to the appropriate sentence in this matter.”
As this Court has noted, “a defendant is not entitled to a
sympathy or mercy instruction and allowing such an instruction
results in a jury verdict that is based on ‘whim and caprice.’ ”
Id. See also id. at 759 (“This Court has repeatedly held that
‘capital defendants are not entitled to a mercy instruction.’
Jordan v. State, 728 So.2d 1088, 1099 (Miss.1998)․ ‘The United
States Supreme Court has held that giving a jury instruction
allowing consideration of sympathy or mercy could induce a jury to
base its sentencing decision upon emotion, whim, and caprice
instead of upon the evidence presented at trial.’ Id. ․”).19
Therefore, the trial court did not err in denying instruction
¶ 129. Gillett next argues that the trial
court erred in giving instructions S–2–S and S–7–S, contending
that they were contradictory, and that S–2–S was unlawful. S–2–S
You are advised that just because these
instructions have listed certain mitigating circumstances you are
allowed to consider, does not mean that those or any other
mitigating circumstances exist. It is only for you, the jury, to
determine which mitigating circumstances exist.
Gillett argues that instructing the jury that
“It is only for you, the jury, to determine ․” as opposed to
instructing something like,” It is for each individual juror to
determine ․,” makes S–2–S an incorrect statement of the law.
¶ 130. Gillett argues that S–7–S is a correct
statement of the law, and contradictory to S–2–S. S–7–S stated:
The Court instructs that you, as individual
jurors, must consider mitigating circumstances. Therefore, even
if all other eleven jurors find that a certain mitigating
circumstance does not exist, if you believe it does exist, you
must find that mitigating circumstance, and weigh it in your
After Gillett objected to S–2–S at trial and
the parties discussed the instruction, the trial court stated: “I
am going to give both of them. Take them together is a correct
statement of the law.”
¶ 131. We agree with the trial court that,
given together, S–2–S and S–7–S provide a correct statement of the
law. See Brown v. State, 890 So.2d 901, 919 (Miss.2004) (“On
review of jury instructions, we do not isolate the individual
instruction attacked, but rather we read all of the instructions
as a whole.”). Moreover, this Court has held that an instruction
such as S–2–S, which references the jury members using the phrase
“you, the jury,” does not imply that the jury must act unanimously
when considering the existence of mitigating circumstances. Evans
v. State, 725 So.2d 613, 694 (Miss.1997).
¶ 132. Therefore, because S–2–S is not
inconsistent with S–7–S, and moreover because S–2–S standing alone
would not be an improper instruction, the trial court did not err
in giving these two instructions.
¶ 133. Gillett goes on to argue that the
trial court further erred in refusing his proposed instructions
(“DA–28, DA–29, DA–40 and/or DA–44” 20
), which he argues “would have, potentially at least, alleviated
the disastrous inconsistency caused by S–2–S and S–7–S.” As just
stated, S–2–S and S–7–S are not inconsistent. Therefore, the
trial court did not err in refusing to give additional jury
instructions that Gillett argues were necessary to remedy the
¶ 134. Gillett next argues that the trial
court erred in denying instruction DA–13, which stated:
As the death penalty is never required, you may
always find that Mr. Gillett should be sentenced to life in prison
or life without the possibility of parole.
However, within instruction DA–37, the jury was
instructed, “You, the jury, always have the option to sentence Mr.
Gillett to life imprisonment, whatsoever findings you make.”
Thus, the substance of DA–13 was fairly covered elsewhere in the
jury instructions, and the trial court did not err in denying it.
¶ 135. Next, Gillett argues that the trial
court erred in denying his “presumption-of-life” instructions:
DA–10, DA–11, DA–19, and DA–39. This Court addressed the issue of
whether a defendant is entitled to presumption-of-life
instructions in Brown v. State, where it held:
We have repeatedly said that we reject the
“proposition that a defendant should go into the sentencing phase
with a presumption that life is the appropriate punishment.”
Watts v. State, 733 So.2d 214, 241 (Miss.1999) (internal quotes
and citation omitted); see also Jackson v. State, 684 So.2d 1213,
1233 (Miss.1996). We adhere to that standard today. Because
the judge did not abuse his discretion in excluding the proposed
instructions, this assignment of error is without merit.
Brown v. State, 890 So.2d 901, 920 (Miss.2004).
¶ 136. Moreover, even though Gillett was not
entitled to a presumption-of-life instruction, the trial court
instructed the jury regarding this issue in instructions DA–37 and
DA–65. DA–37 stated:
You may sentence Mr. Gillett to life
imprisonment if you find that only one mitigating circumstance
exists and multiple aggravating circumstances exist. You may
also sentence Mr. Gillett to life imprisonment if you find that no
mitigating circumstance exists. You are not required to find any
mitigating circumstance in order to return a sentence of life
imprisonment. Similarly, the finding of an aggravating
circumstance does not require that you return a sentence of death,
nor would your individual determination that aggravating
circumstances outweigh mitigating circumstances.
You, the Jury, always have the option to
sentence Mr. Gillett to life imprisonment, whatsoever findings you
Only if all twelve of you unanimously agree
beyond a reasonable doubt that death is the appropriate punishment
may you impose the sentence of death. In the course of your
deliberations, do not hesitate to re-examine your own views and
change your opinion if you are convinced it is wrong. On the
other hand, do not surrender your honest conviction as to what you
feel the sentence in the case should be just because of the
opinions of your fellow jurors or just so that you can all agree
on a verdict.
Thus, it was made clear to the jury that it
could choose to sentence Gillett to life imprisonment regardless
of the findings it made in the penalty phase, and the general
substance of Gillett's proposed presumption-of-life instructions
was communicated to the jury through DA–37 and DA–65.
¶ 137. Therefore, the trial court did not err
in refusing Gillett's presumption-of-life jury instructions,
numbered DA–10, DA–11, DA–19, and DA–39.21
¶ 138. Gillett next argues
that the trial court erred in denying instructions DA–66 and
DA–67, which advise the jury of the consequences of its failure to
agree unanimously on a sentence. DA–66 stated: “If you cannot,
within a reasonable time, agree as to punishment, I will dismiss
you and impose a sentence of life without the benefit of parole.
If you cannot agree, know that any of you may inform the bailiff
of this.” D–67 stated: “If you fail to reach a verdict as to
penalty this will have no effect on the verdict you have already
returned at the guilt trial. If you do not reach a verdict as to
penalty, Mr. Gillett will be sentenced [sic ] life imprisonment
without the possibility of parole or probation.”
¶ 139. This Court reviewed nearly identical
instructions in Edwards v. State, 737 So.2d 275 (Miss.1999), and
found that the trial court did not err in denying them. The
Edwards Court explained:
[The defendant] also assigns as error the trial
court's refusal of Instruction D–S10 which read:
The court instructs the jury that if you do not
agree upon punishment the court will sentence the defendant to
life imprisonment without possibility of parole or early release.
He claims that this instruction correctly
stated the law according to Miss.Code Ann. § 99–19–103 [as does
Gillett]. Miss.Code Ann. § 99–19–103 (1994) provides that “[i]f
the jury cannot, within a reasonable time, agree as to punishment,
the judge shall dismiss the jury and impose a sentence of
imprisonment for life.”
However, jury instructions “are not to be read
unto themselves, but with the jury charge as a whole․ Instructions
CS–2 and CS–3 make clear the options the jury had in returning to
(1) ․ we ․ unanimously find the Defendant
should suffer death.
(2) We, the Jury, find that the Defendant
should be sentenced to life imprisonment without the possibility
of parole or early release.
(3) We, the Jury are unable to unanimously
agree on punishment.
Thus, when read as a whole, the jury
instructions properly informed the jury that it could return to
the courtroom and report that it was unable to agree unanimously
on punishment. Wilcher v. State, 697 So.2d 1123, 1136
(Miss.1997). D–S10 was a cumulative instruction. There is no
error in the denial of a cumulative instruction. Walker v. State,
671 So.2d at 613.
Moreover, even if the jury had never been
instructed on what would happen if they could not agree, there
would have been no error. In Stringer v. State, this Court held
that the trial judge did not err by failing to inform the jury
that, “if they were unable to agree within a reasonable time on
the punishment to be imposed, [the defendant] would be sentenced
to life imprisonment.” Stringer, 500 So.2d 928, 945 (Miss.1986).
Wilcher v. State, 697 So.2d at 1136–37.
Therefore, this assignment of error is without merit.
Edwards, 737 So.2d at 316–17.
¶ 140. In the instant case, as in Edwards,
the jury was instructed (in S–5–S and S–6–S) regarding the three
potential outcomes they could reach: death, life imprisonment
without parole, or inability to agree unanimously on a punishment.
Thus, read as a whole, the jury instructions properly informed
the jury that it could return to the courtroom and report an
inability to agree unanimously on a punishment. Therefore,
because this Court has held that instructions like DA–66 and DA–67
are not required and also that they are cumulative in cases like
the instant case, the trial court did not err in denying these
¶ 141. Gillett next argues that the trial
court erred in denying instructions DA–5 and DA–63. DA–5 stated:
You have found Mr. Gillett guilty of capital
murder. You must now decide the appropriate punishment in this
Before I instruct you on specific matters
regarding Mr. Gillett's sentence, I will instruct you on the
general principles that will govern your deliberations in this
In explaining your duties, I must offer as
complete an explanation as possible concerning the legal matters
that must govern your deliberations. I cannot stress to you
enough that the focus of your deliberations during this phase is
not the same as in an ordinary case. Punishment by death is a
unique punishment. It is final. It is irrevocable. You must
render a decision based on the evidence free from anger and
(Emphasis added.) The State objected to this
instruction at trial, stating: “The instruction is fair until you
get down to the third to last line. It's a comment that is
inappropriate in a jury instruction. It's: Punishment by death
is a unique punishment.”
¶ 142. In Thorson v. State, this Court
reviewed an instruction nearly identical to the italicized portion
of DA–5 above, and found no error in the trial court's denial of
the instruction. Thorson v. State, 895 So.2d 85, 109–110
(Miss.2004). The Thorson Court explained:
[The defendant] cites three cases to support
these propositions. Woodson v. North Carolina, 428 U.S. 280,
303–04, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (“[D]eath is a
punishment different from all other sanctions in kind rather than
degree.”); Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909,
2931, 49 L.Ed.2d 859 (1976) (“[D]eath as a punishment is unique in
its severity and irrevocability.”); Flores v. Johnson, 210 F.3d
456, 459 (5th Cir.2000) (“Death is the most final, and most
severe, of punishments.”). While these general propositions are
true, none of these cases stands for the proposition that the jury
must receive an instruction stating that a death sentence
proceeding is different from an ordinary criminal proceeding.
[The defendant] has failed to cite any relevant authority in
support of this assertion. This Court has continuously held that
such failure to cite relevant authority “obviates the appellate
court's obligation to review such issues.” Simmons v. State, 805
So.2d at 487 (citing Williams v. State, 708 So.2d 1358, 1362–63
(Miss.1998)). Therefore, this issue is not properly before the
Court and is procedurally barred from our consideration.
Thorson, 895 So.2d at 109–10. In the instant
case, to support his argument that DA–5 should have been given,
Gillett cites the same three cases the defendant in Thorson cited,
as well as Gilmore v. Taylor, 508 U.S. 333, 113 S.Ct. 2112, 124
L.Ed.2d 306 (1993). Gilmore, like the other three cases, does not
stand for the proposition that the jury must receive an
instruction stating that a death-sentence proceeding is different
from an ordinary criminal proceeding. See Thorson, 895 So.2d at
¶ 143. Gillett goes on to argue that, even if
this Court finds that the State's objection to a portion of DA–5
was well-taken, this Court must then consider whether the trial
court erred in refusing the remainder of DA–5. First, regarding
the final sentence of DA–5—“You must render a decision based on
the evidence free from anger and prejudice.”—we note that S–1–S
fairly covered this by instructing, “․ you are cautioned not to be
swayed by mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion or public feeling.” Second, after the
trial court refused DA–5, Gillett did not request that the portion
of DA–5 to which no specific objection was made be given, and the
trial court does not have an obligation to give instructions sua
sponte nor to give every instruction allowable in a capital case.
Gray v. State, 728 So.2d 36, 60 (Miss.1998); Jordan v. State,
786 So.2d 987, 1025 (Miss.2001).
¶ 144. Therefore, the trial court did not err
in denying DA–5.
¶ 145. As mentioned, Gillett also contends
that the trial court erred in denying DA–63, which stated:
If Roger Gillett is sentenced to life
imprisonment without the possibility of parole or early release
then he will spend the rest of his natural life incarcerated by
the Mississippi Department of Corrections. His life sentence
without possibility of probation or parole cannot be reduced or
The court instructs the jury that if you
sentence Mr. Gillett to death, he will be executed by the State of
In Flowers v. State, 842 So.2d 531 (Miss.2003),
this Court was presented with the question of whether a jury
should receive an instruction clarifying what life without parole
means. The Flowers Court held that, “[b]y giving only the
sentencing options of death or life imprisonment without parole,
the trial judge properly gave the jury all the instructions that
were needed.” Flowers, 842 So.2d at 556–57. Therefore, since
the jury in the instant case was informed of the sentencing
options of death or life imprisonment without parole, the trial
court did not err in denying DA–63.
¶ 146. Next, Gillett argues that the trial
court erred in denying his mercy instruction, instruction DA–38,
which stated: “The appropriateness of the exercise of mercy can
itself be a mitigating factor you may consider in determining
whether the State had proved beyond a reasonable doubt that the
death penalty is warranted.” Gillett cites Kansas v. Marsh, 548
U.S. 163, 176 n. 3, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) as
support for this instruction, and argues that Gillett “was
constitutionally entitled to Instruction DA–38 in light of the
instructional error briefed [above, under this section heading].”
¶ 147. This Court reviewed this exact
instruction in Chamberlin v. State, 989 So.2d 320 (Miss.2008), and
held that the trial court did not abuse its discretion in refusing
it. The Chamberlin Court explained:
Chamberlin argues that Kansas v. Marsh, 548
U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), required the
trial court to give a mercy instruction in this case. However,
Marsh does not speak to or even consider the issue of whether a
mercy instruction is required. Rather, the Marsh Court held that
“the States enjoy a constitutionally permissible range of
discretion in imposing the death penalty.” Marsh, 126 S.Ct. at
2525 (quoting Blystone v. Pennsylvania, 494 U.S. 299, 308, 110
S.Ct. 1078, 108 L.Ed.2d 255 (1990)) (internal quotations omitted).
“[T]he States are free to determine the manner in which a jury
may consider mitigating evidence,” i.e., whether the evidence
should be viewed through the lens of mercy. Marsh, 126 S.Ct. at
That discretion allows trial courts to avoid
the potential arbitrariness of an emotional decision encouraged by
a mercy instruction.
This Court has repeatedly held that “capital
defendants are not entitled to a mercy instruction.” Jordan v.
State, 728 So.2d 1088, 1099 (Miss.1998) (citing Underwood v.
State, 708 So.2d 18, 37 (Miss.1998); Hansen v. State, 592 So.2d
114, 150 (Miss.1991); Williams v. State, 544 So.2d 782, 788
(Miss.1987); Lester v. State, 692 So.2d 755, 798 (Miss.1997);
Jackson v. State, 684 So.2d 1213, 1239 (Miss.1996); Carr v.
State, 655 So.2d 824, 850 (Miss.1995); Foster v. State, 639 So.2d
1263, 1299–1301 (Miss.1994); Jenkins v. State, 607 So.2d 1171,
1181 (Miss.1992); Nixon v. State, 533 So.2d 1078, 1100
(Miss.1987)). “The United States Supreme Court has held that
giving a jury instruction allowing consideration of sympathy or
mercy could induce a jury to base its sentencing decision upon
emotion, whim, and caprice instead of upon the evidence presented
at trial.” Id. (citing Saffle v. Parks, 494 U.S. 484, 492–95, 110
S.Ct. 1257, 1262–64, 108 L.Ed.2d 415 (1990)).
Howell v. State, 860 So.2d 704, 759
Chamberlin v. State, 989 So.2d 320, 342
(Miss.2008). Therefore, because Marsh, the sole case Gillett has
offered as support for DA–38, does not in fact discuss whether a
mercy instruction is required, and because this Court repeatedly
has held that capital defendants are not entitled to a mercy
instruction, we find that the trial court did not err in denying
XV. Whether there was prosecutorial
misconduct during the guilt and penalty phases of the trial.
¶ 148. Prior to trial, Gillett filed a
“Notice of Forensic Argument Offered by the State in the Trial of
the Co–Defendant that Will Be Objectionable if Offered by the
State in this Matter.” Gillett now argues that,
“[n]otwithstanding more than two months notice of specific acts of
forensic misconduct, the State repeated seven of the specific
violations announced in Mr. Gillett's notice.” Gillett then
lists in his brief the seven alleged violations,22
none of which he objected to at trial. Gillett argues that
“[t]here are instances where the failure to contemporaneously
object to a prosecutorial violation during forensic argument shall
only focus further attention on the violation and, therefore, does
not foreclose appellate review of the violation,” citing United
States v. Sawyer, 347 F.2d 372, 374 (4th Cir.1965).23
While ordinarily, if defense counsel does not
object during the course of the Government's closing argument he
may be said to have waived the point, there may be instances where
the failure to object to a grave violation stems from the
attorney's fear that an objection would only focus attention on an
aspect of the case unfairly prejudicial to his client. If the
presiding judge perceives that trial counsel has been placed in
this dilemma, it is the judge's duty, on his own initiative, to
interrupt, admonish the offender, and instruct the jury to
disregard the improper arguments.
Sawyer, 347 F.2d at 374 (citations omitted).
¶ 149. In response, the State argues that
there was no prosecutorial misconduct, but even if there were,
Gillett is procedurally barred from raising the alleged instances
of prosecutorial misconduct on appeal, because he failed to object
contemporaneously at trial and also failed to raise these
allegations in his motion for new trial. Further, the State
contends that Sawyer supports the State's view, rather than
Gillett's, in that the Sawyer Court ultimately held (in the
paragraph directly following the quoted portion of Sawyer above):
However, we are satisfied that in this case the
conduct of the prosecutor is not open to criticism and that the
reason no objection was voiced against the Assistant United States
Attorney's argument is simply that the defense counsel perceived
no ground for objection, as we perceive none.
Id. at 374. The State argues that, “[a]s in
Sawyer, there were no grounds to object to the State's closing
arguments and Gillett therefore sat silent.”
¶ 150. First, this Court repeatedly has held
that failure to object contemporaneously at trial waives any claim
of error on appeal. Howell v. State, 860 So.2d 704, 756
(Miss.2003); Walker v. State, 671 So.2d 581, 597 (Miss.1995)
(“This Court has repeatedly held that ‘[i]f no contemporaneous
objection is made, the error, if any, is waived. This rule's
applicability is not diminished in a capital case.’ ”); Williams
v. State, 684 So.2d 1179, 1203 (Miss.1996) (“ ‘Where a defendant
fails to object to a statement by the district attorney during
closing argument, a motion for mistrial after the jury has retired
to consider its verdict comes too late․ Put another way a
contemporaneous objection to the allegedly prejudicial remarks is
required.’ ” (citations omitted)); Lockett v. State, 517 So.2d
1317, 1333 (Miss.1987) ( “This Court on numerous occasions has
refused to consider the issue of prosecutorial misconduct where
the defendant did not raise it at trial and we so refuse to do so
today.”). This Court has explained the rationale for requiring
The Supreme Court is a court of appeals, it has
no original jurisdiction; it can only try questions that have
been tried and passed upon by the court from which the appeal is
taken. Whatever remedy appellant has is in the trial court, not
in this court. This court can only pass on the question after
the trial court has done so․There are three basic considerations
which underlie the rule regarding specific objections. It avoids
costly new trial. It allows the offering party an opportunity to
obviate the objection. Lastly, a trial court is not put in error
unless it had an opportunity to pass on the question․ In death
penalty cases, the contemporaneous objection rule is applicable.
Williams, 684 So.2d at 1203 (internal
quotations and citations omitted).
¶ 151. Furthermore, Gillett does not provide
any support for the contention that, when each of the seven
instances of alleged prosecutorial misconduct occurred, he chose
not to object contemporaneously out of a concern that objecting
would focus further attention on an aspect of the case unfairly
prejudicial to his client.
¶ 152. Therefore, Gillett waived the right to
raise these instances of alleged prosecutorial misconduct on
XVI. Whether the trial court erred in
allowing the introduction of autopsy photographs at the guilt and
¶ 153. Gillett's next assignment of error is
that the trial court erred in allowing autopsy photographs into
evidence during the guilt and penalty phases. In Chamberlin v.
State, 989 So.2d 320 (Miss.2008), Chamberlin likewise objected to
the admission of autopsy photographs of Vernon Hulett and Linda
Heintzelman. Chamberlin, 989 So.2d at 339–40. This Court, in
finding that the trial court did not err in admitting the
photographs, explained the standard of review and proper analysis
that applies to a trial judge's admission of photographs:
Admission of photographs by the trial court is
reviewed for abuse of discretion. Dampier v. State, 973 So.2d
221, 230 (Miss.2008). A decision favoring admissibility will not
be disturbed absent a clear abuse of that judicial discretion.
Id. The discretion of the trial judge is “almost unlimited ․
regardless of the gruesomeness, repetitiveness, and the
extenuation of the probative value.” Id. (quoting Williams v.
State, 544 So.2d 782, 785 (Miss.1987) ․ “Some probative value is
the only requirement needed in order to support a trial judge's
decision to admit photographs into evidence.” Jones v. State, 920
So.2d 465, 476–77 (quoting Jordan v. State, 728 So.2d 1088, 1094
(Miss.1998) ․); McIntosh v. State, 917 So.2d 78, 84 (Miss.2005).
“So long as a photograph has probative value and its introduction
serves a meaningful evidentiary purpose, it may still be
admissible despite being gruesome, grisly, unpleasant, or even
inflammatory.” Dampier, 973 So.2d at 230 (citations omitted).
But see McNeal v. State, 551 So.2d 151 (Miss.1989)) (the solitary
instance where this Court held a photograph, a close-up of the
victim's partly decomposed skull, was gruesome and lacked an
evidentiary purpose and was more prejudicial than probative). A
photograph has a meaningful evidentiary purpose when it: (1) aids
in describing the circumstances of the killing; (2) describes the
location of the body or cause of death; or (3) supplements or
clarifies witness testimony. Dampier, 973 So.2d at 230.
Similarly, autopsy photographs are admissible
only if they possess probative value. Hodges v. State, 912 So.2d
730, 781–82 (citing Puckett v. State, 737 So.2d 322, 338
(Miss.1999); Noe v. State, 616 So.2d 298 (Miss.1993)). The
comment to Mississippi Rule of Evidence 401 states that if there
is any probative value, the rule favors admission of the evidence.
Thorson, 895 So.2d 85, 120 (Miss.2004).
Chamberlin, 989 So.2d at 340.
¶ 154. At trial, the State qualified all of
the autopsy photographs it intended to offer into evidence as
being of assistance to the pathologist, Dr. Pojman, in explaining
the types of injuries the victims suffered. The following line
of questioning took place between the State and Dr. Pojman:
BY MR. WEATHERS:
Q. Before proceeding any further, would it be a
fair statement, Doctor, to make to this jury that during the
course of your examination of both Ms. Heintzelman and Mr. Hulett
that a number of photographs were taken to document not only what
you saw and observed but also what occurred as you proceeded with
both the external and also the internal examination?
A. There were numerous photographs taken by
myself and also by law enforcement.
Q. All right. Would you have an estimate as
to how many photographs were taken, say, of Ms. Heintzelman during
the course of the examination that you're describing today?
A. I know I took probably around one hundred
plus photographs. And then, again, law enforcement, I do not
know how many they took.
Q. So quite a number there?
A. There are a large number, yes.
Q. All right. Would the same thing be true of
A. That is correct. There's not as many but
there are still quite a few.
Q. And before coming here today, is it not true
that I asked you to simply select a few photographs that would be
representative that would assist you in explaining the injuries
that you saw to the jury?
A. That is correct.
In addition, throughout the State's questioning
of Dr. Pojman, it repeatedly asked him if the specific photo that
was about to be discussed and introduced into evidence would
assist him in explaining to the jury the location, type, and
number of injuries on the victims' bodies, and Dr. Pojman always
answered in the affirmative.
¶ 155. The thirteen autopsy photographs to
which Gillett objects on appeal are those that were chosen by Dr.
Pojman for the purpose of helping him describe to the jury the
injuries the victims suffered. A few of the photographs were
introduced to show the initial state of the victims' bodies as
received by Dr. Pojman, and the remainder depicted different parts
of the victims' bodies to illustrate the various injuries they
suffered. The photographs were not repetitive; each depicted
¶ 156. As announced in Chamberlin, “[t]he
question as to each photograph is whether it: (1) had probative
value and (2) aided in described [sic ] the circumstances of the
killing, described the location of the body and cause of death, or
supplemented or clarified witness testimony.” Chamberlin, 989
So.2d at 341. Each picture at issue in the instant case
satisfied these two requirements. Further, “[i]n order to
exclude any photograph, the trial court would have been required
to find as to any particular photograph that, pursuant to
Mississippi Rule of Evidence 403, the probative value of such
photograph was substantially outweighed by the danger of unfair
prejudice.” Id. Considering Rule 403 and the case record, we find
that the trial court did not abuse its discretion in allowing the
introduction of the autopsy photos at the guilt and penalty
XVII. Whether, in light of all Gillett's
previous claims, Gillett's death sentence is the product of an
invalid penalty phase that violated his constitutional rights.
¶ 157. Gillett's next assignment of error is
that his death-penalty sentence is the product of an invalid
penalty phase. He argues that, based on the errors he has
alleged regarding the penalty phase, “the execution of Mr. Gillett
would amount to nothing more than the unreliable, arbitrary and
capricious killing” which would be “intolerable under the Eighth
and Fourteenth Amendment as well as Article Three, Section 28 of
the Mississippi Constitution.” Gillett emphasizes that the State
has the burden in the penalty phase of proving aggravating
circumstances beyond a reasonable doubt. He also points to the
alleged “host of instructional errors” committed during the
¶ 158. Arguments like Gillett's
cumulative-error argument, contending that the State failed to
carry its burden of proof throughout the penalty phase and that
the defendant was deprived of his due-process rights, have been
addressed by this Court before. In Thorson v. State, this Court
[The defendant] argues that in light of the
previous issues, his sentence of death is the end result of an
invalid penalty phase. Therefore, his execution would amount to
an “arbitrary and capricious” killing in violation of the Eighth
and Fourteenth Amendments to the United States Constitution as
well as Article 3, Section 28 of the Mississippi Constitution.
This argument amounts to a cumulative error argument. This Court
has previously found no reversible errors. If there is “no
reversible error in any part, so there is no reversible error to
the whole.” McFee v. State, 511 So.2d 130, 136 (Miss.1987). See
also Caston v. State, 823 So.2d 473, 509 (Miss.2002); Hicks v.
State, 812 So.2d 179, 195 (Miss.2002). Therefore, this issue is
Thorson, 895 So.2d at 114.
¶ 159. As the trial court did not commit any
reversible errors in the penalty phase, Gillett's cumulative-error
argument must fail. Id. See also Doss v. State, 709 So.2d 369,
XVIII. Whether Gillett's death sentence is
arbitrary, in violation of Mississippi Code Section
¶ 160. Gillett's next assignment of error is
that “in light of the totality of the preceding Claims, it is
respectfully submitted it cannot seriously be contended that the
execution of Roger Gillett would be anything less than the absurd
and fatal culmination of an entirely arbitrary sentencing
¶ 161. Aside from pointing to his preceding
claims generally, Gillett does not specify why he believes his
death sentence is arbitrary. He argues that “[c]ertainly, this
Court has granted relief for arbitrariness on a record which
evinces erroneous factors contributing to [a] death sentence less
pervasive than the errors plain on the record at bar”; however,
the cases he cites to support this proposition—Walker v. State,
740 So.2d 873, 890 (Miss.1999), and Taylor v. State, 672 So.2d
1246, 1276 (Miss.1996)—do not in fact support it. In Walker, in
an effort to prove the aggravating circumstance of avoiding
arrest, the State presented improper testimony regarding threats
the defendant allegedly had made to witnesses and regarding the
defendant's alleged affiliation with a gang, without proof that
the defendant had made any threats or was a member of a gang.
Walker, 740 So.2d at 890. This Court found that the admission
of the testimony was “an impermissible, arbitrary factor which the
jury considered in its imposition of the death penalty” and thus
remanded the case for a new sentencing hearing. Id. In Taylor,
this Court found that the trial court erred with regard to the
aggravating-circumstances jury instructions it gave, because three
of the five aggravating-circumstances presented to the jury for
consideration “lack [ed] the requisite proof or evidence to
support the jury's finding of [those] aggravating factors.” 25
Taylor, 672 So.2d at 1274, 1276.
¶ 162. Therefore, based on our review of the
record and a finding that the cases Gillett cites are
distinguishable from the instant case, we conclude that Gillett's
sentence is not based on any impermissible, arbitrary factors.
XIX. Whether Gillett's death sentence is
excessive and disproportionate, in violation of Mississippi Code
¶ 163. Gillett's next assignment of error is
that “there is a great deal about the crime at bar that makes the
execution of the death sentence excessive and disproportionate;
namely that if Roger Gillett is executed, he is executed based on
legally insufficient aggravation and a finding of a statutory
aggravator that, itself, is constitutionally insufficient to
support a death sentence.” Gillett also reasserts his argument
that the jury was “unconstitutionally deprived of adequate
instruction concerning death-eligibility and death-selection․”
¶ 164. Mississippi Code Section
99–19–105(3)(c) requires this Court to determine “[w]hether the
sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant[.]” Miss.Code Ann. § 99–19–105(3)(c) (Rev.2007). This
Court has upheld the death penalty in cases involving capital
murders committed during the commission of a robbery. See, e.g.,
Doss v. State, 709 So.2d 369 (Miss.1997); Evans v. State, 422
So.2d 737 (Miss.1982). Moreover, this Court recently upheld the
death penalty of Chamberlin for committing the same crimes for
which Gillett was convicted. Chamberlin, 989 So.2d 320
(Miss.2008). Therefore, we find that Gillett's death sentence is
neither excessive nor disproportionate.
XX. Whether aggregate error requires
reversal of Gillett's conviction and death sentence as a matter of
federal constitutional law.
¶ 165. Gillett's next argument is that
“should this Court conclude that the previous claims do not
mandate relief, in and of themselves, then ․ based on ․ federal
constitutional law, Mr. Gillett is entitled to appellate relief on
the basis of cumulative error.” When the Fifth Circuit was
presented with a defendant who, like Gillett, alleged a violation
of his constitutional due-process rights by cumulative error, the
Fifth Circuit explained:
In Derden v. McNeel, 978 F.2d 1453, 1454 (5th
Cir.1992), cert. denied, 508 U.S. 960, 113 S.Ct. 2928, 124 L.Ed.2d
679 (1993), the en banc court recognized an independent claim
based on cumulative error only where “(1) the individual errors
involved matters of constitutional dimensions rather than mere
violations of state law; (2) the errors were not procedurally
defaulted for habeas purposes; and (3) the errors ‘so infected
the entire trial that the resulting conviction violates due
process.’ ” Id., quoting Cupp v. Naughten, 414 U.S. 141, 147, 94
S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Meritless claims or
claims that are not prejudicial cannot be cannot be cumulated,
regardless of the total number raised.
Westley v. Johnson, 83 F.3d 714, 726 (5th
¶ 166. In reviewing Gillett's assignments of
error, we found only one error and found that error to be
harmless. Given those findings, and applying the standard set
forth by the Fifth Circuit, we find no violation of Gillett's
due-process rights based on cumulative error.
XXI. Whether Mississippi Code Section
99–19–101 is unconstitutional.
¶ 167. As his final assignment of error,
Gillett argues that “Miss.Code Ann. 99–19–101, the capital
sentencing mechanism in the State of Mississippi, violates his
Eighth and Fourteenth Amendment rights in that the death penalty
constitutes cruel and unusual punishment.”
¶ 168. This Court previously has addressed
this issue and has found that the death penalty as administered in
Mississippi does not violate the U.S. Constitution. Bennett v.
State, 990 So.2d 155, 160–61 (Miss.2008). Therefore, this issue
is without merit.
¶ 169. Based on the foregoing analysis, we
affirm the convictions and sentences that Gillett received in the
Circuit Court of Forrest County for the capital murders of Vernon
Hulett and Linda Heintzelman.
¶ 170. COUNTS I AND II: CONVICTIONS OF
CAPITAL MURDER AND SENTENCES OF DEATH BY LETHAL INJECTION,
¶ 171. I concur in part and in result with
the majority opinion. I write separately to explain my position in
this case. The trial court erred by admitting the expert-witness
testimony of William Jones, the DNA Section Chief of the
Mississippi Crime Laboratory, as the testing methodology failed to
comport with the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), standards. At
trial, Jones testified that the test results allegedly showed that
blood on a tennis shoe recovered from the Kansas landfill matched
Linda Heintzelman's blood. The admission of this evidence was
erroneous because it failed to meet the standards in Daubert
adopted by this Court in Mississippi Transportation Commission v.
McLemore, 863 So.2d 31 (Miss.2003). However, even under the
heightened standard of review in death-penalty cases, this
admission was harmless error due to the overwhelming weight of the
evidence presented at trial against Gillett. It is for these
reasons that I concur in part and in result with the majority
¶ 172. The standard of review for a
conviction of capital murder and sentence of death requires
heightened scrutiny. Brown v. State, 890 So.2d 901, 907
(Miss.2004). “While we may apply different standards for
different questions—for example, a review of the admission of
evidence—we always apply a heightened scrutiny.” Id. “Under this
method of review, all doubts are to be resolved in favor of the
accused because what may be harmless error in a case with less at
stake becomes reversible error when the penalty is death.” Loden
v. State, 971 So.2d 548, 562 (Miss.2007).
¶ 173. In Ross v. State, 954 So.2d 968, 992
(Miss.2007), this Court stated “[t]he admissibility of evidence
rests within the discretion of the trial court, and reversal is
appropriate only when a trial court commits an abuse of discretion
resulting in prejudice to the accused.” Ross, 954 So.2d at 992.
This Court will reverse where the trial court's discretion has
been abused and a substantial right of a party has been affected.
Id. at 996. This Court is mindful that a trial court's
discretion must be exercised within the confines of the
Mississippi Rules of Evidence. Id. See Kolberg v. State, 829
So.2d 29, 55 (Miss.2002) (admissibility of evidence rests within
the discretion of the trial court and this Court will reverse
where the trial court has abused its discretion); Miss. R. Evid.
103(a) (“Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
¶ 174. In McLemore, 863 So.2d at 38, this
Court analyzed the admission and exclusion of expert testimony.
This Court adopted the test as stated in Daubert, and as modified
in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143
L.Ed.2d 238 (1999), to determine admissibility of expert-witness
testimony. McLemore, 863 So.2d at 35.
¶ 175. When the issue arises of whether a
trial court erred by the admission or exclusion of expert
testimony, Mississippi Rule of Evidence 702 provides the framework
for analysis. Rule 702 states:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to
the facts of the case.
Miss. R. Evid. 702. Under Rule 702, expert
testimony may be admitted where it is determined to be both
relevant and reliable. Ross, 954 So.2d at 996 (citing McLemore,
863 So.2d at 38). Relevant testimony is that which assists the
trier of fact in understanding or determining a fact at issue.
Id. Reliable testimony is when an expert's testimony is “based on
the methods and procedures of science, and not merely on
subjective beliefs or unsupported speculation.” Id. at 996–97.
See Daubert, 509 U.S. at 587, 113 S.Ct. 2786.
¶ 176. This Court also considers the Daubert
factors, which are: (1) whether the theory can be, and has been,
tested; (2) whether the theory has been published or subjected to
peer review; (3) any known rate of error; and (4) the general
acceptance that the theory has garnered in the relevant expert
community. Edmonds v. State, 955 So.2d 787, 791 (Miss.2007)
(citing Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786).
¶ 177. The testimony presented at the
pretrial Daubert hearing, as it related to the testing methods
used on a blood sample stored in a red-top vial, did not meet
Daubert standards. Jones's expert testimony proved to be
irrelevant and unreliable, therefore, his testimony and consequent
test results should have been excluded at trial. The blood-test
results were woefully short and were not based on reliable
principles or methodologies, which in turn undermined the
relevance of the results.
¶ 178. Jones testified about the various
types of tops for blood-sample tubes. The vast majority of the
crime lab's testing samples have either purple or yellow tops.
Purple-top tubes contain EDTA, a preservative. Yellow-top tubes
also have a preservative in them. Red-top tubes, in contrast,
contain no preservative. This means that a blood sample
collected and stored in a red-top tube has nothing to prevent
blood from clotting, from producing bacteria, or from decomposing
in the tube.
¶ 179. The State requested that the crime lab
compare two blood samples from the victims with blood found on a
tennis shoe to determine whether there was a DNA match. Jones
testified that, although he characterized the blood samples of
Heintzelman and Hulett on his reports to be “poor” and
“putrefied,” respectively, the DNA evidence on the shoe matched
Heintzelman's blood sample.
¶ 180. Jones also testified about the written
protocol used by the crime lab when conducting testing. He said
the crime laboratory has a written protocol for DNA testing. The
protocol has been tested in validation studies and is accepted as
a reliable method of collecting, storing, and analyzing blood
samples. While the protocol does not explicitly exclude
red-top-tube testing, the protocol, according to Jones,
specifically mentions that purple-top tubes are preferred for
samples. Jones stated that he did not know of a validation study
that explicitly permitted the use of red-top tubes for DNA
comparisons. Jones stated that a purple-top tube was preferred,
but that he was “absolutely convinced that if you get a DNA
profile from a red-top tube, that it would be the same as from the
purple-top tube of that individual.” He provided no validation
studies to support this statement.
¶ 181. Dr. D'Eustachio also testified at the
hearing and expressed his opinion that the crime lab (1) did not
follow the testing standards contained in an FBI Quality Assurance
Audit for Forensic DNA and Convicted Offender DNA Databasing, and
(2) the results of the DNA testing were not based on reliable
scientific principles or methodology. He stated that performing
an analysis without a validation protocol would be similar to an
“experiment.” Likewise, the test results, in Dr. D'Eustachio's
opinion, were unreliable due to an irregularity in the peak
heights in the results. Further, even if the results were
explainable with reasons for the causes of the irregular pattern,
Dr. D'Eustachio opined that a validation study needed to be
conducted. He stated:
I couldn't see any regularity in the pattern or
any other symptom that would even let me make a good hypothesis.
And even if I could make a good hypothesis as to what might be
causing this, of course one would then need to do a validation
study in which one tried to repeat those conditions and cause the
same kind of abnormal variation to occur again, then at least we
would understand what was causing it.
Dr. D'Eustachio determined that the test
results were irregular and could not be interpreted to a
reasonable degree of medical certainty.
¶ 182. Because the DNA testing failed to
follow the appropriate protocol and was not based on any
validation study for red-top tubes, the testing and, ultimately,
the results failed to meet Daubert standards. Edmonds, 955 So.2d
at 791. The DNA evidence was not collected and tested in
compliance with reliable scientific principles or methodologies.
¶ 183. For these reasons, the trial court
erred by admitting the State's expert testimony on its DNA
¶ 184. We must now determine whether
admitting this evidence was harmless error. In Kolberg v. State,
829 So.2d 29, 67 (Miss.2002), a death-penalty case, this Court
stated the basic test for harmless error as ‘the inquiry is not
whether the jury considered the improper evidence or law at all,
but rather, whether the error was unimportant in relation to
everything else the jury considered on the issue in question.”
Kolberg, 829 So.2d at 67 (quoting Tanner v. State, 764 So.2d 385,
¶ 185. This test for harmless error reaches
back to the United States Supreme Court case Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
“The Chapman test is whether it appears ‘beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.’ ” Thomas v. State, 711 So.2d 867, 872
(Miss.1998). “Nonstructural, constitutional errors in the face of
‘overwhelming evidence of guilt’ are harmless errors.” Brown v.
State, 995 So.2d 698, 704 (Miss.2008). In Brown, this Court
The U.S. Supreme Court “ha[s] repeatedly
recognized that the commission of a constitutional error at trial
alone does not entitle a defendant to automatic reversal.
Instead, ‘most constitutional errors can be harmless.’ ”
Washington v. Recuenco, 548 U.S. 212, 218, 126 S.Ct. 2546, 165
L.Ed.2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1, 8,
119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).
Brown, 995 So.2d at 704.
¶ 186. In Holland v. State, 587 So.2d 848,
865 (Miss.1991), this Court determined whether the admission of a
wash cloth was error in a death-penalty case. While the Court
determined that the trial court erred by admitting a wash cloth
recovered from a grave because it lacked connection to Holland or
his home, the admission was harmless because of the overwhelming
weight of the evidence against the defendant. Id.
¶ 187. Like this Court's decision in Holland,
the admission of the expert-witness testimony at Gillett's trial
was harmless error based on the overwhelming weight of the
evidence. Indeed, it is reasonable to conclude that the
erroneous admission of the DNA comparison results of the victims'
blood to the bloody tennis shoe recovered from the Kansas landfill
had little or no effect on the guilty verdict reached by the jury.
¶ 188. Investigation led to the recovery of
seven garbage bags of items from a Kansas landfill. Employees
from the landfill stated that Gillett and a female had disposed of
items on two occasions. Personal property belonging to Hulett
and Heintzelman were recovered from the garbage bags. The
recovered items included Hulett's wallet with his driver's
license; Heintzelman's wallet with her driver's license; a work
shirt and pants with Hulett's name on them; a blood-stained
crocheted pillow, later determined to match pillows from Hulett's
and Heintzelman's residence in Hattiesburg; and New Balance
tennis shoes with blood-like stains.
¶ 189. In Hattiesburg, law enforcement
officers discovered a shoe print with a reddish stain at Hulett's
and Heintzelman's residence, temporarily shared with Gillett and
his girlfriend, Lisa Chamberlin. One of the tennis shoes
recovered from the Kansas landfill matched the shoe print in
Hattiesburg and was determined to be the source of the print.
Simply from the evidence recovered at the landfill, whether the
blood on the tennis shoe matched Heintzelman's blood was
inconsequential. These facts, in conjunction with all the other
competent evidence put forth, render the improper DNA evidence
¶ 190. At trial, other overwhelming evidence
was produced for the jury's consideration. Some of this evidence
included statements from Gillett's friends that Gillett said that
he had taken the truck, killed the owners, and the owners were in
the back of the truck. Law enforcement officers found
Heintzelman's truck and a freezer containing the victims' bodies
at the Gillett farm. Hulett's mother identified the freezer as
belonging to the victims. Gillett's fingerprints were on the
freezer and on the tape securing the freezer lid in a closed
position. Also, the victims' home in Hattiesburg showed signs of
foul play such as blood-like stains, ripped-out carpeting, and a
¶ 191. Given the overwhelming evidence
produced at trial, the admission of the DNA testimony was
¶ 192. For the above stated reasons, I concur
in part and in result with the majority opinion.
¶ 193. Though not alleged in the indictment,
the State chose to proceed on the theory that Roger Gillett
committed capital murder by killing Linda Heintzelman and Vernon
Hulett while robbing Heintzelman of her Dodge pickup truck. At
trial, the State failed to adduce even the slightest evidence that
the taking of the truck was in any way related to the murders.
Having failed to prove that Gillett robbed Heintzelman of her
vehicle, or that the murders were committed “during the commission
of” this alleged robbery, this conviction of capital murder should
not stand. Accordingly, I respectfully dissent and would reverse
¶ 194. However, even if the State had proven
that a robbery occurred, and that the robbery and murders
constituted a “continuous transaction” sufficient to prove capital
murder, the Court would be required to reverse the sentence of
death for two additional reasons. First, the majority correctly
finds that it was error for the jury to consider a previous
violent felony as an aggravator, but concludes that the error was
harmless. I respectfully disagree that such error can be
harmless, as we are an appellate court without authority to
reweigh aggravating and mitigating circumstances. That is the
business of juries, not jurists. Any legislative mandate to the
contrary is an unconstitutional directive on a purely judicial
¶ 195. Second, as with the robbery
aggravator, the State failed to adduce any proof that Gillett
committed the murders in an effort to avoid arrest. Indeed, the
State did not contend that Gillett's motive in killing his victims
was to avoid apprehension by authorities. Therefore, it was
error to instruct the jury to consider this as an aggravating
¶ 196. A death sentence based on three
invalid aggravating factors should be reversed.
¶ 197. The State attempted to prove that the
murders occurred while “engaged in the commission of” a robbery,
and that the property that was the object of the robbery was
Heintzelman's truck. Miss.Code Ann. § 97–3–19(2)(e) (Rev.2006).
Robbery requires “(1) felonious intent, (2) force or putting in
fear as a means of effectuating the intent, and (3) by that means
taking and carrying away the property from his person or in his
presence.” Lima v. State, 7 So.3d 903, 909 (Miss.2009) (quoting
Walker v. State, 913 So.2d 198, 224 (Miss.2005)). While it is
true that “the intent to rob ․ can be shown from the facts
surrounding the crime,” Lima, 7 So.3d at 909, there must be an
evidentiary basis for such intent, and a jury is not permitted to
rely on mere speculation or conjecture. Brazzle v. State, 13
So.3d 810, 818 (Miss.2009).
¶ 198. Gillett argues that the State failed
to meet its burden of providing such an evidentiary basis because
there was no proof that he or his codefendant had formed the
intent to rob Heintzelman of her truck before the murders took
place. The majority rejects Gillett's claim by concluding that
there was evidence that the taking of the truck and the murders
were parts of the same “continuous chain of events,” yet the facts
in evidence indicate an obvious break in the chain.
¶ 199. According to the State's evidence, the
murders occurred on or about March 20, 2004; but Gillett and his
codefendant, Lisa Jo Chamberlin, did not remove Heintzelman's
truck from the residence until days later. There was
uncontradicted testimony that Gillett and Chamberlain remained in
Hattiesburg for days following the murders, visiting relatives and
attending to other matters, while the truck remained in its
¶ 200. Hulett's nephew, Michael Hester,
testified that he visited his uncle's home on March 20, and
although Heintzelman's truck was in the driveway, only Gillett and
Chamberlin were present. Gillett told Michael that Heintzelman
and Hulett had taken a trip to the Gulf Coast. On March 21,
Michael again visited his uncle's house, and again, Gillett and
Chamberlin were the only persons present. On this occasion, he
noticed that the living room carpet was missing. Gillett told
Michael that Hulett had come into some money while on the Coast
and would be bringing new carpet back with him.
¶ 201. That afternoon, Gillett and Chamberlin
walked to Michael's house, where he lived with his grandmother,
Caroline Hester. Ms. Hester was Gillett's aunt and Hulett's
mother. While at the Hester home, Gillett offered to sell
Michael the stereo from Chamberlin's wrecked vehicle. Michael
accepted the offer, and Gillett and Michael then moved the stereo
from Chamberlin's car to Michael's car. Gillett and Chamberlin
ate dinner with the family before leaving.
¶ 202. Two days later, on March 23, Gillett
and Chamberlin returned to the Hester home. Gillett finished
installing the car stereo and played basketball with Michael while
Chamberlin took a shopping trip to Wal–Mart with Ms. Hester.
Just as they had two days before, Gillett and Chamberlin ate
dinner with the family before returning to Hulett's and
¶ 203. The next time anyone heard from or saw
Gillett and Chamberlin was on March 26, 2004. That night,
Gillett called Ms. Hester and told her that Hulett and Heintzelman
had driven him and Chamberlin to Kansas. Gillett was indeed in
Kansas; however, Gillett was driving Heintzelman's truck, and her
and Hulett's corpses were in a freezer in the back of the truck.
On March 26, Gillett met two of his friends at a gas station in
Victoria, Kansas, and told one of them that “he had taken the
pickup and the owners were in the back of it.” Gillett then
asked whether he could store the truck at his friend's house and
said that “he needed help to get rid of [it] ․ because there was
[sic] two bodies in the back.”
¶ 204. These facts do not support a
conviction of capital murder on the theory that Gillett murdered
Heintzelman and Hulett while robbing Heintzelman of her truck.
Multiple activities and events, disconnected from and unrelated to
the homicides, transpired over a period of several days before the
defendants departed the victims' residence in Heintzelman's pickup
truck. The State has proven absolutely no connection between the
killing of the two victims and the theft of the vehicle.
Therefore, it cannot be said that the defendants took the vehicle
from the presence or person of Heintzelman or Hulett as part of a
“continuous chain of events.” The State may have proven that
Gillett and Chamberlin killed two people. The State also may
have proven that these defendants stole a truck that belonged to
one of these decedents, a crime commonly known as auto theft.
Miss.Code Ann. § 97–17–42 (Rev.2006). What the State has not
proven is that they killed anyone while “engaged in the commission
of ․ robbery.” Miss.Code Ann. § 97–3–19(2)(e).
¶ 205. One of the first cases to address this
issue was Pickle v. State, 345 So.2d 623 (Miss.1977). Pickle was
convicted of capital murder for killing during the commission of a
rape. Id. The victim was found nude from the waist down, and
forensic evidence revealed that she had been raped before being
shot in the chest. Id. at 625. On appeal, Pickle argued that to
sustain a conviction for capital murder, the State was required to
prove that the victim's death occurred during the rape. Id. This
Court looked to outside authorities, including a general
discussion from the legal encyclopedia American Jurisprudence, and
held that “where the two crimes are connected in a chain of events
and occur as part of the res gestae, the crime of capital murder
is sustained.” Id. at 627.
¶ 206. As the majority notes in footnote 13
of today's opinion, the Pickle decision included language from
American Jurisprudence that “[t]he felony-murder doctrine does not
apply, however, when the determination to steal property of the
victim is not formed until after the homicide.” Id. at 626
(quoting 40 Am.Jur.2d Homicide § 73 (1968)). The majority then
states that the Pickle court was not adopting the law as defined
by American Jurisprudence. While the particular sentence in
question was dictum, this Court did rely on American Jurisprudence
in formulating its ultimate holding. Moreover, this Court has
since adopted similar language from that very block quote and has
held that “the underlying crime begins where an indictable attempt
is reached.” Goff v. State, 14 So.3d 625, 650 (Miss.2009)
(quoting Pickle, 345 So.2d at 626) (quoting 40 Am.Jur.2d Homicide
§ 73). See also, e.g., Moody v. State, 841 So.2d 1067, 1091
(Miss.2003) (quoting same); Simmons v. State, 805 So.2d 452, 477
(Miss.2001) (quoting same); Duplantis v. State, 708 So.2d 1327,
1342 (Miss.1998) (quoting same).
¶ 207. Attempt to commit a crime requires an
intent to commit the crime. Brooks v. State, 18 So.3d 833, 841
(Miss.2009) (citing Hughes v. State, 983 So.2d 270 (Miss.2008);
Miss.Code Ann. § 97–1–7 (Rev.2006)). Therefore, if “the
underlying crime begins where an indictable attempt is reached,”
the underlying crime cannot have begun until criminal intent is
formed. Goff, 14 So.3d at 650. In other words, “[t]he
felony-murder doctrine does not apply ․ when the determination to
steal property of the victim is not formed until after the
homicide.” Pickle, 345 So.2d at 626 (quoting 40 Am.Jur.2d
Homicide § 73, at 366–67).26
Here, obviously, a significant period of time passed between the
homicides and the theft of the vehicle.
¶ 208. This Court has addressed the issue of
intent in several cases involving capital murders based on
killings committed during the commission of robbery.
Consistently, this Court has held that a jury reasonably could
infer that intent to rob existed at the time of the murders only
when the killing and the taking of the property occurred
simultaneously, or when the acts occurred within mere moments of
each other. See, e.g., Lima, 7 So.3d at 909 (defendant took
property from the victim's pockets as he lay dying); Shaw v.
State, 915 So.2d 442, 449 (Miss.2005) (defendant robbed the victim
“immediately after” shooting him); Walker v. State, 913 So.2d
198, 212, 223 (Miss.2005) (defendant took the victim's car
immediately after the killing, and defendant confessed that his
intent was to rob the victim); Knox v. State, 805 So.2d 527,
530–32 (Miss.2002) (defendant was found carrying victim's keys the
same day she was murdered); Simmons, 805 So.2d at 470, 477–78
(Miss.2001) (immediately after shooting victim, defendant took
victim's companion's clothes and jewelry); Duplantis, 708 So.2d
at 1341 (defendant took the victim's property “immediately
following” the victim's death); West v. State, 463 So.2d 1048,
1050–51, 1055 (Miss.1985) (killing occurred while defendant and
his accomplice were robbing victim of his vehicle, although the
vehicle was not taken until victim was dead).
¶ 209. In the instant case, there was a clear
break between the killings and the taking of the truck. Hulett
and Heintzelman were killed on March 20, 2004, but Gillett and
Chamberlin remained in Hattiesburg for days afterward. While
Heintzelman's truck remained in her driveway, Gillett and
Chamberlin visited relatives, went shopping, played basketball,
installed a car stereo, and had several meals. There was no
evidence that Gillett or Chamberlin took possession of the truck
until they fled Hattiesburg on or shortly before March 26.
Unlike the cases cited above, the time between the killing and the
taking of the property was significant, and it cannot be said that
“the intervening time between the time of the murder and the time
of taking of the property formed a continuous chain of events.”
West, 463 So.2d at 1055 (Miss.1985). Therefore, the State
failed to prove capital murder, and Gillett's conviction should be
¶ 210. Even if the State had met its burden
of proof in the guilt phase of the trial, reversal of the death
sentence still would be required. The majority correctly finds
that the jury should not have been allowed to consider that
Gillett previously had committed a violent felony, but finds such
error harmless. I respectfully cannot agree, for in the face of
even a single invalid aggravating circumstance, this Court does
not have the authority to determine that the penalty of death is
¶ 211. Although the legislature has
“instructed” this Court to perform a reweighing or harmless-error
analysis upon finding an invalid aggravator, such a mandate is an
unconstitutional infringement on judicial prerogatives. See
Miss. Const. art. 1, §§ 1, 2 (providing for separation of
governmental powers); Miss. Const. art. 6, § 144 (“The judicial
power of the State shall be vested in a Supreme Court and such
other courts as are provided in this Constitution.”); Miss.
Const. art. 6, § 146 (“The Supreme Court shall have such
jurisdiction as properly belongs to a court of appeals․”).28
See also, e.g., Long v. McKinney, 897 So.2d 160, 183 (Miss.2004)
(“[T]his Court has been charged with the responsibility, and
granted the authority, over all things judicial within this
state.”); Newell v. State, 308 So.2d 71, 76 (Miss.1975) (“[The
Mississippi constitution] leaves no room for a division of
authority between the judiciary and the legislature as to the
power to promulgate rules necessary to accomplish the judiciary's
constitutional purpose.”). Only a unanimous jury may impose a
sentence of death, and it must do so in writing, specifying that
sufficient aggravating circumstances exist and that these are not
outweighed by any mitigating circumstances. Miss.Code Ann.
§ 99–19–101(3) (Rev.2007). Such power is properly left in the
hands of a jury before whom the case is tried, and not an
¶ 212. The constitutionality of Mississippi
Code Section 99–19–105(3)(d) notwithstanding, reversal is required
because the State failed to adduce sufficient proof of three of
the four aggravating circumstances considered by the jury.
First, as discussed above, there was no proof—only argument—that
the killings were committed during the commission of a robbery.
Miss.Code Ann. § 99–19–101(5)(d). Second, as the majority
recognizes, there was no proof that Gillett previously had
committed a violent felony. Miss.Code Ann. § 99–19–101(5)(b).
Third and finally, nothing in the record supports a finding that
Gillett and Chamberlin committed the murders “for the purpose of
avoiding or preventing a lawful arrest or effecting an escape from
custody.” Miss.Code Ann. § 99–19–101(5)(e).
¶ 213. At the sentencing hearing, the State
did not present any new evidence beyond what had been adduced
during the guilt phase. In opening and closing arguments, the
prosecutor made absolutely no assertion that Heintzelman and
Hulett were killed so that Gillett and Chamberlin might avoid
apprehension. The State argues on appeal that it was reasonable
to conclude that the victims were murdered “to avoid any
investigation into the robbery.” This would require a finding
that Gillett and Chamberlin first robbed the couple and then
killed them in order to eliminate witnesses to the robbery. But,
as discussed previously, there is zero evidence that Gillett and
Chamberlin took anything belonging to the victims before March 26,
nearly a week after their deaths.
¶ 214. The majority relies on Leatherwood v.
State, 435 So.2d 645, 651 (Miss.1983), for the proposition that
“it may be reasonably inferred that a substantial reason for
killing was to conceal the identity of the killer or killers or to
‘cover their tracks' so as to avoid apprehension and eventual
arrest by authorities.” However, in the Leatherwood case, there
was testimony that the defendant and his accomplices planned to
“leave no witnesses.” Id.
¶ 215. In the instant case, there was no
similar evidence. To the contrary, the only evidence of
Gillett's motive was that he was angry at Heintzelman and Hulett
due to their involvement in an automobile accident. Because the
State failed to adduce even a scintilla of evidence that Gillett
and Chamberlin had been killed to avoid arrest, it was error to
submit this aggravator to the jury. Taylor v. State, 672 So.2d
1246, 1275–76 (Miss.1996).
¶ 216. For purposes of capital murder, “in
the commission of” requires, at minimum, some temporal
relationship between one of the enumerated felonies and the
killing. Unlike any other case this Court has reviewed, the
State presented no evidence that Gillett or his codefendant had
formed an intent to take the property at issue at the time of the
killings. To the contrary, the uncontradicted evidence indicates
that Gillett and Chamberlin killed their victims days before
taking possession of the truck. Thus, the jury could only
speculate regarding the defendants' criminal intent at the time of
the killings, and speculation alone will not support a verdict.
¶ 217. As for the death sentence, it too
fails appellate review. In cases involving the death penalty,
heightened scrutiny requires reversal on even one invalid
aggravator, and any legislative mandate to the contrary is an
unconstitutional encroachment on judicial authority. Yet, in the
instant case, three of the four aggravating circumstances were
impermissibly presented to the jury. Therefore, even if there
were sufficient evidence to support a conviction for capital
murder, the sentence would have to be reversed.
¶ 218. For these reasons, I respectfully
¶ 219. The majority finds that the trial
court erred in allowing the jury to consider the “previous violent
felony” aggravator, but finds such error to be harmless. (Maj.
Op. at ¶ 108). I respectfully disagree. The majority fails to
consider the United States Supreme Court case of Brown v. Sanders 29
in which the Court ruled that “[i]f the presence of the invalid
sentencing factor allowed the sentencer to consider evidence that
would not otherwise have been before it, due process would mandate
reversal[.]” In this case, the majority correctly finds that the
jury considered an invalid aggravating factor. But this error
was not harmless because the evidence in support of the invalid
aggravating factor—the fact that Gillett had been convicted of
attempted aggravated escape from custody in Kansas—is evidence
that otherwise would not have been before the jury. I would
affirm Gillett's conviction of capital murder, but would reverse
Gillett's sentence of death and remand for a new sentencing
felt compelled to inform the police about the crimes Gillett had
committed because, according to her, while at the Gillett farm,
Gillett had threatened her with a gun, telling her he would shoot
her and her family if she told anyone what she had seen at the
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
of an employee at the Russell landfill confirmed that Gillett,
accompanied by a female, had made two deliveries to the landfill
on March 26, 2006. According to the employee, Gillett had
requested that she put his aunt's name on the landfill receipts.
of the two friends testified that the portion of the conversation
she had heard between Gillett and the other friend was that
Gillett needed help getting rid of the white pickup truck, because
two dead bodies were in the back.
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993).
jury's verdict listed the four aggravating circumstances as
follows: 1) “the capital offense was committed while the
defendant was engaged or was an accomplice in the commission of or
an attempt or flight after committing or attempt to commit a
robbery;” 2) “the capital offense was heinous, atrocious, or
cruel;” 3) “the capital offense was committed for the purpose of
avoiding or preventing a lawful arrest;” and 4) “the defendant was
previously convicted of a felony involving the use of or threat of
violence to the person.”
appeal brief states that neither the State nor the trial court
addressed the issue of whether the law of Mississippi or the law
of Kansas should apply. Gillett explains:As the State of
Mississippi offered no response to Mr. Gillett's memoranda of law
in support of suppression [which contained argument mandating
suppression under the law of Kansas, the law of Mississippi, and
federal law], the State necessarily took no position on the
choice-of-law question.As the trial court issued no findings of
fact nor conclusions of law concerning any aspect of suppression
[i.e., concerning Gillett's four suppression motions], the trial
court also remained silent on the choice-of-law question.The trial
court transcript does not contain discussion of this choice-of-law
ruling on Gillett's suppression motion, the trial court heard
testimony from the officers involved in the search of 606 North
Ash Street and Gillett's arrest, as well as those involved in
securing the search warrants, and later, the arrest warrant. The
trial court also possessed Gillett's memorandum on this issue,
which includes Kansas Statutes Section 22–2401.
Gillett drew the “X” where he did, Lyon said, “Go ahead and put it
in the square there,” and Gillett responded by saying something
that sounded like “It's a ‘Yes.’ ” It is difficult to decipher
from review of the videotape exactly what Gillett said at that
moment in the interview.
Kansas authorities had not in fact been keeping the Gillett farm
under surveillance. Lyon told Gillett that they had only so that
Lyon would not have to reveal to Gillett that Milam had served as
an informant. Lyon wanted to protect Milam.
of the videotape of the interview reveals that, at this point,
Lyon said “Well, I haven't done an affidavit for arrest warrant
yet․” (Emphasis added.)
of the State's arguments regarding this issue is that Gillett
never showed a legitimate expectation of privacy in the residence
at 606 North Ash Street, owned by his aunt, and therefore Gillett
failed to establish standing to challenge the warranted search of
606 North Ash Street. Given the discussion above regarding the
propriety of the search warrant and the search, this argument is
not relevant and need not be addressed.
primary case Gillett cites as support for the proposition that
Count II should not have proceeded to the jury, Thomas v. State,
278 So.2d 469, 472 (Miss.1973), does not in fact support that
proposition. Rather, Thomas merely states that specific intent
to steal is an essential element of the crime of robbery. Id.
further arguments Gillett makes regarding this claim are:Claim
5(A)Therefore, it was reversible error to overrule Mr. Gillett's
motion for a directed verdict on Count Two and jury instruction
D–72, the peremptory instruction on Count Two, and Mr. Gillett's
motion for judgment notwithstanding the verdict[.]Claim
5(B)Because Count Two should not have gone to Mr. Gillett's jury,
the verdict of guilty as charged on Count Two is legally
insufficient and cannot stand[.]Claim 5(C)Because Mr. Gillett's
conviction as charged under Count Two is legally insufficient, the
death sentence for this conviction must be vacated[.]Claim
6Entirely because Count Two was legally insufficient for reasons
stated in claim 5, the death sentence for the conviction under
Count One must also be vacated as it is premised on inadmissible
evidence of bad character[.]
discussion in Pickle contains a block quote from American
Jurisprudence, which includes the statement: “The felony-murder
doctrine does not apply, however, when the determination to steal
property of the victim is not formed until after the homicide.”
Pickle, 345 So.2d at 626 (quoting 40 Am.Jur.2d Homicide § 73 at
366–67 (1968)). The Pickle court, however, did not state it was
adopting what the American Jurisprudence quote stated. Id.
initially had requested purple-top tubes for testing, indicating
in a report that “purple-top tubes are needed,” because, at the
time that he authored the report, he did not know that Linda
Heintzelman and Vernon Hulett were dead and that purple-top tubes
thus could not be provided. At the Daubert hearing, Jones
clarified that, when he wrote “purple-top tubes are needed,” he
meant, they are needed, if available.Dr. Donald Pojman, the
pathologist who performed the autopsies of Linda Heintzelman and
Vernon Hulett and collected the blood samples from them, explained
why he put the blood samples in red-top tubes:Generally, when
we're doing DNA testing or other type [sic ] of blood banking
work, they want the tubes in a purple-top tube which has the
preservative EDTA in it.Well, after death that changes because all
the blood is going to be clotted anyway. So our red tops, our
purple tops, and our green tops are the exact same tubes․
Statutes Section 21–3810 was repealed and replaced by 2010 Kansas
Session Laws, chapter 136, section 136(b); however, the relevant
language of the repealed statute is primarily the same as the
language included in the session laws.
Court has held that, when determining whether a conviction under a
sister state's statute constitutes a “felony involving the use or
threat of violence to the person” under Mississippi Code Section
99–19–101(5)(b), it must be determined whether the conviction
under the sister state's statute would be considered a crime of
violence under Mississippi law. Holland, 587 So.2d at 874
(“[D]etermining whether a defendant's prior conviction was a
felony involving the use or threat of violence requires that this
state's statutes be construed and applied. Where as here the
conviction occurred in a sister state, this Court does not look to
how that state characterizes the question of whether the crime was
one of violence, rather, the analysis must be done under
Mississippi law”). This Court cannot without further
information—and need not, given the discussion above—analyze
whether Gillett's attempted escape would be considered a crime of
violence under Mississippi law.
two cases Gillett cites as authority for instruction DA–61—Jordan
v. State, 786 So.2d 987, 1025 (Miss.2001), and King v. State, 784
So.2d 884, 889 (Miss.2001)—do not suggest that Gillett is entitled
to this instruction.
instructions read as follows:DA–28:Unlike the consideration of an
aggravating circumstance, there is no unanimity requirement in
consideration of mitigating circumstances.Mitigating circumstances
differ from aggravating circumstances because you are not required
to be convinced beyond a reasonable doubt that a mitigating
circumstance exists before you must take that circumstance into
account as you deliberate this case. You may consider a
mitigating circumstance if you believe that there is any evidence
to support it no matter how weak you determine that evidence to
be. Each of you must decide for yourself what weight and what
consideration is to be given mitigating
circumstances.DA–29:Because each of you must consider what is
mitigating and what is not, it is impossible for me to list for
you every possible factor that you might consider mitigating.
For that reason you should not assume anything about the weight of
aggravating circumstances versus the weight of mitigating
circumstances based on the fact that the possible aggravating
circumstances are listed for you while all the possible mitigating
circumstances are not listed for you. Each of you must identify
in your own mind what mitigating circumstances you find to exist,
and each of you could have different mitigating circumstances in
mind.DA–40:As each of you is free to consider any other matter
which you may deem to be mitigating on behalf of Mr. Gillett in
reaching your sentencing decision, and as each of you maintains
the option to sentence Mr. Gillett to life imprisonment whatever
findings you may make, I instruct you as follows: you need not
unanimously determine that a death sentence is inappropriate in
this matter before you move on to consider a sentence less than
death. Each one of you is allowed to give due consideration to
whatever factors you believe call for a sentence less than
death.DA–44:The Court instructs the jury that each of you must
decide for yourself whether death or life imprisonment without
parole is the appropriate punishment for Mr. Gillett.
additional reasons for excluding Gillett's presumption-of-life
instructions, the State argues that DA–10 and DA–39 were flawed in
that they were mercy instructions and contained improper burdens
of proof, and that DA–37 (which was given) was flawed in that it
was a mercy instruction. Because of the analysis above, these
arguments need not be addressed. We emphasize that we are not
commenting on whether it was proper to give DA–37, as this
instruction was offered by Gillett and obviously not challenged by
seven alleged violations, as listed by Gillett, are as follows:1.
During second-phase summation, the State offered the jury its
personal opinion that death is the appropriate sentence in this
matter. See R. 1767 (“If he gets the death penalty, I've done my
job. Now, I don't ask for the death penalty every time because I
believe that the death penalty ought to be reserved for special
people and special situations. And, folks, if this isn't one of
them, I'll probably never see one. This is a special person over
there and this is a special circumstance.”). This argument is
improper as advocated in Item 2 of Mr. Gillett's notice. See CP.
838. This argument is also improper as it is analogous to a
prosecutor arguing he personally believes the defendant is guilty.
See Item 1 of Mr. Gillett's notice at CP. 837–38.2. During
second-phase summation, the State offered the jury its personal
opinion that “I can't imagine a worse way to go” (R. 1764) and “I
have never seen a case this bad in my life. Never.” (R. 1765).
This argument was made in direct opposition to the facts and
case authority cited in Item 3 of Mr. Gillett's pre-trial notice.
See CP. 838–40.3. During second-phase summation, the State offered
an improper “Golden Rule” argument contending that the jury should
consider the way the decedents were killed when considering the
import of mitigating evidence in the life-or-death decision. See
R. 1744–46. This argument was made in direct opposition to the
facts and case authority cited in Item 4 of Mr. Gillett's
pre-trial notice. See CP. 840–42.4. During first-phase summation,
the State improperly asked the jury to consider the families of
the decedents in their deliberations. See R. 1626 (“I ask you on
behalf of this family that's sitting in this courtroom to give
them justice and convict Roger Gillett ․). This argument was made
in direct opposition to the facts and case authority cited in Item
5 of Mr. Gillett's pre-trial notice. See R. 842–44.5. During
second-phase summation, the State advised the jury it was seeking
justice on behalf of the decedents. See R. 1759, 1766. This
argument was made in direct opposition to the facts and case
authority cited in Item 4 of Mr. Gillett's pre-trial notice. See
R. 840–42.6. During second-phase summation, the State advised the
jury that returning a death sentence “means you are doing your
duty under the laws of the State of Mississippi.” See 1746–47.
This argument was made in direct opposition to the facts and case
authority cited in Item Eight of Mr. Gillett's pre-trial notice.
See CP. 846–48.7. During first-phase summation, the State advised
the jury Vernon Hulett “was just a good human being. Vernon
Hulett was the type of person that was the backbone of this
country. He worked for a living. He worked for the city.
Yes, he drank a little beer. I'm guilty of that, too. But you
didn't see any drugs in his system. He's just a hard working
innocent person.” (R. 1573). These statements are entirely
extra-record. As such, these statements, as they were in the
trial of Mr. Gillett's co-defendant, are improper. More
specifically, this argument was made in direct opposition to the
facts and case authority cited in Item Twelve of Mr. Gillett's
pre-trial notice. See CP. 852–53.
suspect that Gillett misspoke in this sentence. Gillett likely
meant that there are instances where defense counsel may choose
not to object contemporaneously to a prosecutorial violation out
of fear that objecting would only focus more attention on the
notes that he offered to stipulate to the identity of the victims
and to their manner and cause of death. However, this Court has
held that “the mere fact that the defense is willing to stipulate
what the prosecution hopes to prove by admitting the photographs
into evidence does not bar their admissibility.” Simmons v.
State, 805 So.2d 452, 485 (Miss.2001).
Taylor Court explained:The State showed only conjecture, not
evidence, that a kidnapping had occurred. Likewise, there was no
evidence other than the prosecution's argument which would support
a finding that the murder was committed for the purpose of
avoiding or preventing the detection and lawful arrest of the
defendant. Finally, we are left solely with speculation that the
victim's death was especially heinous, atrocious and cruel.Taylor,
672 So.2d at 1276.
current version of American Jurisprudence does not contain the
language that “the felony-murder doctrine does not apply, however,
when the determination to steal property of the victim is not
formed until after the homicide.” 40 Am.Jur.2d Homicide § 39
(2008). Interestingly, however, the encyclopedia relies on this
Court's holding in Pickle for the proposition that “[g]enerally,
to sustain a conviction of murder in the first degree under a
felony-murder statute, it must be shown that there is a direct
causal relationship between the homicide and the commission of the
other felony.” Id. (citing Pickle, 345 So.2d 623).
join Justice Lamar's separate opinion in part, only to the extent
that she would reverse Gillett's death sentence.
1994, following this Court's announcement in Clemons v. State, 593
So.2d 1004 (Miss.1992), that it was without statutory authority to
reweigh aggravating and mitigating circumstances, Mississippi Code
Section 99–19–105 was amended 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.Miss.Code Ann. § 99–19–105(3)(d).
U.S. 212, 220–21, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006).
FOOTNOTE. Case was originally affirmed in this Court but on
remand from U.S. Supreme Court, case was remanded by this Court
for a new sentencing hearing.
GRAVES, Presiding Justice, for the Court:
WALLER, C.J., CARLSON, P.J., RANDOLPH AND
PIERCE, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND IN RESULT
WITH SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION; DICKINSON, J., JOINS PART II. LAMAR J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, J.; KITCHENS, J., JOINS IN PART.DICKINSON,
J., JOINS PART II OF THIS OPINION.DICKINSON, J., JOINS THIS
OPINION. KITCHENS, J., JOINS THIS OPINION IN PART.
Roger Lee Gillett