Mississippi has executed the 6th death row inmate of the year. M-P-B's Jeffrey Hess reports Gary Carl Simmons was executed by lethal injection at the state penitentiary in Parchman last night. Simmons was convicted of the 1996 murder of Jeffrey Wolfe as well as the kidnapping and rape Wolfe's female friend. Simmons worked as a butcher and allegedly used those skills, and knives from work, to dismember Wolfe and scatter his body parts in an alligator infested Jackson County bayou.

After the execution, Wolfe's step-mother Linda Wolfe says Simmons never apologized even with his last words. "Did he tell us, 'I am sorry. I wish I could take it back'? No, He didn't take nothing back. Like he said, 'Let's get it over with. Let's get done so these people can go home'. Well that is where we are going. We are going back to Houston, Texas and our hearts are proud. And we are proud of y'all. And thank y'all for every prayer, every thought and everything you have done the last 16 years," Wolfe said.

Wolfe's father Paskiel Wolfe reacted emotionally to the execution. "Do you think God is going to forgive you for doing such a good deed? No. You are going to go to Hell. And that is where you are gonna be. And I hope you burn in Hell. When you take your last breath I will be leaving to go and have a cold beer," Wolfe said.

Two dozen protestors sing and light candles in honor of Wolfe and Simmons in protest to the execution. Carrying a sign reading, killing won't solve killing, James Bowley says he will continue to oppose the death penalty despite the state putting more people to death this year than at any time in the last 60 years. "It is obviously not going to stop any this year but it might make a person or two or three or ten who drive by think about it. And that is what education is all about is getting people to stop and think. Obviously it won't stop and it won't step the next ones but maybe next or in two years or in ten years," Bowley said. There is the potential for additional executions later this year, if the Supreme Court rejects any more appeals before its session which finishes at the end of the month.

Huffington Post

TUPELO, Miss., June 20 (Reuters) - Mississippi is set on Wednesday to execute a grocery store butcher found guilty of dismembering his drug dealer with knives taken from work and then scattering the body parts in an alligator-infested bayou in 1996. The execution of Gary Carl Simmons Jr., 49, by lethal injection was scheduled for 6 p.m. local time (2300 GMT) at the Mississippi State Penitentiary in Parchman. It is scheduled to be the third execution carried out in the state this month. There have been 21 executions in the United States this year, according to the Death Penalty Information Center.

Simmons was convicted of the August 1996 murder of Jeffery Wolfe, 21. According to records from the Mississippi Supreme Court, Wolfe and his girlfriend had driven from Houston to Mississippi to collect a drug debt of between $12,000 to $20,000. But when they got to Simmons' house, Simmons and his accomplice, Timothy Milano, told Wolfe they did not have the drugs or the money, records showed. An argument erupted, and Milano fatally shot Wolfe with a .22-caliber rifle, records showed. Simmons then hog-tied and locked Wolfe's girlfriend in a foot locker, removing her later to rape her and "telling her that her life depended on how well she performed sexually," the court document said.

Afterward, Simmons put the woman back inside the box and went into the bathroom, where he dismembered and gutted Wolfe's body in the bathtub using knives he had sharpened at work, the records showed. Simmons and Milano scattered the victim's remains in a bayou behind Simmons' property, according to documents. Wolfe's girlfriend managed to escape from the foot locker and ran to a neighbor's house to call police, records showed.

Simmons was sentenced to death after being convicted in August 1997 of kidnapping, rape and capital murder. Milano was sentenced to life in prison for his role in the crime. (Editing By Colleen Jenkins and Will Dunham)

Biloxi Sun Herald

Mississippi has executed six death row inmates so far this year, the most executions in the state since the 1950s when the death penalty was imposed for a larger variety of crimes, including armed robberies and rapes. And it's likely more executions are on the way. Fifty inmates are on death row. Gary Carl Simmons Jr., 49, was the most recent inmate executed. He had spent more than 15 years on death row before his June 20 execution for the 1996 shooting death and dismemberment of a Texas drug dealer. He never apologized for his crime.

"The main impetus for all these executions of inmates on death row is that their appeals are running out, especially the ones convicted in the 1980s and 1990s," said Phillip Broadhead, clinical professor of law at the University of Mississippi. Broadhead said the Anti-Terrorism and Effective Death Penalty Act of 1996 shortened the time for post-conviction appeals. President Bill Clinton signed the act into law in the aftermath of the Oklahoma City bombings to impose a statute of limitations on federal appeals. The act, Broadhead said, requires people to file all of their complaints at once. "So … absent any extreme circumstances, you are going to see an acceleration of executions in the next few years," he said. Attorney General Jim Hood said appeals take an average of 12 to 15 years from the date of the crime to execution. Each case varies, Hood said, and some cases "get remanded for a new sentencing hearing and this actually starts the process anew. There is no way to predict how long a case will take …"

Richard Gerald Jordan has been appealing since his 1977 conviction. His case is before the 5th Circuit Court of Appeals and his appeals could soon run out. Jordan was sentenced to death in 1977 in Harrison County for the Jan. 13, 1976, kidnapping and shooting death of Edwina Marter. Authorities said Jordan took Marter to a wooded area and shot her. Her husband paid a $25,000 ransom for her safe return, but she was already dead. The state and, ultimately, taxpayers spend $102.27 per day to house a death row inmate, as opposed to $41.61 a day for other inmates. The state spent an estimated $569,132 to house Simmons for 15.3 years, compared with the more than $1 million so far to house Jordan. That cost does not include hundreds of thousands of dollars spent on appeals litigation, which experts said can run into millions.

Mississippi has used lethal injections for executions since July 2002, when Tracy A. Hansen was put to death for the shooting death of a state trooper. Sixteen others, including Simmons, have died by lethal injection.

Death row

Mississippi has 50 death row inmates, two of them women serving their time at the Central Mississippi Correctional Facility at Pearl. Of those 50, 11 are from the six South Mississippi counties. Death row inmates spend 23 hours a day in their 80-square-foot cells, though Don Cabana, a former warden at the state penitentiary at Parchman, said they are sometimes granted minor privileges. "Certainly the warden, based on behavior, can let a couple of guys play basketball or sit out and play checkers," Cabana said. "There are advantages to being able to do that. It certainly helps to keep things calm. Generally, though, you have far fewer discipline problems on death row than in any other part of the prison. All they want is to concentrate on their appeals."

The death row cells sit side by side, facing cinder-block walls. For one hour a day, the inmates have the option to shower or exercise under guard. "They can communicate with each other," Cabana said. "They hang out of the bars and shout at each other. They will hold a mirror out where they can see what's going on down the block. They chit-chat with the counselors and officers and stuff. It's a very monotonous existence." Unlike inmates housed in the general population, death row inmates are not eligible for education or vocational studies, though they do have access to library books and the law library. They can have televisions and radios, but no Internet access, said officials at the state Department of Corrections. "Death rows by their very nature are particularly toxic," said Dr. Stuart Grassian, a Harvard psychiatrist who has long studied death row inmates in solitary confinement. "It's an agonizing thing to go through. They know when somebody is leaving to go to the death cell they aren't coming back. The very conditions they live in (over the years) is often too much."

Some death row inmates, Grassian said, drop their appeals because they do not want their executions delayed. The public is usually told the inmate wants to spare his victim's family, he said, but the inmate is really no longer able to bear death row. Grassian has found some inmates suffer psychiatric symptoms, and others adjust to the surroundings. One inmate, whom Grassian quoted in a journal article, said: "You get sensitive to noise, the plumbing system. Someone in the tier above me pushed the button on the faucet … it's too loud, gets on your nerves. I can't stand it. I start to holler." Others experience auditory hallucinations. One inmate said he heard what sounded like an inmate beating. Some suffer panic attacks, he said, and others admit fantasies of revenge, torture and mutilation of their prison guards. Grassian noted one prisoner's comments: "I try to sleep 16 hours a day, block out my thoughts; muscles tense, think of torturing and killing the guards; lasts a couple of hours. I can't stop it. Bothers me. Have to keep control. This makes me think I'm flipping my mind … I get panicky, thoughts come back." Grassian said the inmate, housed at a Massachusetts prison, pictured throwing a guard in caustic lime so he could see it "eat away his skin, his flesh." The inmate said he tried unsuccessfully to block those images.

In Mississippi, Willie C. Russell is facing execution for the July 18, 1989, stabbing death of a guard at Parchman. Other death row inmates, Grassian said, experience extreme paranoia and some spend the majority of their time "spaced out." Cabana defends the conditions, saying the type of confinement death row prisoners experience is necessary to ensure the safety of the prison staff and the public in the event of an escape. "You are dealing with the world's biggest and best sociopaths," Cabana said. "They are a different breed of people. You are talking about people who can go in and slaughter a family. "These are pretty strong guys mentally. We always offer a sedative before an execution. None of the three or four I dealt with wanted it. "And I never had one fight me when it was his time to go. If it was me, you would either have to knock me out or take me in kicking and screaming. But to them, you say 'Son, it's time to go.' They will say 'Yes sir' and they will walk the mile and do what they got to do. "I just don't feel bad for the guys on death row. You have to have committed a really heinous crime to go to death row. That's what makes these guys and some of the women different from the rest of us. "We can debate all we want as to whether it (their treatment) is inhumane, But the U.S. Supreme Court has said, on any number of occasions, it is not cruel and unusual punishment. They were sentenced to death. By God, they earned their way into that set of circumstances." Simmons, convicted in 1997 in Jackson County, had been a grocery store butcher before his life began anew on Parchman's death row, labeled Unit 29. State Department of Corrections Commissioner Christopher Epps said Simmons was a problem prisoner, having been written up for 60 serious violations. The offenses included refusing to follow a guard's orders, threatening to kill guards, throwing a "very hot greasy soapy liquid substance" on guards, possession of contraband and threatening to "scald" a guard.

Unintended punishment

"The amount of time on death row was the unintended part of the punishment," said Richard Dieter, executive director of the Death Penalty Information Center in Washington. "In the early days, the person was executed within a year of the sentence. The modern-day death penalties have gotten much longer and continue to get progressively longer during the appeals process. "From all the reports that we've looked at … there is real concern about the time and conditions for these inmates. If there is any problem of mental illness, it becomes exacerbated after being on death row. It's a concern in itself, as far as humane treatment and cruel and unusual punishment. What these inmates get is essentially (both) life and death sentences from a legal perspective." Cabana, who has worked in corrections for 42 years, countered, saying: "These people need to think about the victims for a while. I'm not suggesting we should run Nazi-style death camps. We aren't. There are always those who are going to whine and cry about the conditions on death row, but in my opinion, it is absolutely needed. It's not nice, but it's not supposed to be nice. The execution is the punishment and the confinement is based on legitimate security needs."

Death row inmates speak

In 2002, the Sun Herald asked death row inmates to send letters explaining what it was like during the July 17, 2002, execution of Tracy Hansen. Hansen shot state Trooper Bruce Ladner to death in April 1987 in Harrison County. Hansen was the first inmate executed in the state in 13 years, and the first by lethal injection. Prior to that, the state used a gas chamber and before that, an electric chair. "On the day of the execution, some chaplains came around and shared with the guys who wanted to talk," inmate Alan Dale Walker wrote. "I spoke with one but really it does no good to talk to them. "They're strangers, and just because they are chaplains and they're listening to you doesn't help me at all. When I am hurting and sad, it does me no good to talk to a stranger. I have to deal with my pain and sadness in my own way." Walker said Hansen's death was particularly hard because the two had become friends. Prison guards allowed Hansen and Walker a face-to-face visit two days before the execution. "I am not going to tell you what we spoke about," Walker wrote, "but I will say I had time to say goodbye face to face and I loved it. Being able to say goodbye … was the nicest act of kindness anyone has ever shown me since I have been here."

Another death row inmate, Thomas Loden, wrote: "To fully understand this, one must comprehend that there are but 65 of us, a rather small group. Sure, we come from many different backgrounds, races, even religions, but we all have a common interest; therefore the passing of one, we all feel. … Tracy was an alarm to most here, the clock ticks on for all …" Another condemned killer, Howard Neal, said he remembered the nights leading up to Hansen's execution. He heard Hansen crying in his cell. The day of the execution, Neal didn't want to talk to anyone. "I was thinking that could be me they killed that day," he wrote. Walker said he was surprised by how the execution affected some guards. "Some of the nicer guards hated to see it and were sad that it took place," he wrote. "Some didn't know what to think and others didn't … get close enough to the inmates to really care one way or the other. Some of the guards wanted no part of it. I spoke to one or two who wanted to get away from this place. They didn't want to be this close to death."

Loden wrote most people forget death row inmates are still human beings. "Yes, we all have justly been sentenced," he wrote, "but would it surprise anyone that we still feel, that we still are human? As far as being aware of who is next, we all are, but this is something that's not really openly discussed. We do try to show respect to one another. "But overall … the hardest part of the row isn't the end, it's the dying a little each day … knowing you're but one day closer to death."

Law officers and relatives of murder victims have little sympathy for the inmates facing execution. "There are those few that even life behind bars is not enough because they would be a danger to staff and other inmates in the prison," Cabana said. "After many years, I finally reached the conclusion that however sad it may be there are those among us who are simply so dangerous, so bad, that … there has to be an ultimate final penalty for them. There is nothing to do with them except execution." As Simmons took his last breath, his victim's father, Paskiel Wolfe Sr., watched along with wife Linda Wolfe. He said the execution was "16 years overdue." Upon their return to Texas, Wolfe headed straight to his son's grave to tell him justice had finally been served.

Mississippi Department of Corrections (Offender Data Sheet)

Mississippi Department of Corrections (Media Kit)

Factual Background of the Case

On October 11, 1996, Gary Carl Simmons, Jr. (Simmons), and Timothy John "Timmy" Milano (Milano) were indicted for the capital murder of Jeffery Wolfe, while engaged in the commission of a robbery. Simmons and Milano were also indicted for the kidnaping and rape of Charlene Brooke Leaser. Simmons was arraigned in the Circuit Court of Jackson County on January 9, 1997, and pled not guilty to the pending charges. Milano's trial was severed from Simmons. On February 21, 1997, the trial judge granted a change of venue motion to allow jury selection from the venire in Lauderdale County, but then held that the remainder of the trial would be conducted in Jackson County, sequestering the jury for the duration of the trial.

The trial began on August 25, 1997, and four days later, the jury returned a guilty verdict on all three counts of the indictment. For the kidnaping and rape, Simmons was sentenced to separate life sentences. A separate sentencing hearing was held on the capital murder conviction and the jury found unanimously that Simmons should suffer death. Immediately thereafter, the trial judge sen-tenced Simmons to die by lethal injection on the capital murder charge and to two consecutive life sentences for the kidnaping and rape convictions.

Facts of the Case:

On August 11, 1996, Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County, Mississippi to "pick up some money" from some friends that were in his debt. Upon their arrival on the Mississippi Gulf Coast, they checked into a hotel. Wolfe then left to meet Sonny Milano, Timothy Milano's brother. Later that evening, Wolfe, Sonny, Sonny’s girl-friend and Leaser went to dinner.

During dinner, Wolfe asked if Sonny planned to go to Simmons' house that evening. Sonny Milano decided to go to Simmons' house, arriving there after dropping his girlfriend off. When he arrived, Simmons and Timothy Milano were the only two at the house. Simmons asked Sonny to get in touch with Wolfe. Wolfe told Sonny that he would be there in a minute.

Sonny conveyed this information to Simmons and Simmons told Sonny to leave the house. Wolfe and Leaser later arrived at the house. Simmons walked into the kitchen to get a beer while Leaser sat down at a table in the living room. Leaser heard Wolfe and Milano chatting. Wolfe mentioned money he was owed. Apparently, Simmons and Milano owed Wolfe between twelve and twenty thousand dollars.

Leaser testified that she then heard gunshots and saw Wolfe fall to the ground. Simmons grabbed Leaser and ordered her not to look in the direction of Wolfe's body. Leaser noticed Milano standing directly behind Wolfe holding a .22 caliber rifle.

Simmons took Leaser to a back bedroom and forced her to lie face down on the floor. He placed himself on top of her and began questioning her, asking whether she or Wolfe were law enforcement officers, whether Wolfe had any drugs with him, and who knew they were in Mississippi. She became understandably hysterical and simply responded that she did not know anything, as she and Wolfe had only become acquainted a few weeks ago. After Simmons finished questioning Leaser, he tied her hands behind her back, bound them to her feet with some rope, and locked her in a metal box with dimensions similar to a large footlocker near his bedroom, telling her he was "on a time frame" that he could not "mess up."

Leaser managed to untie her hands and feet and began kicking the top of the box unsuccessfully trying to get out. After some length of time had passed, Simmons returned to the box and took Leaser out. Simmons was undressed. He forced her to lie face down on the floor of the bedroom. He then raped her. Leaser testified that she thought he was holding a pistol to the back of her head during the assault.

Afterward, Simmons tied her up and locked her in the box. While Leaser was secured in the box, Simmons and Milano went about their plan to dispose of Wolfe's body. Simmons began dismembering Wolfe in the bathtub. Simmons, with Milano's help, began distributing Wolfe's remains into the bayou that ran behind Simmons's property using a boat Simmons borrowed from neighbor only hours before.

Leaser, asleep and still locked in the box, awoke to the sound of the telephone ringing. When no one answered it, Leaser reasoned that the house was empty. She mustered all of her energy and began banging on the top of the box. The lid popped off and Leaser managed to get out of the house. She grabbed her clothes and ran to a neighbor's house to call the police.

Simmons’ trial began on August 25, 1997, and four days later, the jury returned a guilty verdict on all three counts of the indictment. For the kidnaping and rape, Simmons was sentenced to separate life sentences. A separate sentencing hearing was held on the capital murder conviction and the jury found unanimously that Simmons should suffer death.

Execution by Lethal Injection

In 1998, the Mississippi Legislature amended Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51. The manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical para-lytic agent until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice.

Contents of Syringes for Lethal Injection

Anesthetic - Pentobarbital – 2.0 Gm.
Normal Saline – 10-15 cc.
Pavulon – 50 mgm per 50 cc.
Potassium chloride – 50 milequiv. per 50 cc.

Lethal injection is the world’s newest method of execution. While the concept of lethal injection was first pro-posed in 1888, it was not until 1977 that Oklahoma became the first state to adopt lethal-injection legislation. Five years later in 1982, Texas performed the first execution by lethal injection. Lethal injection has quickly be-come the most common method of execution in the United States. Thirty-five of thirty-six states that have a death penalty use lethal injection as the primary form of execution. The U.S. federal government and U.S. mili-tary also use lethal injection. According to data from the U.S. Department of Justice, 41 of 42 people executed in the United States in 2007 died by lethal injection.

While lethal injection initially gained popularity as a more humane form of execution, in recent years there has been increasing opposition to lethal injection with opponents arguing that instead of being humane it results in an extremely painful death for the inmate. In September 2007 the United States Supreme Court agreed to hear the case of Baze v. Rees to determine whether or not Kentucky’s three drug-protocol for lethal injections amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United State Constitution. As a result of the Supreme Court’s decision to hear this case, executions in the United States came to a brief halt in late September 2007. On April 16, 2008, the Supreme Court ruled in Baze holding that Kentucky’s three-drug protocol for administering lethal injections does not violate the Eighth Amendment. The result of this ruling was to lift the de facto moratorium on executions in the United States. The State of Georgia became the first state to carry out an execution since the Court’s Baze decision when William Earl Lynd was executed by lethal injection on May 6, 2008.

Chronological Sequence of Events of Execution

48 Hours Prior to Execution The condemned inmate shall be transferred to a holding cell.
24 Hours Prior to Execution Institution is placed in emergency/lockdown status.
1200 Hours Day of Execution Designated media center at institution opens.
1500 Hours Day of Execution Inmate’s attorney of record and chaplain allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed to shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to execution room.
1800 Witnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted with media witnesses.
2030 Hours Day of Execution Designated media center at institution is closed.

Since Mississippi joined the Union in 1817, several forms of execution have been used. Hanging was the first form of execution used in Mississippi. The state continued to execute prisoners sentenced to die by hanging until October 11, 1940, when Hilton Fortenberry, convicted of capital murder in Jefferson Davis County, became the first prisoner to be executed in the electric chair. Between 1940 and February 5, 1952, the old oak electric chair was moved from county to county to conduct execu-tions. During the 12-year span, 75 prisoners were executed for offenses punishable by death. In 1954, the gas chamber was installed at the Mississippi State Penitentiary, in Parchman, Miss. It replaced the electric chair, which today is on display at the Mississippi Law Enforcement Training Academy. Gearald A. Gallego became the first prisoner to be executed by lethal gas on March 3, 1955. During the course of the next 34 years, 35 death row inmates were executed in the gas cham-ber. Leo Edwards became the last person to be executed in the gas chamber at the Mississippi State Penitentiary on June 21, 1989.

On July 1, 1984, the Mississippi Legislature partially amended lethal gas as the state’s form of execu-tion in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who com-mitted capital punishment crimes after the effective date of the new law and who were subsequently sentenced to death thereafter would be executed by lethal injection. On March 18, 1998, the Mississippi Legislature amended the manner of execution by removing the provision lethal gas as a form of execution.

Mississippi Death Row Demographics
Youngest on Death Row: Terry Pitchford, MDOC #117778, age 26
Oldest on Death Row: Richard Jordan, MDOC #30990, age 66
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 (March 2, 1977: 35 Years)

Total Inmates on Death Row = 51
MALE:49
FEMALE: 2
WHITE:21
BLACK: 29
ASIAN: 1

Mississippi State Penitentiary

The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County. In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parch-man Plantation. The Superintendent of the Mississippi State Penitentiary and Deputy Commissioner of Institutions is E.L. Sparkman. There are approximately 868 employees at MSP. MSP is divided into two areas:

AREA WARDEN UNITS Area I - Warden Earnest Lee Unit 29 Area II - Warden Timothy Morris Units 25, 26, 28, 30, 31, and 42 The total bed capacity at MSP is currently 4,648. The smallest unit, Unit 42, houses 56 inmates and is the institution’s hospital. The largest unit, Unit 29, houses 1,561 minimum, medium, close-custody and Death Row inmates. MSP houses male offenders classified to all custody levels and Long Term Segregation and death row.

All male offenders sentenced to death are housed at MSP. All female offenders sentenced to death are housed at the Central Mississippi Correctional Facility in Pearl, Miss. The majority of the farming activity involving Agricultural Enterprises takes place at MSP. Programs offered at MSP include alcohol and drug treatment, adult basic education, inmate legal assistance, pre-release, therapeutic recreation, religious/faith programs and vocational skills training. Mississippi Prison Industries operates a work program at the MSP and utilizes more than 296,400 inmate man-hours in its textile, metal fabrication and wood working shops. On a monthly average, 190 inmates work in these shops.

INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER
Name Race-Sex Offense Date Executed

Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89

PRISONERS EXECUTED BY LETHAL INJECTION
Name Race-Sex Offense Date Executed

Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
John B. Nixon, Sr. White Male Murder 12-14-05
Bobby G. Wilcher White Male Murder 10-18-06
Earl W. Berry White Male Murder 05-21-08
Dale L. Bishop White Male Murder 07-23-08
Paul E. Woodward White Male Murder 05-19-10
Gerald J. Holland White Male Murder 05-20-10
Joseph D. Burns White Male Murder 05-20-10
Benny Joe Stevens White Male Murder 05-10-11
Rodney Gray Black Male Murder 05-17-11
Edwin Hart Turner White Male 02/08/2012
Larry M. Puckett White Male 02/20/12
William J. Mitchell Black Male 03/22/12
Henry Curtis Jackson Black Male 06/05/12
Jan Michael Brawner White Male 07/12/12

Source: Mississippi Department of Corrections, Mississippi State Penitentiary

WordPress.Com

PARCHMAN, Miss. — Paskiel Lee Wolfe stared right at the man convicted of dismembering his son when the inmate was executed Wednesday evening June 20, 2012, and later called him a piece of trash who will “burn in hell” while Wolfe drinks a cold beer. Gary Carl Simmons Jr., 49, was pronounced dead at 6:16 p.m. CDT after an injection at the Mississippi State Penitentiary at Parchman. The former grocery store butcher was condemned for the August 1996 shooting death and dismemberment of Jeffery Wolfe, whose body parts were found in a south Mississippi bayou.

Wolfe’s father and stepmother held hands as they watched the execution from a witness room. Wearing a John Deere cap and camo shirt, Paskiel Wolfe watched intently as Simmons made his final statement. “I’ve been blessed to be loved by some good people, by some amazing people. I thank them for their support. Now, let’s get it on so these people can go home. That’s it,” Simmons said as he lay strapped on a gurney in the execution chamber moments before the procedure was carried out. At a brief news conference afterward, Paskiel Wolfe called Simmons a “piece of trash” and refused to even say his name. He said Simmons killed his son and stole money from his son and girlfriend and gave it to his wife. “You are going to burn in hell. When you take your last breath, I’ll be going to have a cold beer,” Paskiel Wolfe said.

Simmons sister witnessed the execution from another room, but made no statement afterward. Simmons was the sixth Mississippi inmate executed this year. That’s the most number of inmates executed in Mississippi in a single year since eight were executed in 1956.

Simmons and his former brother-in-law, Timothy Milano, were both convicted of killing Wolfe, who drove to Mississippi from Houston with the woman to collect a drug debt estimated to be anywhere from $12,000 to $20,000, according to court records. Simmons was sentenced to death in 1997 for Wolfe’s slaying and to two life terms on charges of kidnapping and raping the woman. Milano was sentenced to life for capital murder and 30 years for kidnapping. A rape charge against Milano was dismissed. Authorities said Milano shot Wolfe, but Simmons planned the killing, dismembered Wolfe and raped the woman. The Associated Press does not generally identify the victims of sex crimes.

Court records describe a grisly scene in which Simmons used his knives from the grocery store butcher shop and a bolt cutter to dismember Wolfe in the bathtub. This is how those documents described the killing and the events that led up to it: Wolfe had been providing marijuana to Simmons on consignment. Milano would sell it, and Wolfe would pick up the money. Wolfe and his friend went to Simmons’ house on Aug. 12, 1996, to collect the debt and planned to vacation in New Orleans before returning to Texas. But Simmons and Milano didn’t have the cash.

Milano shot Wolfe with a .22 caliber rifle inside Simmons’ home in Jackson County. Simmons tied up Wolfe’s friend and put her in a metal box described as similar to a footlocker. At some point, he raped her, then locked her up again and cut up Wolfe’s body, the records show. Simmons and Milano carried the pieces out in buckets and dumped them in the bayou behind the house. Simmons subsequently drove to Mobile, Ala., where he made a videotape for his ex-wife and children. He didn’t say he killed anyone, but made statements such as, “I can’t make it undone. I would have. Oh God, I would have,” according to court records. The next morning, the woman forced open the box and ran to a neighbor’s house. Police found bloody buckets at Simmons’ house and body parts in the bayou. Simmons hoped to keep the woman as a “sex toy,” according to court testimony.

In the hours before the execution, the U.S. Supreme Court, the Mississippi Supreme Court and the state’s governor declined efforts to block the execution.

The Mississippi Link

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Simmons v. State, 805 So.2d 452 (Miss. 2001). (Direct Appeal)

Defendant was convicted in the Circuit Court, Jackson County, Bill Jones, J., of capital murder, rape, and kidnapping, and was sentenced to death and two consecutive terms of life imprisonment. Defendant appealed. The Supreme Court, Smith, P.J., held that: (1) it would address merits of claims raised on appeal which were not raised before trial court and were thus subject to procedural bar, with any subsequent review to stand on procedural bar alone; (2) self-defense and manslaughter instructions were not warranted; (3) evidence was sufficient to support all convictions; (4) defendant received effective assistance of counsel; (5) warrantless searches of defendant's home and its curtilage were justified by exigent circumstances; (6) videotape made by defendant shortly after his decapitation and dismemberment of victim's body was inadmissible as mitigation evidence; (7) claims of prosecutorial misconduct were all procedurally barred, without merit, or both; (8) evidence that defendant placed victim's body parts in bayou behind his house was sufficient to warrant instruction on aggravating circumstance of “knowing creation of great risk to many persons”; (9) “committed for pecuniary gain during commission of a robbery” aggravator did not improperly permit jury to consider both commission of underlying felony and motive behind the underlying felony as separate aggravators; (10) process by which peremptory challenges were exercised and state's panel presented to defendant did not violate statutory requirements; and (11) death penalty was not disproportionate. Affirmed.

McRae, P.J., concurred in part. Diaz, J., concurred in part and dissented in part with separate written opinion in which McRae, P.J., and Graves, J., joined.

En Banc. SMITH, P.J., For The Court.

¶ 1. On October 11, 1996, Gary Carl Simmons, Jr. (Simmons), and Timothy John “Timmy” Milano (Milano) were indicted for the capital murder of Jeffery Wolfe, while engaged in the commission of a robbery. Simmons and Milano were also indicted for the kidnaping and rape of Charlene Brooke Leaser. Simmons was arraigned in the Circuit Court of Jackson County on January 9, 1997, and pled not guilty to the pending charges. One month later, the trial judge appointed two attorneys, W. Harvey Barton and R. Michael Cunningham, to represent Simmons, an indigent. Milano's trial was severed from Simmons. On February 21, 1997, the trial judge granted a change of venue motion to allow jury selection from the venire in Lauderdale County, but then held that the remainder of the trial would be conducted in Jackson County, sequestering the jury for the duration of the trial.

¶ 2. The trial began on August 25, 1997, and four days later, the jury returned a guilty verdict on all three counts of the indictment. For the kidnaping and rape, Simmons was sentenced to separate life sentences. A separate sentencing hearing was held on the capital murder conviction and the jury found unanimously that Simmons should suffer death. Immediately thereafter, the trial judge sentenced Simmons to die by lethal injection on the capital murder charge and to two consecutive life sentences for the kidnaping and rape convictions.

¶ 3. Simmons's motion for a new trial and amended motion for a new trial were both denied by Judge Jones. Simmons' automatic direct appeal is now before this Court raising twenty-seven alleged errors at trial for consideration by this Court.

¶ 4. Finding no error, we affirm the trial court, upholding Simmons's guilty verdict and sentence of death as well as the two consecutive sentences of life imprisonment.

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S SELF–DEFENSE INSTRUCTION.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MANSLAUGHTER INSTRUCTION.
III. THE TRIAL COURT'S RULINGS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE.
IV. THE TRIAL COURT ERRED BY GRANTING TWO OF THE PROSECUTION'S INSTRUCTIONS DURING THE GUILT–INNOCENCE PHASE OVER THE DEFENDANT'S OBJECTIONS.
V. THE TRIAL COURT ERRED BY DENYING THE MOTION FOR DIRECTED VERDICT AS THE JURY'S FINDING THAT A ROBBERY WAS COMMITTED WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OVERRULING THE DEFENDANT'S MOTION FOR A MISTRIAL CONCERNING CERTAIN TESTIMONY OFFERED BY DENNIS GUESS.
VII. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
VIII. THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTION TO ADDUCE EVIDENCE CONCERNING AN ALLEGED BURGLARY OF THE VICTIM'S ROOM AT THE KING'S INN HOTEL.
IX. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OBTAINED AS A PART OF AN ILLEGAL SEARCH AND SEIZURE.
X. THE TRIAL COURT ERRED BY ALLOWING THE EXPERT WITNESS TESTIMONY OF DEBORAH HALLER INTO EVIDENCE OVER OBJECTION FROM DEFENSE COUNSEL.
XI. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR A CONTINUANCE.
XII. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION IN LIMINE TO EXCLUDE CERTAIN PHOTOGRAPHS FROM ADMISSION INTO EVIDENCE.
XIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN RULING ON VARIOUS MATTERS IN THE GUILT PHASE OF THE TRIAL.
XIV. THE TRIAL COURT ERRED IN EXCLUDING A VIDEOTAPE OF THE DEFENDANT MADE HOURS AFTER THE COMMISSION OF THE CRIMES IN WHICH THE DEFENDANT DISCUSSES THE CRIMES AND EXHIBITS REMORSE FOR HIS PART IN COMMITTING THEM.
XV. THE PROSECUTOR ENGAGED IN MISCONDUCT REQUIRING REVERSAL.
XVI. THE TRIAL COURT ERRED BY SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.
XVII. THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS IN ITS RULINGS DURING THE SENTENCING PHASE OF THE TRIAL.
XVIII. THE TRIAL COURT ERRED BY GRANTING MANY OF THE PROSECUTION'S INSTRUCTIONS DURING THE SENTENCING PHASE OF THE TRIAL.
XIX. THE TRIAL COURT ERRED BY REQUIRING THE DEFENSE TO EXERCISE SOME OF ITS PEREMPTORY CHALLENGES PRIOR TO THE PROSECUTION TENDERING TWELVE ACCEPTED JURORS.
XX. THE TRIAL COURT ERRED IN THE PROCEDURE IT USED IN SELECTING THE COUNTY FOR THE CHANGE OF VENUE.
XXI. THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS DURING THE “DEATH/LIFE” QUALIFICATION COMPONENT OF VOIR DIRE.
XXII. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTION TO OBTAIN A PROMISE FROM PROSPECTIVE JURORS TO RETURN A SPECIFIC VERDICT UNDER A SPECIFIC SET OF CIRCUMSTANCES.
XXIII. THE TRIAL COURT ERRED BY LIMITING THE VENIRE IN LAUDERDALE COUNTY.
XXIV. THE TRIAL COURT ERRED BY ALLOWING THE SELECTED JURORS TO RETURN HOME AND PACK CLOTHING FOR THE WEEK BEFORE BEING SEQUESTERED.
XXV. THE DEFENDANT HAS BEEN DENIED HIS RIGHT TO A MEANINGFUL APPEAL.
XXVI. MISSISSIPPI'S CAPITAL PUNISHMENT SCHEME IS UNCONSTITUTIONAL AND THE IMPOSITION OF THE DEATH PENALTY IN THIS CASE IS DISPROPORTIONATE.
XXVII. THE ERRORS TAKEN TOGETHER IN THIS CASE WARRANT REVERSAL.

¶ 5. Before proceeding to the facts, the State asserts that Simmons's assignments of error numbered IV, VIII, XVI, XVIII, XIX, XX, XXII, XXIII, XXIV, and XXV should be procedurally barred from consideration by this Court. The State argues that the issues were not presented to the trial court and are therefore not properly before this Court. The State alleges that the error, if any, is waived due to the procedural bar. It has been repeatedly held that the procedural bar rule is not diminished in a capital case. Cole v. State, 525 So.2d 365, 369 (Miss.1987); Irving v. State, 498 So.2d 305 (Miss.1986); Johnson v. State, 477 So.2d 196 (Miss.1985); In re Hill, 460 So.2d 792 (Miss.1984); Hill v. State, 432 So.2d 427 (Miss.1983); Chase v. State, 645 So.2d 829, 845 (Miss.1994); Foster v. State, 639 So.2d 1263, 1270 (Miss.1994).

¶ 6. Simmons, in his reply brief, points out that this Court has “repeatedly relaxed the procedural bar rule in capital cases,” citing Harrison v. State, 635 So.2d 894 (Miss.1994). Simmons also quotes from Pinkney v. State, which said: We have in death penalty cases the prerogative of relaxing out contemporaneous objection and plain error rules when the interest of justice so requires. Because the death penalty is a different sort of punishment with more severe consequences than other sentences, this Court's scrutiny of such cases is correspondingly heightened. In capital cases, the procedural bar is sometimes relaxed because of the nature of the right asserted. Also, this Court has relaxed its procedural bar to consider serious, cumulative errors. Even in capital cases procedural bars appear to be applied, based on a number of factors, on a case by case basis. Pinkney v. State, 538 So.2d 329, 338 (Miss.1988) (citations omitted). While these allegations of error are procedurally barred, we will address the merits of the underlying claims in the order raised by Simmons knowing that any subsequent review will stand on the procedural bar alone. Chase v. State, 645 So.2d at 845; Foster v. State, 639 So.2d at 1270. FACTS

¶ 7. In the early morning hours of August 11, 1996, Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County, Mississippi. They had only known each other a few weeks. Wolfe asked Leaser to accompany him on a trip to the Gulf Coast to “pick up some money” from some friends that were in his debt. Leaser later learned that the debt accrued some weeks earlier from a transaction involving drugs. While on the Gulf Coast, Wolfe also planned to buy new wheel rims and tires for his vehicle and then return through New Orleans with Leaser for a short vacation. Wolfe left Houston with twelve hundred dollars in his wallet. Leaser had approximately two hundred dollars in her purse.

¶ 8. Upon their arrival on the Mississippi Gulf Coast, they checked into the King's Inn Hotel. Wolfe and Leaser fell asleep. Wolfe awoke early and left Leaser at the Hotel to meet Sonny Milano, Timothy Milano's brother, who worked at a local tire store. Apparently, they met a few weeks earlier while Wolfe was on the Coast conducting his illicit business deal. Later that afternoon, Wolfe and Sonny returned to the hotel room to pick up Leaser for dinner. Sonny Milano left to get his girlfriend and the four met in Wolfe and Leaser's room at the hotel. They all took Wolfe's white Honda Civic to Shoney's where they dined together.

¶ 9. Sonny Milano testified that during dinner, Wolfe asked if Sonny planned to go to Simmons' house that evening. Sonny Milano, over loud protests from his girlfriend, decided to go to Simmons' house, arriving there late that evening after dropping her off. When he arrived, Simmons and Sonny's brother, Milano, were the only two at the house. Simmons asked Sonny if he had seen Wolfe and Sonny told him that they ate dinner together. Simmons asked Sonny to get in touch with Wolfe. Sonny contacted Wolfe at his hotel room and told Wolfe that he was at Simmons's house. Wolfe was pleasantly surprised to hear that Sonny was there, since Sonny's girlfriend was opposed to his going. Wolfe told Sonny that he would be there in a minute.

¶ 10. Sonny conveyed this information to Simmons, who less than one minute later, approached Sonny as he talked to Milano and asked him to leave the house. Sonny testified that he did not find this unusual because “that's just Gary.” Sonny left without explanation, with Wolfe on his way.

¶ 11. After dinner, as the couples parted ways, Wolfe and Leaser returned to their hotel where they relaxed before leaving to meet Wolfe's debtors. They drove out to Simmons's house but found no one home. After leaving the house to pick up cigarettes and a beverage, Wolfe and Leaser returned to the hotel. To pass the time, the two then went to Wal–Mart, and again tried to meet Simmons at his house. Still, no one was home. By this time it was nearly 10 in the evening, August 12, 1996. Again, they returned to the hotel. Near midnight, Wolfe received a phone call while Leaser stood outside smoking a cigarette. Wolfe hung up the phone, gathered Leaser, and left the hotel headed toward Simmons's house.

¶ 12. Upon arriving at the house, they found Simmons sitting on the front porch. The three began talking, and Simmons offered them some marijuana. Leaser and Simmons smoked a marijuana cigarette, but Wolfe refrained. Milano drove up as they finished the marijuana. Simmons was related to the Milanos by marriage; Simmons married their sister, Lori, but that marriage ended in divorce. Simmons offered his guests a beer, and all four adjourned to the kitchen and living room area. Simmons walked into the kitchen to get a beer while Leaser sat down at a table in the living room to roll another marijuana cigarette.

¶ 13. Leaser heard Wolfe and Milano chatting in the doorway separating the kitchen and living room. Wolfe mentioned the money he was owed. Apparently, Simmons and Milano owed Wolfe between twelve and twenty thousand dollars. They did not have the money, nor did they have the drugs. Simmons returned from the kitchen while Wolfe and Milano discussed this predicament. Leaser testified that she heard gunshots and saw Wolfe fall to the ground. Immediately thereafter, Simmons grabbed Leaser and ordered her not to look in the direction of Wolfe's body. Leaser noticed Milano standing directly behind Wolfe holding what was later identified as State's exhibit 29, a .22 caliber rifle.

¶ 14. Simmons took her to a back bedroom of the house and forced her to lie face down on the floor. He placed himself on top of her and began questioning her, asking whether she or Wolfe were law enforcement officers, whether Wolfe had any drugs with him, and who knew they were in Mississippi. She became understandably hysterical and simply responded that she did not know anything, as she and Wolfe had only become acquainted a few weeks ago. After Simmons finished questioning Leaser, he tied her hands behind her back, bound them to her feet with some rope, and locked her in a metal box with dimensions similar to a large footlocker near his bedroom, telling her he was “on a time frame” that he could not “mess up.”

¶ 15. Leaser managed to untie her hands and feet and began kicking the top of the box unsuccessfully trying to get out. Leaser continued kicking the top of the box until Simmons returned. He removed her from the box, stripped her nude, tied her up again and returned her to the box. Again, Leaser managed to free herself from the knotted ropes, but remained unable to get the top off of the metal box holding her. After some length of time had passed, Simmons returned to the box and took Leaser out. Simmons was undressed. He again forced her to lie face down on the floor of the bedroom. Leaser was in the middle of her menstrual cycle, so Simmons forced her to remove her tampon. He then raped her, telling her that her life depended on how well she performed sexually. Leaser testified that she thought he was holding a pistol to the back of her head during the assault.

¶ 16. Afterward, Simmons asked Milano if he would like to rape her as well; Milano declined. Simmons then took Leaser to the bathroom, allowed her to clean up with an athletic sock; and yet again, tied her up and locked her in the box.

¶ 17. While Leaser was secured in the box, Simmons and Milano went about their plan to dispose of Wolfe's body. Simmons, by trade, was a butcher in a meat market. Simmons's co-worker, Charles Jenkins, testified that during the preceding workweek, Simmons sharpened all of his knives and took them home from work for the weekend. Jenkins testified that this was rather unusual because everyone normally leaves their knives at work. Apparently, the only time that Jenkins could remember anyone taking their knives home was before leaving on an extended vacation or quitting the job. Simmons took those knives and began dismembering Wolfe in the bathtub. After gutting him and severing his head and limbs, Simmons, with Milano's help, began distributing Wolfe's remains into the bayou that ran behind Simmons's property using a boat Simmons borrowed from neighbor Donald Taylor FN1 only hours before. Alligators were known to inhabit the area. The bayou had a running current that eventually, through tributaries, fed into the Gulf of Mexico. FN1. Simmons told Taylor he needed the boat “to go fishing.”

¶ 18. Leaser, still locked in the box, again untied herself. Simmons returned to the box smoking marijuana and offered some to Leaser. She accepted. After sharing the marijuana cigarette, Simmons locked Leaser in the box with a blanket, where she fell asleep. She awoke to the sound of the telephone ringing. When no one answered it, Leaser reasoned that the house was empty. She mustered all of her energy and began banging on the top of the box. The lid popped off and Leaser managed to get out of the house. On her way out of the door, she grabbed a bag with some of her clothes and belongings in it. She then partially dressed herself. Leaser ran to a neighbor's house and convinced the neighbor to call the police. Upon their arrival, Leaser recounted the events of the previous twenty-four hours.

¶ 19. Many different law enforcement agencies were involved in investigating the scene of the crime. Leaser told police officers that Wolfe was inside, had been shot, and that she had been raped. Once the police arrived, they began to secure the area and investigate Leaser's claims. Moss Point police officers Lee Merrill and Richard Cushman entered the house with Leaser to determine if a crime had, in fact, been committed and if so, whether other victims were still in the house. Once the police officers saw blood and other evidence of violent crimes, they left the house and secured a search warrant.

¶ 20. After obtaining a search warrant, the police called the Mississippi Crime Lab, and they entered the house to gather evidence. From inside the house, they collected portions of fingernails from a wastebasket, a used condom, and two used tampons, among other things. The local police department also recovered a Marlin model # 60 .22 caliber rifle, eight empty .22 caliber shell casings, and Wolfe and Leaser's personal items originally left in their hotel room.

¶ 21. Near the rear of the property, a small “jon boat” was spotted near the water. Officers Magee and Graff investigated and requested that Officer Cushman join them. Near the boat they found four five gallon white buckets, one green plastic barrel, a one gallon bottle of Clorox bleach, a brush, a knife, and a bushhook. The brush and bushhook appeared to be covered in blood. An aluminum boat paddle was covered in bloody finger prints. In the boat, the officers discovered a piece of flesh. The local coroner called Dr. Paul McGarry to help with the investigation. Outside the house, but still on or very near Simmons's property, Dr. McGarry found the rest of Wolfe's body. Dr. McGarry testified that he and a group of police officers floated approximately two hundred yards down the bayou over which they found various parts of the skin, muscle, chest, abdominal walls, penis and testicles, lungs, heart, intestines, liver, as well as fingers and toes from a young human white male.

¶ 22. Dr. McGarry testified that the body parts had been cut sharply and with precision into block like sections of tissue. Most of the bones had been separated. Of the flesh he found and examined, several pieces had bullet holes in them. One portion of the chest had five bullet holes in it while another portion revealed one bullet hole. Some of the internal organs, the heart and lungs specifically, also had bullet holes in them. The left lung had a bullet lodged in it. Dr. McGarry testified that these gunshot wounds were the cause of death.

¶ 23. A further search of the area revealed Wolfe's severed head, upper chest portion, and pelvic area sans reproductive organs. Over two days of searching, they found, on the first day, eighty-five pounds of human remains the largest of which was seventeen inches in diameter. The following day, they collected forty-one pounds of similar pieces, with the largest piece measuring nineteen inches. Some pieces found later were large enough to have identifiable tatoos. All of the flesh was identified as belonging to Wolfe.

¶ 24. Simmons left his house after dismembering and disposing of Wolfe. He drove to Mobile, Alabama, where he made a videotape for his ex-wife and children. Throughout the video recording, Simmons spoke to his family in the most general terms about what he had done, although he never specifically admitted committing any crimes. Simmons mailed the video cassette to his wife and drove back to the Coast. Upon arriving at his house, Simmons noticed that Leaser had escaped. He immediately left again and went to see his friend Dennis Guess.

¶ 25. Guess testified that while they were conversing, Simmons volunteered that he had just “whacked a drug dealer, ... deboned him, cut him up in little pieces, and put him in the bayou.” Simmons told Guess that he used a butcher knife and bolt cutters to accomplish the task. Simmons also told Guess that he had a girl in a box and planned to “train her” and “keep her around as a sex toy,” but confessed that she had escaped. The conversation then turned to what realistic options Simmons had left. Simmons, after further discourse with Guess on this subject, decided against fleeing the jurisdiction or committing suicide. He eventually decided to turn himself in to the authorities.

STANDARD OF REVIEW

¶ 26. This Court will review an appeal from a capital murder conviction and death sentence with “heightened scrutiny” under which all bona fide doubts are resolved in favor of the accused. Porter v. State, 732 So.2d 899, 902 (Miss.1999). Further, this Court is cognizant of the fact that what may be harmless error in certain situations becomes reversible error where the penalty is death. Id.

LEGAL ANALYSIS
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S SELF–DEFENSE INSTRUCTION.

¶ 27. Simmons alleges that the trial court erred in denying his requested self-defense instruction. Simmons argues that the testimony of Dennis Guess established the factual basis necessary to provide the jury with a self-defense instruction. Simmons spoke with Guess soon after the killing. Guess testified that Simmons recounted the events of the evening to him and explained the alleged provocation behind the violent assault as follows: BY DENNIS GUESS: Okay, He [Simmons] said a drug dealer from Texas [Wolfe] and his girlfriend [Leaser] had come to his house night before last about midnight. Gary was supposed to have sold some drugs and collected some money for this guy. It didn't happen. Timmy [Milano] was supposed to have wasted the money, or the drugs, or what not. I don't know. But, anyway, the boy [Wolfe] broke bad on him and threatened him, to do something to him. * * * * * * BY ASSISTANT DISTRICT ATTORNEY SAUCIER: When you make the statement that the boy broke bad on him and he shot him, do you know who you are referring to in this statement when you said he just shot him? BY DENNIS GUESS: I made a reference to Wolfe being the one that broke bad. And either Gary or Timmy, unclear. One of them shot him.

¶ 28. Later, Leaser testified that Wolfe told her he always carried a .9 millimeter handgun, although she never saw it and one was never recovered. Leaser also testified that she never saw Wolfe brandish a weapon of any kind. Leaser further testified that Milano shot Wolfe while Simmons was with her in another room.

¶ 29. Simmons cites Manuel v. State, 667 So.2d 590 (Miss.1995) as support for this assignment of error, where this Court held: In homicide cases, the trial court should instruct the jury about a defendant's theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely, and the trial court's failure to do so is error requiring reversal of a judgment of conviction. Hester, 602 So.2d at 872. Where the instructions are in improper form and are the only ones embodying a legally correct theory of the defendant's defense, it is the duty of the trial court to see that the instructions are placed in proper form for submission to the jury. Id. at 873. Manuel v. State, 667 So.2d at 593.

¶ 30. The State asserts that the record does not contain any evidence to support Simmons' self-defense instruction. Jury instructions should be given only when facts developed in the case being tried support them. Walker v. State, 740 So.2d 873, 888 (Miss.1999). All evidence points to Simmons and Timmy Milano having executed a planned assault. Jenkins testified that Simmons took his knives home for the weekend. Leaser's testimony regarding Wolfe being unarmed, combined with her testimony that all of the conversations involving Wolfe, Milano and Simmons were “friendly” and resembled “chit-chat” more than argument, points away from any self-defense theory. Leaser also testified that Simmons informed her that he was on a time frame, and ordered her not to mess it up. This clearly suggests some premeditation that would rule out self-defense as being a motivating factor. Finally, Taylor's testimony that Simmons borrowed the boat less than a day before the killing to “go fishing” indicates he had a plan to distribute the body long before Wolfe arrived. Further, “Mississippi adheres to the common law rule that an aggressor is precluded from pleading self-defense.” Layne v. State, 542 So.2d 237, 244 (Miss.1989). Here, there was ample testimony that placed Simmons and Milano as the aggressor, thus Simmons is precluded from pleading self-defense. The State argues that this testimony and case law render Simmons's argument baseless, and we agree.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT'S MANSLAUGHTER INSTRUCTION.

¶ 31. Simmons argues that, if not in self defense, Wolfe was killed in the “heat of passion” and he therefore deserved a manslaughter instruction. The term “heat of passion” has been defined by this Court as: a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. Tait v. State, 669 So.2d 85, 89 (Miss.1996) (quoting Buchanan v. State, 567 So.2d 194, 197 (Miss.1990)). Simmons again relies on the alleged confrontation between Wolfe and Milano as the basis for his actions. The burden to overcome the presumption of murder lies with the defendant. Nicolaou v. State, 534 So.2d 168, 171 (Miss.1988). Simply presenting testimony from a witness who states that the defendant told him the “boy broke bad” on him does not overcome this presumption. Although Dennis Guess also testified that there “was an argument over some money or drugs”, he admitted he was unclear on that point. Leaser's eyewitness testimony refutes this allegation and crystallizes the nature of the encounter as conversational.

¶ 32. Additionally, where the killing occurred during the course of a robbery, the defendant is not entitled to a manslaughter instruction. Burns v. State, 729 So.2d 203, 225 (Miss.1998). Denial of a manslaughter instruction is proper where the record is clear that the decedent was shot with malice or deliberate design. West v. State, 725 So.2d 872, 890 (Miss.1998). More on point, the defendant in Walker v. State requested a self-defense instruction or provocation instruction because the defendant told a third party after the killing that the “dude [victim] made a move on him.” 740 So.2d at 888. The trial court denied this request, and this Court affirmed. It is clear that no reasonable hypothetical juror could find that this killing was without malice. Blue v. State, 674 So.2d 1184, 1201 (Miss.1996). There is no evidence in the record that supports a manslaughter instruction under the aforementioned authority as the State adduced evidence throughout the trial relating to premeditation. Therefore, Simmons was not entitled to a manslaughter instruction. This assignment of error is meritless.

III. THE TRIAL COURT'S RULINGS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE.

¶ 33. Simmons argues that the trial court prevented him from fully presenting his defense. Essentially, Simmons believes that because he was unable to introduce testimony regarding Milano's alleged knowledge of Wolfe's supposed involvement in the death of a former roommate in Houston, Texas, he was denied his right to present a defense. The defense believes this information was essential to Simmons' defense because Wolfe allegedly played some part in his former roommate's death, the result of a drug deal gone bad. Simmons therefore wanted to introduce this evidence to show that Milano, the “trigger man”, had a reason to fear for his life since he knew Wolfe had the potential to become violent when he realized that this drug deal was going to go bad as well.

¶ 34. Defense counsel tried to introduce testimony through Leaser regarding this alleged incident in Houston, Texas. The trial judge overruled these attempts to introduce this evidence saying “[s]he [Leaser] doesn't know anything about the Houston thing unless somebody told her that. And that's hearsay, and it's not admissible in this case. It's not even material in this case.” Simmons argues that prior bad acts of the victim are admissible as a hearsay exception if the defendant knew of them because they exhibit a basis for Simmons to view Wolfe as the aggressor. In support of this proposition, Simmons cites Heidel v. State, 587 So.2d 835 (Miss.1991). In Heidel, a man shot his wife after he said she attacked him with a butcher knife. Found guilty at trial, Heidel appealed alleging that the trial court erred in excluding his testimony regarding a previous incident only weeks before when his wife attacked him with a butcher knife. This Court held that Insofar as [the wife's] prior act may reflect a propensity for wielding her butcher knife, it was admissible on other grounds. True, we have a general rule that “a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]” Rule 404(a), Miss.R.Ev., but this case falls within a long recognized exception. The exception allows the accused, claiming self-defense, to offer “[e]vidence of a pertinent trait of character of the victim of the crime....” Rule 404(a)(2), Miss.R.Ev. Heidel's justifiable homicide defense rendered Esther's propensity for violence a “pertinent trait of character of the victim,” and it matters not how much of that defense had been put before the Court and jury at the time Heidel made his proffer. Heidel v. State, 587 So.2d 835, 845 (Miss.1991). However, reading further, this Court also required the admissibility of this character evidence to rest upon whether Heidel presented “evidence of an overt act perpetrated against him by the victim.” Heidel, 587 So.2d at 845. Simmons failed to clear this second hurdle. There is no testimony in evidence alleging that Wolfe made such an overt act. The only testimony resembling this comes from Dennis Guess who testified that Simmons told him that Wolfe “broke bad.” This is contradicted by the testimony elicited from Leaser who said that Wolfe and Milano had not behaved in a confrontational manner, and in fact that they acted like friends. Beyond this, neither Milano nor Simmons had any personal knowledge of the incident in Houston, as in the Heidel case. It is clear that the trial judge was correct in excluding the testimony and references to it as hearsay.

IV. THE TRIAL COURT ERRED BY GRANTING TWO OF THE PROSECUTION'S INSTRUCTIONS DURING THE GUILT–INNOCENCE PHASE OVER DEFENDANT'S OBJECTIONS.

¶ 35. Simmons alleges that the trial court erred in granting State's S–11 FN2 which he believes is an incorrect statement of the law. The State urges that this argument should be procedurally barred because defense counsel's objection to S–11 is different on appeal than the one offered at trial. At trial, it appears that defense counsel objected to S–11 on the grounds that it was an “aiding and abetting” instruction, rather than an incorrect statement of the law. The State cites Doss v. State, 709 So.2d 369, 378 (Miss.1996) for the proposition that an objection at trial on one specific ground constitutes a waiver on all other grounds. FN2. State's Jury Instruction S–11 reads as follows: The Court instructs the jury that one who willfully, unlawfully, and feloniously aids, abets, assists, or otherwise encourages the commission of a crime is just as guilty under the law as if he or she had committed the whole crime with his or her hand.

¶ 36. Simmons believes that this instruction relieved the prosecution of its burden to prove all of the elements of capital murder, robbery, kidnaping and rape. Simmons cites generally Hornburger v. State, 650 So.2d 510, 514 (Miss.1995) and Berry v. State, 728 So.2d 568 (Miss.1999).

¶ 37. Both Hornburger and Berry are distinguishable because they involved instructions that told the jury that each person who commits any act that is an element of the crime is guilty as a principle. S–11 simply does not contain the operative language that could be construed as reading that a defendant found guilty of aiding and abetting with respect to one element of the crime is guilty as a principle. When determining whether error lies in the granting or refusal of various instructions, we must consider all the instructions given as a whole. Coleman v. State, 697 So.2d 777, 782 (Miss.1997). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman, 697 So.2d at 782. The jury instructions listing the elements of capital murder (S–4a), robbery (S–3), kidnapping (S–7), and rape (S–8) all carefully lay out the elements of each crime. Additionally, Simmons is guilty as a principal under Miss.Code Ann. § 97–1–3 (2000).FN3 Thus, we find no error in the giving of this instruction. FN3. Miss.Code Ann. § 97–1–3 reads: “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.”

¶ 38. Simmons further claims that the trial court erred by granting jury instruction S–3b. The instruction is not contained in the record nor is it listed in Simmons' brief. This Court has held that the duty of the appellant is to present a sufficient record of the trial to prove that the alleged error actually occurred, and that the error was timely and properly preserved. Walker v. State, 671 So.2d 581, 620 (Miss.1995).

¶ 39. Simmons alleges that the instruction was improper because it allowed the jury to consider whether the underlying felony of robbery in the capital murder charge was based upon a robbery of either Wolfe or Leaser. Simmons also alleges that the State failed to prove what was taken during the robbery. The State based its case upon the notion that the murder was committed because Simmons and Milano owed Wolfe a debt they could not pay. Additionally, Leaser testified that when the police returned her belongings, she could not find $ 200 she placed in her purse for the trip. Additionally, Guess testified that Simmons said he was disappointed because Wolfe only had about one thousand dollars on him when he searched the body. This money was never recovered. The record easily supports the State's contention that the instruction had a sufficient evidentiary basis for both Wolfe and Leaser. In an effort to address the nature of the instruction, if not the exact language itself, the State cites Gray v. State, 728 So.2d 36, 71 (Miss.1998) (holding that where evidence is sufficient to support both phrases of a disjunctive statement, the use of the disjunctive term is of no consequence). This issue is meritless.

V. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT AS THE JURY'S FINDING THAT A ROBBERY WAS COMMITTED WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 40. Simmons contends that the trial court erred in denying his motion for a directed verdict, and that the jury's guilty verdict on the underlying felony of robbery was against the overwhelming weight of the evidence. These arguments challenge both the weight and sufficiency of the evidence. This Court's standard in regard to challenges to the weight and sufficiency of the evidence is clearly defined in McClain v. State, 625 So.2d 774 (Miss.1993). This Court said: The three challenges by McClain (motion for directed verdict, request for peremptory instruction, and motion for JNOV) challenge the legal sufficiency of the evidence. Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the Circuit Court overruled McClain's motion for JNOV. In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with McClain's guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Id. at 778 (citations omitted).

¶ 41. Simmons argues that the prosecution failed to adduce evidence sufficient to convict him of robbery, as defined in Miss Code Ann. § 97–3–73 (2000).FN4 Additionally, Simmons states that the prosecution failed to establish beyond a reasonable doubt that Wolfe's murder occurred during the commission of a robbery, violating the “one continuous transaction” language quoted in West v. State, 553 So.2d 8, 13 (Miss.1989). Lastly, Simmons argues that the State failed to prove that Simmons took any personal property belonging to Leaser with the intention of permanently depriving her of it. FN4. Miss.Code Ann. § 97–3–73 reads as follows: Every person who shall feloniously take the property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

¶ 42. The State asserts that Simmons unquestionably violated the provisions of Miss.Code Ann. § 97–3–73 and offers the testimony of Leaser and Dennis Guess as proof. Leaser testified that Simmons told her to remove all of her clothes and jewelry, and then he took them prior to raping her. Leaser never recovered the money missing from her purse. Leaser later recovered some of her belongings from a plastic bag in the kitchen as she dashed out of the door, making her escape. Simmons also confessed to Dennis Guess that he stole one $ 1,000 from Wolfe and was disappointed that Wolfe did not have more money on him at the time.

¶ 43. As for Simmons' argument that the language in West may be exculpatory in his case, a close reading of the language seems to belie this. This Court held that: Mississippi law accepts a “one continuous transaction” rationale in capital cases. In Pickle v. State, 345 So.2d 623 (Miss.1977), we construed our capital murder statute and held that “the underlying crime begins where an indictable attempt is reached....” 345 So.2d at 626. 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. E.g., Neal v. State, 451 So.2d 743, 757–58 (Miss.1984). The fact that the actual moment of the victim's death preceded consummation of the underlying felony does not vitiate the capital charge. West v. State, 553 So.2d at 13 (citations omitted) (emphasis added). Simmons's confession to Guess clearly reveals that the robbery occurred in connection with the killing. Also, the fact that he told Leaser before he raped her that he was “on a time frame” points out that he had a plan of some sort he tried to adhere to. Additionally, direct testimony from Simmons's neighbor, Donald Taylor, is illuminating on this subject. Taylor testified that just prior to the evening in question, Simmons asked to borrow his boat “to go fishing.” Taylor obliged him, as he had done in the past, and Simmons took the boat to his land and tied it up behind his house. This was the boat used to disperse Wolfe's body over the bayou.

¶ 44. This line of reasoning is further bolstered by the testimony of Simmons's former co-worker at the butcher shop who saw him carry his knives home for the weekend and Rita Taylor, a neighbor and wife of Donald, who testified that she was awake at about 3:00 a.m. on the night in question and stepped outside to put some bills in her truck to mail the next day and saw, by illumination of the streetlight, Simmons and Timmy Milano, both of whom she was previously acquainted with, each carrying a white bucket toward the bayou. Later, the authorities found several white buckets by the boat and identified DNA matter on them. These testimonials serve as additional evidence of premeditation to kill and dismember Wolfe in an effort to dispose of the body.

¶ 45. Accepting all credible evidence consistent with Simmons' guilt as true, and giving the State the benefit of all favorable inferences, there is overwhelming evidence that with respect to each element of the offenses charged, reasonable and fair-minded jurors could find Simmons guilty. VI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OVERRULING THE DEFENDANT'S MOTION FOR A MISTRIAL CONCERNING CERTAIN TESTIMONY OFFERED BY DENNIS GUESS.

¶ 46. Simmons directs this Court's attention to an unsolicited statement made by Dennis Guess on the stand and asks for reversal based upon this statement's alleged prejudicial affect on the jury. The exchange in question went as follows: BY DEFENSE COUNSEL BARTON: Now, I ask you whether or not Gary [Simmons] showed any remorse to you in the fact that he had cut Jeffery Wolfe up? BY DENNIS GUESS: Extreme remorse. He made a comment. He said that while he was in prison they told him that it gets easier and easier. He said this was so bad he just knew that he would never be able to do it again. Immediately following this exchange between defense counsel and Dennis Guess, defense counsel asked for a bench conference outside the presence of the jury which was granted. Simmons attorney addressed the trial judge and asked that he grant a mistrial because of the “highly prejudicial representation” made to the jury about Simmons serving prison time. The trial judge denied the motion, but offered to grant a limiting instruction, which defense counsel turned down.

¶ 47. “A determination of whether such an error [prejudicial testimony presented to a jury] is incurable, resulting in a mistrial, rests within the sound discretion of the trial court.” Snelson v. State, 704 So.2d 452, 456 (Miss.1997) (citing Logsdon v. State, 183 Miss. 168, 170, 183 So. 503, 503 (1938)). The trial judge overruled the mistrial motion saying that he did not think that the objectionable words “in prison” were really that prejudicial since there was no reference to when he was in prison or for what particular reason. Judge Jones reasoned that the public (and the jury) may well reason that Dennis Guess was referring to when Simmons turned himself in to the authorities and placed in a holding cell. Judge Jones pointed out that the public does not differentiate between the terms “jail” and “prison” in the way the legal system does.

¶ 48. Simmons cites Snelson v. State, 704 So.2d 452, 456 (Miss.1997) for the proposition that references at trial to past incarceration may constitute reversible error. In Snelson, the defendant blurted out that this was the third or fourth time he was on trial for murder. Clearly, the situation here is quite different. An off-handed reference by a witness that Simmons expressed remorse when he was “in prison” is far less damaging than the defendant commenting that he was on trial again for murder, as he had been several times before. Additionally, the State did not solicit this testimony; it came out when defense counsel questioned him.

¶ 49. In Wilcher v. State, 697 So.2d 1087, 1101 (Miss.1997), a reporter being questioned as a witness stated that he interviewed the defendant on “death row” at “Parchman Penitentiary.” The defense objected and the trial judge offered them a limiting instruction, but they did not request that he give it. The trial judge therefore did not give the limiting instruction and this Court found no error on appeal. Wilcher, 697 So.2d at 1101. Further, where an objection is sustained and no request is made that the jury be instructed to disregard the matter, there is no error. Marks v. State, 532 So.2d 976, 981 (Miss.1988). This issue is without merit.

VII. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

¶ 50. W. Harvey Barton, Simmons's trial attorney and one of the lawyers who perfected this appeal, alleges that he labored under “a classic conflict of interest” at trial and thus deprived his client of effective assistance of counsel. Simmons argues that because Barton failed to question Dennis Guess before he got on the stand, he was ineffective. Also, Simmons submits that because Barton represented Guess and his father in the past, he was under a conflict of interest in this case. The record is unclear on precisely what matters Barton represented the Guess family.

¶ 51. The standard for reviewing claims of ineffective assistance of counsel was set forth in Hansen v. State, 649 So.2d 1256, 1259 (Miss.1994) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The inquiry under Strickland is twofold: (1) was defense counsel's performance deficient when measured by the objective standard of reasonable professional competence, and if so (2) was [the appellant] prejudiced by that failure to meet that standard? Hansen v. State, 649 So.2d 1256, 1259 (Miss.1994). Defense counsel is presumed competent and the burden of proving otherwise rests on the appellant. Hansen, 649 So.2d at 1258. The defendant must prove both prongs of the Strickland test to succeed. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). This Court's scrutiny of defense counsel's performance is highly deferential. Hansen, 649 So.2d at 1259. With respect to the overall performance of the attorney, his choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within his discretion in planning a trial strategy. Cole v. State, 666 So.2d 767, 777 (Miss.1995).

¶ 52. Simmons argues that because Barton represented Guess, a witness for the prosecution, and/or his family in other legal matters, Barton operated under a prejudicial conflict of interest. The only evidence in the record concerning this occurred when Barton spoke to the Court during the mistrial motion: BY DEFENSE COUNSEL BARTON: Okay. I purposely did not talk to Dennis Guess before he took the witness stand for the reason that, number one, I represent his father and have for a number of years; number two, I think I have formerly given counsel advice to Dennis Guess; and, number three, I was satisfied with what he was going to say in his statement and I was prepared to accept that on the witness stand.

¶ 53. Simmons argues that based on this colloquy that the trial judge knew or should have known that Barton had a conflict of interest. The United States Supreme Court stated that “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests' and that an ‘actual conflict of interest adversely affected his lawyer's performance.’ ” Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. 2052 (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). “[T]he possibility of conflict is insufficient to impugn a criminal conviction on appeal.” Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). There is no evidence in the record to suggest that defense counsel acted in some manner other than capable. In fact, the trial judge commented as much when he said during his ruling on the Amended Motion for a New Trial that: I don't know anybody whatsoever, any lawyer that has defended a case any more stronger [sic] than Mr. Barton and Mr. Cunningham. I don't think the charge in regard to ineffective assistance of counsel [raised during the Motion for a New Trial] is justified ... I have been seventeen years on the bench. And I don't know anybody that has worked harder in regard to defending a case, even at their on [sic] risk in regard to things. The trial judge properly addressed this argument. There is no error here.

VIII. THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTION TO ADDUCE EVIDENCE CONCERNING AN ALLEGED BURGLARY OF THE VICTIM'S ROOM AT THE KING'S INN HOTEL.

¶ 54. Simmons argues the prosecution adduced “a significant amount of highly prejudicial evidence” that tended to establish that he burglarized the King's Inn hotel room that Wolfe and Leaser occupied while in Mississippi. Simmons was not indicted for burglary.

¶ 55. The testimony that Simmons refers to, as best as can be gleaned from the record and briefs, is Leaser's testimony that as she escaped Simmons' house the morning after the rape and murder, she saw her suitcase in the house. She testified earlier that when she and Wolfe left the hotel, her suitcase was there. The State argues that this assignment of error is procedurally barred. The State points out that Simmons failed to object when these facts were elicited and points to Williams v. State, 684 So.2d 1179, 1203 (Miss.1996) which holds that the contemporaneous objection rule is applicable in death penalty cases.

¶ 56. Although there was no contemporaneous objection at trial, Simmons relies on this Court's power to address “plain error” when a trial court's error impacts a fundamental right of a defendant. Sanders v. State, 678 So.2d 663, 670 (Miss.1996). In addressing the merits of the claim, the State offers that: Generally, evidence of a crime other than that charged in the indictment is not admissible evidence against the accused. However, where another crime or act is “so interrelated [to the charged crime] as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences,” proof of the other crime or act is admissible. Proof of another crime or act is also admissible where necessary to identify the defendant, to prove motive, or to prove scienter. Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994). Evidence of other bad acts is admissible in order to tell a complete story to avoid confusion among jurors. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995).

¶ 57. The State therefore argues that the burglary at the hotel is so interrelated to the capital murder charge that it constitutes a single transaction. The State believes this is a viable argument and asserts that this was part of the master plan by Simmons and Milano to cover their tracks and dispose of any evidence of the victims' presence in the State of Mississippi. Also, the State argues that this testimony explains how Leaser's belongings ended up at Simmons's house. We find that the testimony was harmless.

IX. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OBTAINED AS A PART OF AN ILLEGAL SEARCH AND SEIZURE.

¶ 58. Simmons argues that the search of his house and property violated his rights under the Fourth, Eighth and Fourteenth Amendments of the United States Constitution, as well as the corresponding sections of the Mississippi Constitution. Simmons argues that the trial court should have excluded the evidence obtained during this search including the murder weapon, the condom with incriminating DNA evidence, various body parts of the victim and the tools he used to dispose of the victim's body.

¶ 59. The trial court held a hearing on a motion to suppress the evidence collected from the house and surrounding property. Simmons argues that the police illegally searched his house before obtaining a warrant. From the record, it appears that two separate searches were conducted. Capt. Guy Magee and Harvey Graff initially went inside the house to look for other potential victims and secure the scene. After this initial search, Officers Cushman and Merrill searched the house with Leaser. They also looked for bodies and checked all of the rooms “to make sure that there was no one else in the house” rather than just perform a cursory search. Finding no one, they left the house and “secured it.” Officer Cushman then went to get a search warrant for the house. When asked why he went in the house after Officers Magee and Graff but before a search warrant was obtained, Officer Merrill said that there was an attic and other small spaces that needed to be checked to see if anyone was hiding in there. Additionally, police officers were in boats on the bayou collecting body parts and looking around the outside of the property by the time Officer Cushman returned with the search warrant.

¶ 60. The right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment of the United States Constitution as well as Article 3, Section 23 of the Mississippi Constitution. Section 23 of the Mississippi Constitution provides greater protections to our citizens than those found within the United States Constitution. Graves v. State, 708 So.2d 858, 861 (Miss.1997). This Court, speaking about searches of a private home has said: In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home—a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their ... houses ... shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Graves, 708 So.2d at 861 (citations omitted).

¶ 61. The United States Supreme Court has recognized that warrantless searches are allowed if they fall under specifically established and well-delineated exceptions. Id. at 861. This Court has set forth numerous exceptions to the requirement of obtaining a valid search warrant, including search incident to arrest, search of a vehicle, plain view, stop and frisk, hot pursuit and emergency search, and administrative searches. Id. at 862. It is black letter law that the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement. Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).

¶ 62. Using the emergency search exception, Judge Jones ruled that since the officers were faced with “exigent circumstances,” it was reasonable to search the house. The trial judge noted that the emergency circumstances included the recognition that two suspects were involved, that several cars were parked outside of the home indicating the possibility that any number of people may still be inside, and Leaser's uncertainty about Wolfe's condition.

¶ 63. As to the issue of curtilage, the judge again held that the searches did not violate the Constitution because exigent circumstances, like the “ebb and flow” of the tide in the bayou, existed. The officers testified that they feared the flesh would be eaten in the brackish water, or float down stream if they did not recover it immediately.

¶ 64. “In determining whether evidence should be suppressed, a trial court's findings of fact are not disturbed on appeal absent a finding that the ‘trial judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.’ ” Taylor v. State, 733 So.2d 251, 255 (Miss.1999) (citing Crawford v. State, 716 So.2d 1028 (Miss.1998)). The “emergency” or “exigency” doctrine is accepted as a narrowly defined exception to the general requirement of a warrant for all searches and seizures. Graves v. State, 708 So.2d 858, 862 (Miss.1997). The basic elements of the emergency exception are: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) The search must not be primarily motivated by intent to arrest and seize the evidence; (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Smith v. State, 419 So.2d 563, 570 (Miss.1982) (rev'd on other grounds). The reasonableness of those circumstances must be evaluated on a case by case basis. Smith v. State, 419 So.2d at 570. “Whether a subsequent entry is detached from an initial exigency and warrantless entry or is a continuation of the lawful initial entry can be determined only in light of the facts and circumstances of each case.” Id. at 573.

¶ 65. The State argues that the second entry was simply a continuation of the first. They argue that a complete sweep of the house wasn't made by the initial search; and thus, a second search was necessary. Clearly, Leaser's statement that a victim remained in the house satisfied the first prong of the Smith test. While in the house, the officers arrested no one and seized nothing, thus satisfying the second prong of the Smith test. Leaser's statements regarding the violent crimes provide ample probable cause based upon the “totality of the circumstances” to satisfy the third prong. We find no error in the trial court's determination.

X. THE TRIAL COURT ERRED BY ALLOWING THE EXPERT WITNESS TESTIMONY OF DEBORAH HALLER INTO EVIDENCE OVER OBJECTION FROM DEFENSE COUNSEL.

¶ 66. Simmons argues that the Director of the State Crime Lab's DNA division, Deborah Haller, should not have been allowed to testify on DNA probability statistics at trial because she holds a Bachelor of Science degree in Biology rather than a Ph.D. Haller testified that she had logged some hours of graduate work, but not yet earned her graduate degree. She noted that she had attended several courses offered at the F.B.I. Academy and worked for over ten years in the fields of serology and DNA analysis. Haller was also the senior analyst of the Crime Lab's bio-science division.

¶ 67. The trial judge conducted a voir dire of Haller and found her to be competent. The determination of the admissibility of expert witness testimony rests within the sound discretion of the trial judge. Crawford v. State, 716 So.2d 1028, 1045 (Miss.1998). We find no abuse of discretion; thus, this issue is without merit.

¶ 68. Simmons's further arguments under this assignment of error are rather unusual and unsupported by legal precedent. Simmons finds fault with Haller only reporting statistics on DNA profiles of white men when testifying as to whether or not the DNA found at the scene matched Wolfe. Haller told the jury that the blood from the crime scene was consistent with Wolfe's DNA and there was only a 1 in 390,000 chance that another Caucasian was the DNA donor. As the State pointed out, Wolfe was white. Any other racial group's statistics would be irrelevant.

¶ 69. Similarly, Haller testified that the DNA match from the sperm cells in the used condom were consistent with Simmons's DNA and that the particular DNA profile in the condom occurred in 1 in 80,000 people in the Caucasian population. Simmons also argues that she made basic errors as to statistical calculations and the distinctions she drew while testifying on the stand. All of these “errors” and “misstatements” should have and could have been dealt with on cross-examination. The defense had ample opportunity to question her about these alleged discrepancies at trial and, in fact, took full advantage of that opportunity. The jury chose to believe Haller. The jury is charged with listening to and reviewing conflicting testimony and witness credibility, and deciding whom to believe. Wetz v. State, 503 So.2d 803, 807 (Miss.1987).

¶ 70. Further, Simmons asserts that Haller shouldn't have been allowed to testify as to the mixture of DNA found in the condom and the probabilities that it matched both Simmons and Leaser. This is the same argument presented above on a different factual basis. There is no error here.

XI. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR A CONTINUANCE.

¶ 71. Simmons asks this Court to reverse this case based upon Judge Jones' failure to grant two requests for a continuance during the trial. The first request involved Simmons' desire to have more time for a DNA expert to review the results of the State's DNA analysis. The State provided the defense with the DNA results on July 23, 1997. On August 8, 1997, the defense filed a motion to acquire funds for a DNA expert of their own. The motion was heard on August 15, 1997. The trial was set to begin on August 23, 1997. The trial court granted the defendant the necessary funds, but denied the continuance.

¶ 72. The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice. Coleman v. State, 697 So.2d at 780 (citing Atterberry v. State, 667 So.2d 622, 631 (Miss.1995)). Unless a manifest injustice occurs as a result of the denial, this Court will not reverse. Walker v. State, 671 So.2d 581, 591 (Miss.1995).

¶ 73. The State argues that the defense knew at least three months prior to the production of the State's DNA report that they were doing DNA testing and that Simmons should have begun the process of hiring a DNA expert earlier to challenge the State's methodology or final report instead of waiting until the report was finished. The trial judge asked the defense if they had anyone in mind, knew how much money they would need, or any of the other information required before the judge could release State funds. The defense had no such information. The trial judge hesitated “to continue this case for the reason that a lot of effort has gone into it by Lauderdale County.”

¶ 74. The trial court did grant an overnight continuance to the defense to allow them to further prepare for the cross-examination of the State's DNA expert with their DNA expert, Dr. Ron Acton.FN5 FN5. Dr. Ron Acton's name appears in the record and briefs of both parties spelled any number of ways. The defense brief alone spelled it two different ways. We chose this spelling because it was used by all parties at one point or another and a footnote in Simmons's reply brief seems to confirm this way as correct.

¶ 75. The defense cites Polk v. State, 612 So.2d 381 (Miss.1992) as authority for this Court reversing on failure to properly allow time for expert testimony relating to DNA evidence. In the appendix to the opinion, to be used as guidelines for the bench and bar on DNA testing, this Court held that it is imperative that no defendant have such evidence admitted against him without benefit of an expert witness to evaluate the data on his behalf. Polk, 612 So.2d at 394. The record reflects that Dr. Acton was retained by the defense and that he participated in the defense, but never conducted an independent review of the DNA matter. Dr. Acton did not testify at trial. The record reflects that Dr. Acton was able to review the prosecution's report with defense counsel before Haller testified.

¶ 76. The State cites Lewis v. State, 725 So.2d 183, 187 (Miss.1998), which involved the defense counsel receiving expert footprint analysis from the State twenty-six days prior to trial. In Lewis, the trial court denied Lewis's motion for a continuance in order to get someone to rebut the State's footprint analysis. This Court held that Lewis had a meaningful opportunity to make use of the State's report, but failed to do so; thus, there was no error. The State argues the same reasoning applies to Simmons who could have gotten a DNA expert months in advance to monitor the procedures and evidence at the Crime Lab as Haller was conducting her analysis. The defense had a duty to supplement the record with a proffer of what their expert would have shown. They failed to do so. Thus, there is no error here.

¶ 77. Simmons's second claim for reversal based upon the trial court failing to grant a continuance occurred when the trial judge failed to grant a continuance when Leaser changed her testimony regarding her rape. Initially, Leaser claimed that both Simmons and Milano raped her. She recanted her allegation against Milano on her way to the trial from Houston, Texas.

¶ 78. The trial judge overruled the motion saying that the information was not exculpatory for Simmons, adding that although Leaser now claimed Milano did not rape her, she still claimed that Simmons did. Judge Jones noted that Simmons could cross examine Leaser on the trustworthiness of her testimony. In Hughes v. State, this Court rejected similar arguments based upon Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and U.R.C.C.C. 9.04. Hughes v. State, 735 So.2d 238, 253 (Miss.1999). Reversal on this point only applies to favorable evidence, such as evidence which is either exculpatory, or which tends to impeach the State's case. Hughes, 735 So.2d at 253. Here, as in Hughes, it is not clear that the evidence Simmons complained of favored his case or harmed the State's case against him. This issue is without merit.

XII. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION IN LIMINE TO EXCLUDE CERTAIN PHOTOGRAPHS FROM ADMISSION INTO EVIDENCE.

¶ 79. Simmons' next assignment of error addresses the admissibility of certain photographs of Wolfe's body parts that were entered into evidence by the State. Specifically, the defense argues that the trial judge erred in admitting one photo of Wolfe's severed head into evidence.

¶ 80. Photographs of the victim have evidentiary value when they aid in describing the circumstances of the killing, the location of the body, the cause of death, or clarify or supplement a witness's testimony. Gray v. State, 728 So.2d at 57. Their admissibility rests within the sound discretion of the trial court and will not be overruled unless there was an abuse of discretion. Gray, 728 So.2d at 57. The discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value. Woodward v. State, 726 So.2d 524, 535 (Miss.1997). 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. Hughes v. State, 735 So.2d at 263.

¶ 81. The prosecution used the photograph of the severed head several times. Once, they showed it to Officer Merrill, who identified it as Jeffery Wolfe's head. The defense objected to this as gratuitous, and the State responded that it needed it to identify the flesh found in the bayou as human, specifically belonging to Jeffery Wolfe. The defense was willing to stipulate that it was the remains of Jeffery Wolfe in the bayou. The judge overruled defense counsel's objection and the photo was entered as State's exhibit No. 8.

¶ 82. Later, the State again used the photograph when questioning Wolfe's girlfriend, Leaser. When the prosecution showed her the photograph and asked her to identify it, she burst into tears. Defense objected and said again that they were willing to stipulate that it was Wolfe, but the trial court overruled them, and Leaser positively identified it as Wolfe's head. The State argues that Dr. McGarry, the forensic pathologist, used the picture to describe the wounds around Wolfe's head and neck to match the type of instrument used to inflict those injuries. While Dr. McGarry does testify about the neck wounds, opining that the bush hook found at the scene was used to behead Wolfe, the record does not reflect that the State referred to exhibit No. 8 during questioning. Since the discretion of the trial judge runs toward unlimited admissibility, it is impossible for this Court to say that the trial judge abused his discretion.

XIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN RULING ON VARIOUS MATTERS IN THE GUILT PHASE OF THE TRIAL.

¶ 83. This assignment of error really consists of at least 13 sub-parts that serve as allegations of reversible error in and of themselves. Simmons argues that individually and cumulatively, the errors warrant reversal. He relies generally on West v. State, 519 So.2d 418, 419–24 (Miss.1988), which involved a trial judge who overstepped the bounds of his authority by questioning witnesses and offering trial strategy to the prosecution. This Court reversed West based upon the judge's obviously improper actions recognizing that since trial judges have a great deal of influence with juries, they should be exceedingly careful in their manner and commenting in front of a jury. West, 519 So.2d at 423.

¶ 84. The first error Simmons posits is addressed under Issue III—defense counsel's inability to elicit testimony about Wolfe's alleged involvement in a drug deal and murder in Houston, Texas, weeks before his trip to the Mississippi Gulf Coast. Simmons argues that the trial judge should have granted his request for a recess to confer with his client when this testimony was refused by the trial court. The record reflects that the trial judge told defense counsel that he would allow him to confer with his client as soon as questioning ended for the witness on the stand. A defendant and his attorney do not have a right to consult indiscriminately without leave of the court as one must adhere to orderly courtroom decorum and procedure. Pendergraft v. State, 191 So.2d 830, 839 n. 1 (Miss.1966). We find no error here.

¶ 85. Next, Simmons argues that the State's sustained objection during the following exchange when defense counsel addressed the jury during voir dire was error: BY DEFENSE COUNSEL BARTON: Do each of you understand that as he sits here today Mr. Gary Carl Simmons is an innocent man? Is there anyone here who doesn't believe he is innocent? BY DISTRICT ATTORNEY HARKEY: Judge, I object to that. That's not a correct statement of the law. As he sits here he is not innocent; he is presumed to be innocent. BY DEFENSE COUNSEL BARTON: So I left out the word presumed. He is presumed to be innocent. He is cloaked with that innocence. My apologies, Judge, if that— * * * * * * BY THE COURT: Objection sustained. This argument is without merit.

¶ 86. Simmons also believes that the trial court erred by overruling his objection to “reserve the right to object regarding his [Mr. Bush's] ultimate conclusions and opinions.” Both the prosecution and the defense accepted Mr. Bush as an expert in fingerprint identification. Simmons does not offer a coherent argument and fails to cite relevant authority. Defense counsel never objected during any of the direct examination and took full advantage of cross-examination of this witness.

¶ 87. Next, Simmons argues that the trial court erred by striking all of the questions and non-responsive answers given by Timmy Milano. The defense called Milano to the stand and asked a number of questions insinuating his guilt, to which, under advice of counsel, he refused to answer, invoking his Fifth Amendment privilege against self-incrimination. The State moved that this exchange be stricken from the record and Judge Jones granted that request. Simmons cites Hall v. State, 490 So.2d 858, 859 (Miss.1986), which holds that it is reversible error to refuse to permit the defendant to call a witness to the stand and question him in the presence of the jury even though it had been demonstrated that the witness would refuse to answer based upon his Fifth Amendment privilege against self-incrimination. This case is distinguishable because Simmons was allowed to call Milano to the stand. This issue is meritless.

¶ 88. Simmons' next contention, that Deborah Haller should not have been allowed to testify about certain aspects of the DNA evidence found at the scene is precisely the same argument presented under Issue X.

¶ 89. Simmons further argues that the trial court should have allowed him to introduce evidence concerning the past criminal records of Wolfe and Milano. Instead, the trial court granted the prosecution's motion in limine covering the previous criminal matters. This is the entire sum of his argument on this issue. Simmons simply asserts that the trial judge was in error and refers the Court to Newsom v. State, 629 So.2d 611 (Miss.1993), which addresses the admissibility of character evidence very generally. The referenced case bears no relevance to the issue in question, and we find no error here.

¶ 90. Next, Simmons argues that many sustained hearsay objections made at trial by the prosecution were erroneous. He cites no authority and gives no reasoning, but simply says that the trial court erred by sustaining them. Failure to cite relevant authority obviates the appellate court's obligation to review such issues. Williams v. State, 708 So.2d 1358, 1362–63 (Miss.1998).

¶ 91. Citing M.R.E. 602 (no testimony from witness allowed with lack of personal knowledge), 701 (opinion testimony of a lay witness) and Terry v. State, 718 So.2d 1115, 1122 (Miss.1998), Simmons argues that he should have been allowed to question Donald Taylor about Simmons's motives for using the boat. It was denied as speculative. Simmons cites several other objections as well that were of the same caliber. The Terry case holds that wide latitude should be afforded both sides in introducing evidence that supports their theory of the case, be it a defense or a scenario of how the crime unfolded. Terry, 718 So.2d at 1122.

¶ 92. The relevancy and admissibility of evidence are largely within the discretion of the trial court and this Court should only reverse where it is clear that discretion has been abused. Burns v. State, 729 So.2d 203, 218 (Miss.1998). It is also well settled that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right is affected by the ruling. Miss. Rules of Evid. 103(a). Simmons failed to show what right, if any would be affected by any of those rulings.

XIV. THE TRIAL COURT ERRED IN EXCLUDING A VIDEOTAPE OF THE DEFENDANT MADE HOURS AFTER THE COMMISSION OF THE CRIMES IN WHICH THE DEFENDANT DISCUSSES THE CRIMES AND EXHIBITS REMORSE FOR HIS PART IN COMMITTING THEM.

¶ 93. Simmons next argues that the trial court erred in excluding from the jury a videotape that Simmons made of himself shortly after the murder, decapitation, dismemberment of the body of Jeffery Wolfe and throwing the pieces into a bayou in hopes that alligators would devour the evidence of the gruesome crime. Simmons apparently sent the videotape to his ex-wife who in turn delivered it to his lawyer. We find that this video is both irrelevant, as well as inadmissible, hearsay. If allowed, it would only have bolstered Simmons' testimony had he elected to testify, or absolutely prohibited cross-examination if Simmons decided not to testify. Simmons did not testify.

¶ 94. Before trial Simmons took the opposite view from his current position regarding the videotape, arguing that it should not be disclosed to the State and that if required to produce it that the videotape could not be used as evidence against Simmons because it was private communication protected by attorney-client privilege. The trial court ruled the videotape had to be produced, but reserved ruling on the admissibility of the tape until trial. Simmons filed an interlocutory appeal with this Court and we denied the petition. At trial, the State moved to compel Simmons to produce the tape which the trial court granted. The State subsequently moved to exclude the videotape and the trial court stated that he would consider and rule on that issue if and when Simmons offered the videotape into evidence. Simmons' counsel apparently thought that the State would introduce the videotape because of Simmons' supposed admissions thereon. The State did not offer the tape into evidence, but rather subsequently moved in limine to exclude it. The trial court granted the motion subject to whether Simmons could lay a proper predicate for introducing the video during his case-in-chief.

¶ 95. Simmons argues that the denial of the videotape as mitigation evidence prevented him from demonstrating to the jury remorse for the crime. If allowed, however, Simmons would be enabled to end-run the hearsay prohibition by use of a self-serving videotape which was inadmissible as a statement against interest or for mental, emotional, or physical conditions then existing, because, such exception is applicable only where a defendant is unavailable. M.R.E. 804(b)(3); M.R.E. 803(3). Simmons was present during trial and elected not to testify, thus he cannot satisfy the exceptions. Under M.R.E. 402 the videotape is simply not relevant and thus not admissible. In Clanton v. State, the Court noted that: Clanton, pre-trial, vigorously opposed the statements being offered into evidence by the State, which the court overruled. The State, however, at trial made no effort to offer either into evidence. Clanton did not testify in his own behalf, and no witnesses were offered by the defense. Clanton did seek to introduce the two statements. Clanton, 539 So.2d 1024, 1028 (Miss.1989). In Clanton this Court held: These statements were hearsay. Ordinarily, under pre-rules decisions, they would have been inadmissible even if Clanton had testified, as an attempt to bolster his testimony ... The mere fact that the statements were in writing and would have been admissible had the State offered them, assuming as the circuit judge held, they had been freely and voluntarily given, does not mean that Clanton had the right to introduce them to bolster his defense. And, most especially is this true since Clanton did not testify himself ... Id. The issue here is strikingly similar to Nicholson ex rel. Gollott v. State, 672 So.2d 744, 754 (Miss.1996), where this Court noted that, “Gollott wished to have the tape of his confession played at trial, to show the extremely upset and remorseful demeanor he had, in an effort to show he did not intentionally kill Diane, and that it was an accident.” Id. This Court held that, “Our caselaw states that the defendant is barred from introducing a statement made by the defendant immediately after the crime, if it is self-serving, and if the State refuses to use any of it.” See also, Tigner v. State, 478 So.2d 293, 296 (Miss.1985); Jones v. State, 342 So.2d 735, 736–37 (Miss.1977). Additionally, in Shorter v. State, 257 So.2d 236, 240 (Miss.1972), this Court held that “[i]t is a general rule that declarations of a party in his own favor are not admissible in his behalf.” Further, in Wilson v. State, this Court stated: A declaration made by a defendant in his own favor, unless part of the res gestae or of a confession offered by the prosecution, is not admissible for the defense. A self-serving declaration is excluded because there is nothing to guarantee its trustworthiness. If such evidence is admissible, the door would be thrown open to obvious abuse: an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence. Wilson, 451 So.2d 718, 721 (Miss.1984) (emphasis added).

¶ 96. Here, the State did not introduce the videotape, and the defendant, though present, did not testify. The trial court correctly ruled that Simmons must comply with precedent and the rules of evidence, and lay a proper predicate for the video to be admissible. He did not, and accordingly it was not admissible.

¶ 97. Besides, contrary to the view that the jury was prohibited from hearing that Simmons was remorseful, in fact, Simmons presented the issue of his supposed remorse for the murder legitimately and properly through the testimony of his friend, and State witness, Dennis Guess. The video, however, was self-serving hearsay, irrelevant and properly disallowed by the trial court.

XV. THE PROSECUTOR ENGAGED IN MISCONDUCT REQUIRING REVERSAL.

¶ 98. This assignment of error is another where Simmons argues at least fifteen different subpoints under a main heading of “prosecutorial misconduct.” As the State notes in its brief, Simmons should be procedurally barred from making many of these arguments because he failed to make a contemporaneous objection at trial. Evans v. State, 725 So.2d 613, 670 (Miss.1997). This Court has held that the failure by defense counsel to contemporaneously object to a prosecutor's remarks at trial bars consideration of prosecutorial misconduct allegations on appeal. Davis v. State, 660 So.2d 1228, 1255 (Miss.1995). “In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remark, but must also take into account defense counsel's opening salvo.” Edwards v. State, 737 So.2d 275, 299 (quoting Booker v. State, 511 So.2d 1329, 1331 (Miss.1987)). The State also cites Holland v. State, 705 So.2d 307, 345–49 (Miss.1997), as authority that the prosecutor is entitled to make inferences from the record and that all statements must be read in the context of the way they were presented to the jury.

¶ 99. Simmons rests his argument upon several cases, including but not limited to Cabello v. State, 471 So.2d 332, 346 (Miss.1985) and United States v. Young, 470 U.S. 1, 8 n. 6, 105 S.Ct. 1038, 1043 n. 6, 84 L.Ed.2d 1, 8 n. 6 (1985). However, these cases do not hold what Simmons argues they do. They each address prosecutorial misconduct, but do not support reversal based upon similar statements made by prosecutors in those instances. For example, Hickson v. State, 472 So.2d 379, 384 (Miss.1985) does say that the prosecution should not be permitted to deflect the attention of the jury from the issues before it, but the Court was referring to distractions akin to the prosecution's presentation of the victim's “pickled hands” sealed in a jar to the jury when they had not been offered into evidence nor received as an exhibit. The situation in Hickson is very different than the one we are faced with today; comments made by the prosecution about defense counsel's trial strategy.

¶ 100. The first allegation Simmons raises concerns the prosecutor's admonishment to Barton to “quit lying to the jury” during defense counsel's closing arguments. The exchange went as follows: BY DEFENSE COUNSEL BARTON: I want y'all to look at what the definition of what robbery is. But I want to give you a definition. It's out of the dictionary. BY DISTRICT ATTORNEY HARKEY: That's improper. He can't stand up and read a dictionary. It's a definition according to the law, not Webster. BY DEFENSE COUNSEL BARTON: Judge, I'm not reading the definition of robbery. If I can continue with my argument, I will clear it up. BY DISTRICT ATTORNEY HARKEY: Well, then quit lying to the jury. BY THE COURT: Well, you said you were going to read the definition of robbery from Webster's dictionary. BY DEFENSE COUNSEL BARTON: No, sir. The definition of robbery is a jury instruction. And if I misquoted that, I'm sorry. It seems as though District Attorney Harkey was responding to defense counsel Barton's attempt to introduce improper lay definitions of legal terms, and was done in a effort to rebut an argument proffered by the defense. Evans v. State, 725 So.2d 613, 673 (Miss.1997). Simmons offers no analysis of the statement and its prejudicial effect. No contemporaneous objection was made, so the State invokes the procedural bar.

¶ 101. The second set of questionable statements surrounds Simmons's elusive expert, Dr. Ron Acton. Defense counsel Barton was cross-examining the prosecution's DNA expert, Deborah Haller, and asked the following question that elicited the objectionable comment by Assistant District Attorney Saucier: BY DEFENSE COUNSEL BARTON: Knowing that you were preparing to testify as a DNA analyst in the Gary Simmons trial and knowing that [Assistant District Attorney] Ben Saucier had called you and Dr. Acton had called you, what, please ma'am, prevented you from making a copy of your file and giving it to Ben Saucier, myself, or Dr. Acton before yesterday morning? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Counsel knows the answer to that because I wasn't getting in between two experts, one of whom I don't have any respect for. And I specifically told this lawyer [Barton] that I wasn't dealing with Dr. Acton. I ran him out of this courtroom one time about five years ago and I didn't want to have nothing else to do with him. He knows the answer. I told him to have his pseudo-expert get in touch with my lady. The two sides exchanged barbs during respective closing arguments, calling each other's experts “pseudo” experts, while the State noted that Dr. Acton “won't even come into the courtroom.”

¶ 102. As the State points out, no contemporaneous objection was made and raises the procedural bar. Simmons offers no further argument other than it amounts to general “prosecutorial misconduct” to make these statements.

¶ 103. Next, Simmons argues that District Attorney Harkey “launched a highly prejudicial attack” on Barton in his closing arguments by saying: BY DISTRICT ATTORNEY HARKEY: ... or hear from lawyers who ask questions with no answers. From lawyers who speculate, who tell you [sic] speculate, who tell you a story as if he is producing a movie—producing a movie or something. I have never heard an argument like I just heard in court. BY DEFENSE COUNSEL BARTON: Excuse me. If I'm not allowed to attack them, then I would offer the same objection and ask that he not be allowed to attack me, because that would be a personal attack. BY THE COURT: I think he is attacking your argument. You cannot attack personalties in regard to counsel. * * * * * * BY DISTRICT ATTORNEY HARKEY: Hello. Where are we? I thought I was in one trial. The defense thought they were in another, and they heard all this other stuff. This is what the defense finds objectionable. It seems clear that the prosecution is attacking the argument and defense theory rather than Barton personally.

¶ 104. Simmons further argues that the prosecution prejudicially attacked him by asking Barton, “What rule is that? Use the rule book counselor. Find that for me.” when responding to Barton's assertion that certain testimony should be allowed under a hearsay exception. The State raises its procedural bar again, as Barton failed to make a contemporaneous objection alleging prosecutorial misconduct through personal attacks.

¶ 105. Simmons also argues that it was prosecutorial misconduct for the prosecutor to ask Lori Simmons whether or not Barton also served as her ex-husband's divorce attorney and to later refer to his client as a “sociopath”. Again, no argument is raised in support of this issue by Simmons; and again, the State raises the procedural bar.

¶ 106. Simmons is also upset that the prosecution, during closing arguments, told the jury that Simmons could not get a fair trial in front of twelve people in Jackson County. This comment, made in an effort to express agreement with defense counsel, was in direct response to a similar comment made by defense counsel during their closing argument: BY DEFENSE COUNSEL CUNNINGHAM: ... and that's the reason you are here. Because we could not get twelve people to sit in that jury who had not already predisposed his guilt. * * * * * * BY ASSISTANT DISTRICT ATTORNEY SAUCIER: And counsel opposite is right. We could not get twelve people in this county because of the absolute horrible nature and how it impacted our county. Further, the State raises the procedural bar due to lack of a contemporaneous objection.

¶ 107. Simmons also argues that the prosecutor committed reversible conduct during the voir dire based upon the following exchange with a potential juror. The question was whether anyone had a family member that was a victim of a violent crime: BY VENIRE MEMBER NUMBER 106: 106, Barbara Hannah. I did not put it on the form because it happened years ago in 1979. It was my ex-husband's niece who was murdered during a rape. BY DISTRICT ATTORNEY HARKEY: Is there anything about that experience that would influence you today? I mean, 1979, I'm not sure Mr. Simmons was in the State of Mississippi at that time. Would there be anything about that that would influence you one way or the other? The defense failed to raise a contemporaneous objection, thus the State raises the procedural bar. During jury selection, she was excused for cause. Again, no argument in support is presented by the defense.

¶ 108. Simmons also alleges that the prosecutor commented on his decision not to testify. He cites Griffin v. State, 557 So.2d 542 (Miss.1990), which said: No person ... shall be compelled in any criminal case to be a witness against himself, ... U.S. Const. Am. 5. See also, Miss.Code Ann. section 13–1–9 (1972); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). This constitutional right has been construed by this Court to have been violated, not only when a direct statement is made by the prosecution as to the defendant's not testifying, but also by a comment which could reasonably be construed by a jury as a comment on the defendant's failure to testify. Griffin, 557 So.2d at 552. On this basis, Simmons argues that the following exchange amounts to reversible error by the prosecution for making said improper reference. This colloquy occurred while defense counsel was questioning Leaser: BY DEFENSE COUNSEL BARTON: But did you know whether Gary Simmons knew that you were going to be there? BY BROOKE LEASER: I don't know. You would have to ask him. BY DEFENSE COUNSEL BARTON: For all Gary Simmons knew— BY DISTRICT ATTORNEY HARKEY: Excuse me, Judge. He gets an answer, the only answer this witness can give. Now he wants to argue with the witness. Simmons does not explain how this amounts to a comment by the prosecution on his failure to testify. Since this comment came from the witness he was questioning and no contemporaneous objection was made, the State again invokes the procedural bar.

¶ 109. Next, Simmons argues that the State improperly referred to matters outside the record. Counsel is allowed considerable latitude in the argument of cases. Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991)(citing Craft v. State, 271 So.2d 735, 737 (Miss.1973)). The boundaries are well established, limiting counsel to the facts introduced in evidence, deductions and conclusions he may reasonably draw therefrom, and the application of the law to the facts. Ivy, 589 So.2d at 1266 (citing Davis v. State, 530 So.2d 694, 701–02 (Miss.1988)). Simmons points to a reference the prosecution made that Leaser would have been killed had she not escaped as improper. Simmons believes that nothing in the record points to him expressing a desire, directly or indirectly, to kill Leaser.

¶ 110. The State argues that all of the evidence regarding his intentions to cover up the crime and his statement to Dennis Guess that he regretted that Leaser got away serve as an evidentiary basis to draw the inference that he planned to kill the only eyewitness. Leaser's testimony regarding the specifics of the rape seem to indicate that Simmons contemplated killing her. She testified that she thought Simmons put a gun against the back of her head and told her that her life depended upon how well she performed sexually.

¶ 111. Simmons also argues that the prosecution went outside the boundaries of the evidence when they noted that Simmons planned the killing rather than Milano and that Simmons was no longer allowed to see his step-daughter. The State invokes the procedural bar on both of these issues. With regard to the statements about Simmons's step-daughter, his ex-wife testified that she divorced him because of “allegations” made against him by his step-daughter. The record does not reflect the prosecution or defense making any reference to sexual impropriety. Obviously, the prosecution is allowed to comment on a statement made by a witness.

¶ 112. As for the comment concerning the premeditated nature of the murder, Simmons' actions of taking his butchering tools home from work for the weekend, an unusual move, and committing the act in his home provides an adequate evidentiary basis for alleging that he planned the event. It is a question for the jury to decide.

¶ 113. The defense also argues that Wolfe's pistol was found in his car. The pistol was never produced at trial and the prosecution consistently argued that it was not found. Simmons doesn't attempt to state how this is prosecutorial misconduct. The State never wavered from its proposition that if, in fact, there was a gun, it was never recovered. Leaser testified that Wolfe told her he had one, but she also testified that she never saw it. Again, the State invokes the procedural bar.

¶ 114. The defense also feels the prosecution was out of line when it said during the Motion for a New Trial, that they possessed no evidence of Milano having a previous drug conviction. The trial court granted a motion in limine suppressing all references to the previous criminal records of Wolfe and Milano. Apparently, Milano had a conviction for the sale of narcotics in the State of Connecticut. Defense Counsel Barton found out about this and wanted to use it at trial. Barton argues that because there was an actual conviction that was on record as a proffer, the prosecutor misstated the evidence in the record. This Court will not hold the prosecution in error for observing a court order.

¶ 115. Simmons also accuses the State of misstating the law regarding the correct presumption of innocence, the standard of guilt beyond a reasonable doubt, and the Enmund factors. The State raises its procedural bar against all of these allegations of error. As to the comment regarding Simmons' presumption of innocence, Simmons objects to the following comment made by the prosecutor during voir dire: Presumption of innocence goes along until the case is proved [sic] to the standard that's necessary beyond a reasonable doubt. Do you understand that? And that's the law. And the burden is always on the State of Mississippi to prove its case. But the Judge, by telling you that Mr. Simmons as he sits here is presumed to be innocent is not making a judgment about Mr. Simmons. He is telling you what the law is. Understand? In reference to the “reasonable doubt” standard, the following is what Simmons objects to: Beyond a reasonable doubt. That's the law. We agree with that. Right? Will you hold us to that standard? Will you hold us to the standard of beyond a reasonable doubt and not hold the State of Mississippi to beyond all possible conceivable imaginary doubt? To my way of thinking, that's a different standard, a lot harder, lot higher. I'm splitting hairs with you. Simmons's arguments about the sentencing instruction hinge on the prosecution's comments during closing arguments of the sentencing hearing reviewing the sentencing instruction with the jury. It went as follows: The first is that you have to find one of four things really. If you don't find any of them, go home; it's over. That's the first bus stop. That Gary Carl Simmons actually killed Jeffery Wolfe. I will tell you right now that's not out theory, never has been. He didn't pull a trigger. He didn't actually kill him. The second one is that the Defendant, Gary Carl Simmons attempted to kill, Not our proof, not our theory, you haven't found that. Nobody has argued that to you. So the first two are out that door. The next two I think you can find. I think you have found them already. He has been found guilty of capital murder. Killing during the commission of a robbery. Number 3, the defendant intended the killing of Jeffery Wolfe to take place. That sounds reasonable. You have heard that before. That's what y'all did by your first verdict. That's exactly what you did. You found that he was involved in the killing, and it was for robbery and expungement of debt. You found that. The fourth one is that he contemplated lethal force would be used. The Enmund factors to be considered are whether the jury makes a written finding of one or more of the following: (a) the defendant actually killed; (b) the defendant attempted to kill; (c) the defendant intended that a killing take place; (d) the defendant contemplated that lethal force would be employed. Enmund v. Florida, 458 U.S. 782, 797–801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Humphrey v. State, 759 So.2d 368, 382 (Miss.2000) citing Miss.Code Ann. § 99–19–101(7) (1994). These are precisely the factors that the prosecution covered in that statement to the jury. Not one of the myriad allegations listed above individually or cumulatively require reversal predicated upon prosecutorial misconduct in this case.

XVI. THE TRIAL COURT ERRED BY SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.

¶ 116. Simmons argues that the trial judge erred when he submitted to the jury the aggravating circumstance contained in Miss.Code Ann. § 99–19–101(5)(c) FN6 that the defendant knowingly created a great risk to many persons in killing Jeffery Wolfe. Simmons believes the trial judge was in error because there was insufficient evidence proffered by the State to support either of the submitted theories alleged to have created this “great risk.” FN6. Miss.Code Ann. § 99–19–101(5)(c) reads in pertinent part: (2) After hearing all the evidence, the jury shall deliberate on the following matters: (a) Whether sufficient factors exist as enumerated in subsection (7) of this section; (b) Whether sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; (c) Whether sufficient mitigating circumstances exist as enumerated in subsection (6) of this section, which outweigh the aggravating circumstances found to exist; and (d) Based on these considerations, whether the defendant should be sentenced to life imprisonment, life imprisonment without eligibility for parole, or death. (3) For the jury to impose a sentence of death, it must unanimously find in writing the following: (a) That sufficient factors exist as enumerated in subsection (7) of this section; (b) That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and (c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances. In each case in which the jury imposes the death sentence, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) of this section and upon the records of the trial and the sentencing proceedings. If, after the trial of the penalty phase, the jury does not make the findings requiring the death sentence or life imprisonment without eligibility for parole, or is unable to reach a decision, the court shall impose a sentence of life imprisonment. (4) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Mississippi within sixty (60) days after certification by the sentencing court of entire record, unless the time is extended for an additional period by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court. (5) Aggravating circumstances shall be limited to the following: (a) The capital offense was committed by a person under sentence of imprisonment. (b) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. (c) The defendant knowingly created a great risk of death to many persons.

¶ 117. Specifically, Simmons believes that the State failed to show who, other than Wolfe and possibly Leaser, would have been at “great risk” when Timmy Milano discharged the weapon that night. Simmons argues that “two” people do not constitute “many” people as the statute contemplates. He offers Jackson v. State, 684 So.2d 1213 (Miss.1996) as an example. In Jackson, this Court affirmed the use of the aggravator because four children were stabbed to death and one adult and two other children received life threatening wounds. Jackson, 684 So.2d at 1235. Use of this aggravating circumstance is not limited to those crimes where very large numbers of individuals are at risk or those where the safety of others than the intended few was jeopardized. Id. at 1235. The State argues that the procedural bar should apply. However, Miss.Code Ann. § 99–19–105(3)(b) FN7 states that this Court must consider the sufficiency of the evidence to support the aggravating circumstances. FN7. Miss.Code Ann § 99–19–105 reads in pertinent part: (1) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Mississippi Supreme Court. The clerk of the trial court, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the Mississippi Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Mississippi Supreme Court, a copy of which shall be served upon counsel for the state and counsel for the defendant. (2) The Mississippi Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal. (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99–19–101; (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and (d) 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.

¶ 118. Beyond this Simmons argues that, if he caused risk of harm to a great many people, it was not done so knowingly. He cites Porter v. State, 732 So.2d 899, 905 (Miss.1999) (rev'd on other grounds). Porter was hired to shoot and kill a man. He did so and then fled the scene. Simmons cites Porter for the proposition that, although reversed on other grounds, the Court instructed the lower court on remand not to give this aggravating factor again because there was little chance that someone other than the intended victim would have been harmed.

¶ 119. The State argues that Milano's repeated firing of the rifle in a residential neighborhood suffices as knowingly creating a risk of death to many people. As best as one can glean from the record, Milano and Wolfe were the only two people in the room when the killing occurred. While it is undeniably dangerous to fire a weapon inside of an occupied house, we are unsure that if upon doing so, you have knowingly created a great risk of death to many people. This Court would have to conclude that Wolfe, Leaser, and Simmons together constitute “many” people for purposes of the statutory language. We decline the opportunity to do so here.

¶ 120. Additionally, the State argues that placing body parts, fluids and other vestiges of human remains in community waters, as Simmons did, also creates a risk of harm to many people; we agree. Simmons contaminated the recreational waters of the residential neighborhood with Wolfe's remains, much of which was not recovered by police. These actions were intended to attract alligators and other similar creatures in an effort to use what nature had to offer to dispose of the evidence. Adjoining landowners and other water enthusiasts were subjected to this inherent danger as a direct result of Simmons' actions. In addition, all of those residents who used that water as it carried the solid and liquid remains of Wolfe through tributaries into the Gulf of Mexico were subjected to this toxic mixture as well.

¶ 121. Simmons also claims that the use of this aggravator is unconstitutionally vague. This Court has held that Mississippi's capital sentencing scheme, as a whole, is constitutional. Puckett v. State, 737 So.2d 322, 363 (Miss.1999). Thus, this claim is meritless.

¶ 122. We find that the evidence regarding Simmons' disposal of Wolfe's remains into the bayou constituted knowingly creating a great risk to many people. There is no reversible error here.

XVII. THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS IN ITS RULINGS DURING THE SENTENCING PHASE OF THE TRIAL.

¶ 123. Simmons argues that the trial court committed numerous errors at the sentencing phase of the trial. Simmons believes that the trial court disallowed mitigation evidence that would have helped him avoid receiving the death penalty. This Court has held that the jury must have as much information as possible when it makes its sentencing decision. Mackbee v. State, 575 So.2d 16, 39 (Miss.1990). Mississippi allows evidence of a mitigating circumstance of an unlimited nature. Mackbee, 575 So.2d at 39.

¶ 124. Simmons argues that the limitations placed on the following exchanges between his ex-wife and counsel constitute reversible error on the trial court's part: BY DEFENSE COUNSEL BARTON: Lori, do you know what might have caused the events leading up to what happened on August the 13, 1996? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: To that I'm going to have to object. That's just too much speculation. We have tried to be as reserved on objections as we possible can. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: When you heard that Gary had been charged with this crime, did you believe that this was the same Gary that you had been married to all those years? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: That's been asked and answered, Your Honor, earlier on when he asked her virtually the same question. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: Does he [Simmons] love [his daughters] Heather and Felicia? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Objection, Your Honor. Calls for speculation. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: Lori, would you like to see that type of continuing relationship, as bad as it may be, exist between you, Felicia, Heather and Gary? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Objection, Your Honor. That's impact on family members. We object to it. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: But you still would like the father of your children— BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Objection, Your Honor. That's an impact question. BY THE COURT: Objection sustained. Simmons argues that the answers to these statements were admissible under M.R.E. 401, 403, 602, 608, 701 and the Eighth Amendment to the U.S. Constitution.

¶ 125. Those responsible for sentencing the defendant should not be precluded from considering, as a mitigating factor, 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. Wilcher v. State, 697 So.2d 1087, 1103 (Miss.1997) (citing Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)). The rule expressed in Eddings “does not limit the trial court's power to exclude from the sentencing phase as irrelevant, evidence not bearing on the defendant's character or prior record, or the circumstances of the offense.” Wilcher, 697 So.2d at 1103 (citing Cole v. State, 525 So.2d 365, 371 (Miss.1987)). “[I]t is clear that the evidence must be relevant to one or more of those factors.” Id. at 1103.

¶ 126. Lori Simmons was not prohibited from fully testifying to crucial evidence during the sentencing phase. She had already been asked about and answered some of these exact questions, and subsequently discussed much of the very subject matter of the initially prohibited answers. She was allowed to testify that Gary was “the hardest working man” she knew. Regarding the crime of August 13, 1996, Lori had already testified that, “I didn't believe it. I thought someone was calling me and playing a prank at work actually.” Subsequently, Lori did testify that she loved Simmons and that Simmons loved and was a good father to his children, in fact that his “greatest joy in life” was his daughters. Although the trial judge may have initially erred in sustaining the State's objections to several questions posed to Lori, in fact, subsequently, she was allowed to respond and fully explore the issues posed by the previous denied questions. This Court will only reverse where the trial court has abused its discretion. Burns v. State, 729 So.2d 203, 218 (Miss.1998) quoting Hentz v. State, 542 So.2d 914, 917 (Miss.1989). Nor was there any prejudice or injury to any substantial right since Lori ultimately testified regarding issues upon which she was initially precluded from testifying. M.R.E. 103(a). Error here was cured, thus harmless.

¶ 127. Additionally, Simmons argues that the trial court should have granted his motion for a cooling off period after the verdict was rendered before having the jury consider sentencing. In a similar situation we have stated: The jury brought the guilty verdict in at 12:46 p.m., and the judge allowed a 15 minute recess before beginning the sentencing phase of the trial. The judge, in denying the motion, noted that it was the middle of the day, the jury had already eaten lunch, and he did not see any reason for a cooling off period. Mississippi's statutory scheme concerning the guilt and sentencing phases of a capital murder trial provides only that “[t]he proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.” Miss.Code Ann. § 99–19–101(1) (1994). Ordinarily, trial judges have broad discretion in determining how long trials last on any given day. In utilizing this discretion, trial judges should keep in mind the mental and physical toll that litigation takes on the lawyers involved and the defendant's right to effective assistance of counsel. McGilberry v. State, 741 So.2d 894, 919 (Miss.1999) (citations omitted). The situation in McGilberry is almost identical to this case. The defense noted that it was Labor Day weekend and one juror had a paid vacation he was waiting to embark upon. The defense wanted to wait until the following Tuesday to conduct sentencing, but the trial judge said that after questioning the juror during voir dire, he didn't think that the vacation meant that much to him. The motion was made by 1:00 p.m. on a Friday afternoon and defense counsel offered no other reason for the requested six-hour cooling off period or, in the alternative, the entire weekend, besides letting the jurors “collect their thoughts” to avoid any “inflamed, impassioned, or prejudiced” thoughts lingering from the verdict deliberations. The State objected and the trial judge saw no evidence of inflamed passions or prejudice among the jurors. The trial judge, in his discretion, determined that it was proper to go forward. The defense has done nothing to show that this was improper or an abuse of discretion.

XVIII.THE TRIAL COURT ERRED BY GRANTING MANY OF THE PROSECUTION'S INSTRUCTIONS DURING THE SENTENCING PHASE OF THE TRIAL.

¶ 128. The State argues that this allegation of error should be procedurally barred. The record reflects that the sentencing instructions were given by agreement and without objection. Simmons now asserts that the trial court committed reversible error in ruling on the instructions for the sentencing phase FN8. Simmons specifically alleges that the trial court submitted the “non-existent statutory aggravator” that the capital offense was committed for pecuniary gain during the commission of a robbery. He alleges that Miss.Code Ann. § 99–19–103 contains no such language and pursuant to Hunter v. State, 684 So.2d 625 (Miss.1996) this Court should reverse because it is fundamental error for the trial court to fail to properly instruct the jury with regard to the law. The State points this Court to language in Turner v. State, which quotes Jenkins v. State, 607 So.2d 1171, 1182 (Miss.1992), rejecting this argument because the use of robbery and pecuniary gain aggravators were, in essence, just one. Turner v. State, 732 So.2d 937, 955 (Miss.1999). FN8. The sentencing instructions were lost. The transcript of the trial judge reading the sentencing instructions is contained in a supplemental volume to the record. The argument and information in the briefs are based upon this transcription.

¶ 129. Similarly, Simmons argues that the trial court erred in instructing the jurors that they were to “consider the detailed circumstances of the offense” citing Leatherwood v. State, 539 So.2d 1378, 1383 (Miss.1989) as support for the proposition that a sentencing jury is limited to the enumerated aggravating circumstances and the mitigating circumstances offered by the defendant. Again, the State points to Turner, which held that the language “you may objectively consider the detailed circumstances of the offense for which the defendant was convicted” in the sentencing instruction is not error, but is recognized by this Court as proper. Turner, 732 So.2d at 953.

¶ 130. Simmons points out error on the trial court's part that resulted from giving the jurors a “catch-all” mitigator, alleging that the jurors “could and would” have interpreted the instructions to read that they had discretion in deciding what was and was not a mitigating circumstance. The State refers this Court to a case involving identical arguments where we held that the language at issue did not authorize the jury to ignore non-statutory elements of mitigation, but rather instructed them that they might consider additional mitigating evidence. Evans v. State, 725 So.2d 613, 694 (Miss.1997). It is therefore in conformity with Miss.Code Ann. § 99–19–101(1), which states that any relevant mitigating evidence introduced on behalf of the defendant may be considered by the jury. Evans, 725 So.2d at 694. This Court has approved instructions containing this language and note that catch-all language regarding mitigating factors should be employed in every case. Id. at 694.

¶ 131. Simmons makes this same argument with regard to a jury instruction that he believes the jurors could and would have read as saying they could only consider a mitigating circumstance if they agreed unanimously. Again, this argument has been rejected by this Court. See Williams v. State, 684 So.2d 1179, 1201 (Miss.1996) (holding that instruction that used the word “unanimous” in regard to aggravating circumstances, but not in regard to mitigating circumstances, is not error).

¶ 132. Simmons posits the argument that the jurors could and would have read the instructions as requiring that once one aggravating circumstance was found to exist, then the burden shifted to the defense to demonstrate that the death penalty should not be imposed. The language in Williams prevents this interpretation. Every mandatory element of proof is assigned to the prosecution. Neither the burden of production nor the burden of proof ever shifts to the defendant. Williams, 684 So.2d at 1202.

¶ 133. In the alternative, Simmons argues that the instructions failed to require the prosecution to prove beyond a reasonable doubt that the aggravating circumstances were sufficient to impose the death penalty, that the aggravating circumstances outweighed the mitigating circumstances, and that the defendant should suffer death. The State argues that they were not required to prove that aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt as that would be contrary to established case law. Edwards v. State, 737 So.2d 275, 314 (Miss.1999) (holding that the majority rule of this Court is that the jurors are required to find the existence of each aggravating circumstance beyond a reasonable doubt, but the jury is not required to find that the aggravating circumstances beyond a reasonable doubt outweigh the mitigating circumstances following the statute.).

¶ 134. Simmons also claims that he is entitled to have an instruction that the jury must find beyond a reasonable doubt that the death penalty is the appropriate penalty. This Court addressed this argument in Williams and said “[t]he Mississippi statutory scheme does not require this finding.” Williams, 684 So.2d at 1202. None of the arguments asserted by Simmons under this issue, singly or cumulatively, require reversal.

XIX. THE TRIAL COURT ERRED BY REQUIRING THE DEFENSE TO EXERCISE SOME OF ITS PEREMPTORY CHALLENGES PRIOR TO THE PROSECUTION TENDERING TWELVE ACCEPTED JURORS.

¶ 135. Simmons argues that the trial court erred by requiring “the defendant to exercise his seventh, eighth, and ninth peremptory challenges on jurors who had never been tendered to the prosecution for acceptance or peremptory challenge.” After a careful review of the record, no evidentiary support for this argument can be found. The only segment of the record that closely resembles this accusation is reproduced below in the following exchange: BY ASSISTANT DISTRICT ATTORNEY SAUCIER: We should have used six challenges and now tender twelve. BY DEFENSE COUNSEL BARTON: That's what I have got. BY THE COURT: That's what I have got. BY DEFENSE COUNSEL BARTON: We would strike number two. We will tender number five, strike number eleven. That's defense second strike. Strike number fourteen, ... exercise D–8 strike on number forty-four, D–9 strike on number forty-five, tender number forty-seven. That's twelve jurors through forty seven. The State exercised six peremptory challenges and tendered twelve potential jurors. The defense then exercised six peremptory challenges and accepted six. Defense counsel then proceeded to strike three jurors, accept six jurors, and tender the panel of twelve to the prosecution. Immediately thereafter, the State used four more strikes. At no point did the defense interpose an objection, thus the State raises its procedural bar. [104]

¶ 136. Simmons relies on Miss.Code Ann. § 99–17–3 FN9 to support his argument. This Court has mandated that the failure to abide by the statute is reversible error. Peters v. State, 314 So.2d 724 (Miss.1975); Gammons v. State, 85 Miss. 103, 37 So. 609 (1905); State v. Mitchel, 12 So. 710 (1893). FN9. Miss.Code Ann § 99–17–3 states in full: In capital cases the defendant and the state shall each be allowed twelve peremptory challenges. In cases not capital the accused and the state each shall be allowed six peremptory challenges; but all peremptory challenges by the state shall be made before the juror is presented to the prisoner. In all cases the accused shall have presented to him a full panel before being called upon to make his peremptory challenges.

¶ 137. Peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. Fleming v. State, 732 So.2d 172, 181 (Miss.1999)(citing Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)). The State also cites Miss.Code Ann. § 13–5–87 (1972) which states that “[a]ll the provisions of law in relation to the listing, drawing, summoning and impaneling juries are directory merely, and a jury listed, drawn, summoned or impaneled, though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn, and it shall have the power to perform all the duties devolving on the jury.”

¶ 138. Simmons still had a peremptory challenge to use after all sides agreed on the jury. No objection was made, and a panel of twelve was submitted to the defendant at the beginning of the exchange. This argument is without merit.

XX. THE TRIAL COURT ERRED IN THE PROCEDURE IT USED IN SELECTING THE COUNTY FOR THE CHANGE OF VENUE.

¶ 139. The defense argues that the trial court erred in when it allowed the prosecution to “determine which county venue was changed to upon proper application by the defendant for a change of venue.” Simmons argues that the trial judge based his decision “solely on the prosecutor's directive.” The record belies this assertion.

¶ 140. Mississippi law recognizes that the granting of a change in venue is a matter largely within the discretion of the trial court. Evans v. State, 725 So.2d 613, 646 (Miss.1997). The decision to change venue, although left to the sound discretion of the trial judge, is not one involving unfettered discretion. Evans, 725 So.2d at 646.

¶ 141. The trial court arrived at the decision to change venue in the following manner: BY THE COURT: Does either side have any suggestions in regard to the site to change this venue to? BY DEFENSE COUNSEL CUNNINGHAM: We are still in the preliminary stages of getting some research on that matter, Your Honor, and trying to reach a decision. Offhand, we would hope for a county in northern Mississippi if at all possible. BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Your Honor, I look at Interstate 20 as a good area because it is outside the normal publishing area ... And I would submit to the Court that probably Lauderdale or Rankin County would be more suitable as a trial site just for the purposes of having a municipal area. BY DEFENSE COUNSEL CUNNINGHAM: Specifically, Your Honor, we would oppose Rankin County. We would request Lafayette, possibly Granada [sic] County, Montgomery County in North Mississippi. BY THE COURT: How about Lauderdale County? BY DEFENSE COUNSEL CUNNINGHAM: I'm not prepared to comment on that at this point, Your Honor. BY THE COURT: I don't know what facilities Granada [sic] County has. Are you familiar with theirs? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: I am. I'm not satisfied with Granada [sic]. And the distance, also, Your Honor, is adding another hundred miles plus above Jackson. I think once you reach I–20 I can't imagine that there would be any publicity of this at all that would possibly taint any jury. The makeup of Lauderdale County I do know is very similar to the makeup of Jackson County as far as populations and races of population .... ample courthouse space, ample facilities. BY THE COURT: The court will grant a change of venue, and we will change the venue to Lauderdale County. BY DEFENSE COUNSEL CUNNINGHAM: To Lauderdale? BY THE COURT: Lauderdale. BY DEFENSE COUNSEL CUNNINGHAM: All right, sir. Thus, the record reflects that the trial judge considered the racial makeup of the counties, the courthouse space, and other factors before making his decision. Simply because the trial judge selected one of the counties offered by the State does not qualify the decision as reversible error due to the trial judge's wide latitude of discretion in rendering those types of decisions. Further, Simmons raised no objection. This issue is procedurally barred, and we further find it to be meritless.

XXI. THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS DURING THE “DEATH/LIFE” QUALIFICATION COMPONENT OF VOIR DIRE.

¶ 142. Simmons argues that the trial court erred by granting the State's cause for challenge of potential juror Paula Evans. Additionally, Simmons believes that the trial court erred by denying defense counsel's challenges for cause regarding jurors Price, Hart, Null, Schanrock, Haynes, Robertson, and Johnson.

¶ 143. With regard to Paula Evans, the thrust of her testimony is that, when asked by the prosecution if she could set aside her personal beliefs against the death penalty, she continually responded by saying that she “would try” her best to do so or that she thought she could do it. This Court has held that a prospective juror who indicates that he or she would “try” to follow the court's instruction is not enough. Billiot v. State, 454 So.2d 445, 457 (Miss.1984).

¶ 144. Simmons's complaint against the other seven jurors is questionable at best. The record reflects that Simmons did not use all of his peremptory challenges. The record further reflects that none of the contested jurors served on the actual jury panel. The State believes that Simmons's argument should fall under the weight of the following authority: The law afforded Hansen twelve peremptory challenges. Miss.Code Ann. § 99–17–3 (1972). He exercised but seven—three being used on jurors Woodward, Adams and Conduit. Our settled rule requires that, before an appellant may challenge a trial court's refusal to excuse a juror for cause, he must show that he utilized all of his peremptory challenges. See, e.g., Berry v. State, 575 So.2d 1, 9 (Miss.1990); Chisolm v. State, 529 So.2d 635, 639 (Miss.1988); Johnson v. State, 512 So.2d 1246, 1255 (Miss.1987); Billiot v. State, 454 So.2d, 445, 457 (Miss.1984). The reason for the rule is that the appellant has the power to cure substantially any error so long as he has remaining unused peremptory challenges. We would put the integrity of the trial process at risk were we to allow a litigant to refrain from using his peremptory challenges and, suffering an adverse verdict at trial, secure reversal on appeal on grounds that the Circuit Court did not do what appellant wholly had power to do. Hansen v. State, 592 So.2d 114, 129 (Miss.1991). Further, each juror testified that they could put aside their personal views about the death penalty and follow the law in regard to Simmons' case. It appears that, by this admission, they rehabilitated themselves. This language of “putting aside” personal beliefs was approved in the following passage of Leatherwood v. State: The two veniremen, Robert Nations and Mary Garrett, indicated that they had strong views in favor of the death penalty. After the court overruled appellant's challenge to the jurors, appellant used two of his peremptory challenges to strike them. We have carefully considered the questions propounded to and responses of Nations and Garrett and are of the opinion that the trial court's ruling was in full compliance with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). When questioned by counsel both jurors said that they could put aside their personal feelings, follow the law and instructions of the court and return a verdict based solely upon the law and the evidence and not vote for the death penalty unless the evidence warranted it. Leatherwood v. State, 435 So.2d 645, 654 (Miss.1983). The trial court cannot be said to have erred by following this language.

¶ 145. Simmons also contends that the trial judge erred by conducting an individualized voir dire of the jurors who were in favor of the death penalty. This Court has said that voir dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” Ballenger v. State, 667 So.2d 1242, 1250 (Miss.1995). This Court has directed the trial court to take a substantial role in conducting Witherspoon voir dire of potential jurors in capital cases. Ballenger, 667 So.2d at 1250. There is no error here.

XXII. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTION TO OBTAIN A PROMISE FROM PROSPECTIVE JURORS TO RETURN A SPECIFIC VERDICT UNDER A SPECIFIC SET OF CIRCUMSTANCES.

¶ 146. Simmons argues that the trial court erred by allowing the prosecution to obtain pledges from jurors to convict him of rape and sentence him to death. Simmons alleges that the prosecution was inappropriately allowed to pose questions to prospective jurors concerning how they would act if presented with a certain set of hypothetical circumstances, which he believes resembled those of the case at hand. The allegations are based upon a series of questions concerning the jurors' willingness to impose the death penalty for various crimes and convict for rape without evidence of the utmost resistance. The first line of questioning went as follows: BY DISTRICT ATTORNEY HARKEY: ... [O]f the ones who responded that you can make that consideration that the law requires you to make, before imposing a penalty of death would you require a multiple killing, a killing of more than one person? BY THE JURORS: No. BY DISTRICT ATTORNEY HARKEY: Anybody fell that way? BY THE JURORS: No. BY DISTRICT ATTORNEY HARKEY: Anybody fell that before I can impose the death penalty I need to know that we have a fellow with a lot of crimes, he has been in a lot of trouble? BY THE JURORS: No. BY DISTRICT ATTORNEY HARKEY: What you are telling me basically is that you can consider the death penalty for one homicide. BY THE JURORS: Yes. BY DISTRICT ATTORNEY HARKEY: Can you do that? BY THE JURORS: Yes. BY DISTRICT ATTORNEY HARKEY: For one killing. Can you do it? BY THE JURORS: Nod (in the affirmative). BY DISTRICT ATTORNEY HARKEY: Anybody feel that regardless of what other aggravating circumstances are presented, if he didn't kill more than one person, or if he wasn't in trouble with the law I don't think I can impose a death penalty? See how it gets a little bit more information? You follow me? See what I'm saying? You get more information. I want to know right now if it would affect you one way or the other. Would it, anybody? BY SOME JURORS: No. Simmons also disapproves of the following question: BY DISTRICT ATTORNEY HARKEY: With respect to the rape case, would the evidence for you to find somebody guilty of committing rape, would you require the State of Mississippi to prove or require that a victim come in here and say that she resisted until she was beaten to a bloody pulp and seriously injured before you could find someone guilty? We are talking about forcible rape here. I believe force is an element that we are going to have to prove. But would you require a victim resist until she is unconscious, fight and struggle dealing against overwhelming odds?

¶ 147. The defense asserts that these questions, along with questions posed to a particular prospective juror, violate Mississippi's rule against eliciting promises from jurors that they will return a specific verdict under certain circumstances. Miss. U.R.C.C.C. 3.05. Simmons relies heavily upon Holland v. State, in which counsel for the defense was restricted from asking whether prospective jurors would automatically rule out alcohol as a mitigating factor. Holland v. State, 705 So.2d 307, 338–39 (Miss.1997). “It is reversible error to ask a juror during voir dire to commit to returning a particular verdict.” Stringer v. State, 500 So.2d 928, 938 (Miss.1986).

¶ 148. The State points out that Simmons failed to contemporaneously object to any of the questions it now lists as error. In Edwards v. State, this Court held that the failure to object during voir dire barred the issue from being raised on appeal. Edwards v. State, 737 So.2d 275, 308 (Miss.1999).

¶ 149. The prosecution's questions do not elicit the jurors to commit to a particular verdict. In order for there to be per se error, the questions must be a direct request for a promise for a specific verdict. Stringer, 500 So.2d at 938. Since we do not have such a request in the case at bar, our review is based upon the familiar abuse of discretion standard, and we find nothing in the record to indicate any such abuse. Edwards, 737 So.2d at 308.

XXIII. THE TRIAL COURT ERRED BY LIMITING THE VENIRE IN LAUDERDALE COUNTY

¶ 150. Simmons next contends that the trial court erred by limiting the venire to: (1) qualified electors of Lauderdale County or resident freeholders for more than one year; (2) persons over the age of 21, and (3) persons who could read and write. Simmons argues that his rights under the Fifth and Fourteenth Amendments were violated as well as those under Article 3, Sections 14 and 26 of the Mississippi Constitution by so limiting the venire. Simmons's contention is that properly qualified citizens were denied their right to participate actively in government, which cannot be allowed. Powers v. Ohio, 499 U.S. 400, 408–09, 111 S.Ct. 1364, 1369, 113 L.Ed.2d 411 (1991). Simmons extends the argument, originally concerning racial discrimination, to cover property ownership, age, and literacy citing cases not directly dealing with the right to be on a jury. Quinn v. Millsap, 491 U.S. 95, 109 S.Ct. 2324, 105 L.Ed.2d 74 (1989); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). In addition, Simmons asserts that his right to a fair and impartial jury drawn from a cross section of the community was denied him by the venire limitations. However, Mississippi case law holds the contrary; in fact, restrictions such as these have specifically been upheld by this Court. Chase v. State, 645 So.2d 829, 844–45 (Miss.1994); Turner v. State, 573 So.2d 657, 666 (Miss.1990); Irving v. State, 498 So.2d 305, 319 (Miss.1986); Leatherwood v. State, 435 So.2d 645, 654 (Miss.1983); Edwards, 737 So.2d at 319; Wilson v. State, 574 So.2d 1324, 1331 (Miss.1990).

¶ 151. Simmons's argument is further weakened by the fact that although the trial judge referred to them, no members of the venire were excluded based upon the three criteria. Therefore, the venire was not “limited” by the trial judge.

¶ 152. In addition, Simmons again failed to raise a contemporaneous objection to the use of the aforementioned criteria and is thus procedurally barred from asserting the claim on appeal. Williams v. State, 684 So.2d 1179, 1203 (Miss.1996).

XXIV. THE TRIAL COURT ERRED BY ALLOWING THE SELECTED JURORS TO RETURN HOME AND PACK CLOTHING FOR THE WEEK BEFORE BEING SEQUESTERED.

¶ 153. Simmons contends that the trial court erred in allowing the jurors to go home and pack clothes for the week of trial without being sequestered. The defense further alleges that this act was in violation of procedural rules which state, “in any case where the state seeks to impose the death penalty, the jury shall be sequestered during the entire trial.” Miss. U.R.C.C.C. 10.02. The principle of this rule is to insure a fair and impartial jury that will return a verdict beyond reproach.

¶ 154. The State first points out that Simmons did not object at the time of the decision which normally acts as a procedural bar. However, Simmons counters that requiring sequestration of a jury cannot be waived. Wilson v. State, 248 So.2d 802, 805 (Miss.1971).

¶ 155. With or without the procedural bar, Simmons's argument fails under the recent case of Watts v. State, 733 So.2d 214, 242–44 (Miss.1999). Just as in the case at hand, the jury in Watts was allowed to go home to pack, but were admonished with special instructions. Watts, 733 So.2d at 242. Although this Court stated that a better procedure would have involved the potential jurors bringing clothing with them before final selection, allowing the jurors to quickly go home “does not warrant reversal of the entire case.” Id. at 244. In fact, the preferred procedure was unavailable to Judge Jones in the present case because jury selection began and ended in a single day. This allegation of error lacks merit without proof that one or more of the jurors disobeyed the judge's instructions.

XXV. THE DEFENDANT HAS BEEN DENIED HIS RIGHT TO A MEANINGFUL APPEAL.

¶ 156. Simmons alleges that there are substantial omissions in the record that deny him the right to a meaningful appeal. Defense counsel lists as missing the following items: transcriptions of the bench conferences, sentencing phase instructions, and guilt/innocence phase jury instructions. The assertion is that the absence of these items leads to an incomplete record which, in turn, means there cannot be a truly meaningful review on appeal.

¶ 157. Simmons did not follow the proper procedure for correcting omissions in the record as set out in the Mississippi Rules. M.R.A.P. 10(c). The Watts case indicates that the failure to do so acts as a procedural bar to raising the issue on appeal. Watts v. State, 717 So.2d 314, 317 (Miss.1998).

¶ 158. The argument that the absence of the bench conference transcripts hurts the defense's case on appeal is meritless. Defense counsel failed to object to the lack of transcriptions at the time; thus, he is procedurally barred from raising the issue on appeal. Burns v. State, 729 So.2d 203, 212 (Miss.1998) (“It is in poor grace for counsel to participate without objection in unrecorded bench conferences and complain for the first time on appeal.”) (quoting Thorson v. State, 653 So.2d 876, 895 (Miss.1994)).

¶ 159. The absence of the jury instructions is a more difficult situation. A true copy of said instructions is missing; however, affidavits and copies of transcripts of the instructions being read are included within the record. Thus, it is difficult to ascertain exactly what effect the inclusion of copies would have achieved. The record is sufficient to analyze all of the issues and properly review the case. Thus, this issue is procedurally barred, and bar notwithstanding, lacks merit.

XXVI. MISSISSIPPI'S CAPITAL PUNISHMENT SCHEME IS UNCONSTITUTIONAL AND THE IMPOSITION OF THE DEATH PENALTY IN THIS CASE IS DISPROPORTIONATE.

¶ 160. The crux of Simmons's disproportionality argument is that Milano, the “trigger man”, received only a life sentence while Simmons has been sentenced to die. Simmons supports this claim by pointing out that the jury did not find that he killed or attempted to kill anyone and that non-triggermen rarely receive the death penalty, although he fails to cite similar cases. The State, however, points out that the jury did find that Simmons intended Wolfe's death and contemplated that lethal force would be employed. In Doss v. State, 709 So.2d 369, 400 (Miss.1996), this Court held that, where a jury finds that the defendant intended the killing and contemplated that lethal force would be used, the death penalty is not disproportionate for a non-triggerman. In addition, this Court on several other occasions has ruled the death penalty was not disproportionate for those whom did not do the actual killing: This Court has affirmed death sentences where the appellants were not the actual killers. In Stringer v. State, 454 So.2d 468 (Miss.1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985), Stringer, while not the actual triggerman, “was the instigator, the planner, the master-mind, and the one who directed the entire occurrence. According to the testimony of the two participants, the attempted armed robbery and the killing would not have occurred had it not been for appellant.” Stringer, 454 So.2d at 479. In Leatherwood v. State, 435 So.2d 645 (Miss.1983), this Court affirmed Leatherwood's sentence of death although he did not do the actual killing. More recently in Ballenger v. State, 667 So.2d 1242 (Miss.1995), the jury's sentence of death was unanimously affirmed by this Court even though Ballenger was not even present when the actual robbery and beating that resulted in the victim's death took place. In affirming, the Court held, “like Stringer and Leatherwood, [Ballenger] instigated and planned the robbery of Ellis. Her actions secured others to kill.” Id. at 1268. Smith v. State, 724 So.2d 280, 304 (Miss.1998). Under this authority and those in the attached Appendix, Simmons's sentence is not disproportionate even though he was not the person who actually shot and killed Wolfe. There is ample evidence to show that he did have an active role in planning and participating in the robbery and murder.

¶ 161. Simmons next contends that Mississippi's capital punishment scheme is unconstitutional as applied to him. The defense contends that the capital punishment scheme does not allow the jury to consider the fact that Simmons did not kill or attempt to kill Wolfe as a mitigating factor. However, case law states the contrary. Evans v. State, 725 So.2d 613, 684 (Miss.1997).

¶ 162. Defense counsel's next argument is that the capital punishment scheme is unconstitutional on its face. As support, Simmons points out that premeditated murders are treated with more deference than a simple felony murderer making the scheme a form of disproportionate punishment. Also, the defense says that allowing the underlying felony to also be considered as an aggravating circumstance violates the Eighth Amendment and Section 28 of the Mississippi Constitution. However, this Court has held exactly the opposite: We have previously rejected this argument. See Ladner v. State, 584 So.2d 743, 762 (Miss.1991); Minnick v. State, 551 So.2d 77, 96–7 (Miss.1988), rev'd on other grounds, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). Ladner and Minnick expressly rejected the stacking argument based on the United States Supreme Court ruling in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). The Minnick Court stated that Lowenfield “held that the fact that the sole aggravating circumstance found by the jury in its penalty decision was identical to an element of the underlying offense did not violate the Eighth Amendment.” Minnick, 551 So.2d at 97. Bell v. State, 725 So.2d 836, 859 (Miss.1998). Accordingly, the lower court will not be held in error on this issue.

XXVII. THE ERRORS TAKEN TOGETHER IN THIS CASE WARRANT REVERSAL.

¶ 163. Simmons's final assertion of error is that each of the above enumerated errors, when taken together, warrant reversal as cumulative error. Simmons cites Hickson v. State, as authority for this proposition when this Court held that reversal was warranted by their perception of a combined prejudicial impact of two actions taken by the State that substantially compromised Hickson's right to a fair trial. Hickson v. State, 472 So.2d 379, 385 (Miss.1985).

¶ 164. The State counters with a quote from Doss v. State, which reads “[w]here there is no reversible error in any part, .... there is no reversible error to the whole.” Doss v. State, 709 So.2d 369, 401 (Miss.1996). Additionally, this Court has held that a murder conviction or a death sentence will not warrant reversal where the cumulative effect of alleged errors, if any, was procedurally barred. Doss, 709 So.2d at 401. Cumulatively, these errors do not warrant reversal.

CONCLUSION

¶ 165. The trial court committed no reversible error in its rulings below. Therefore, we affirm the conviction of Gary Carl Simmons of capital murder, rape and kidnaping, and the accompanying sentences of death and two terms of life imprisonment.

¶ 166. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. COUNT II: CONVICTION OF KIDNAPING AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. COUNT III: CONVICTION OF RAPE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

PITTMAN, C.J., WALLER, COBB, EASLEY and CARLSON, JJ., CONCUR. McRAE, P.J., CONCURS IN PART. DIAZ, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., and GRAVES, J. DIAZ, J., concurring in part and dissenting in part:

¶ 167. At the outset, I would like to make clear that I agree with the majority's decision to affirm Simmons's conviction and the trial court's findings at the guilt phase of the trial. However, I believe the trial court committed reversible error when it refused to allow the video tape into evidence at the sentencing hearing as a mitigating factor. Additionally, I believe that the trial court should have allowed Lori Simmons to fully testify at the sentencing hearing when questioned by the defense. Therefore, I respectfully dissent.

¶ 168. Under Issue XIV, the majority points out that several times during the trial and sentencing phase, Simmons tried to introduce a videotape into evidence. Simmons recorded the videotape in Mobile, Alabama, hours after the killing. The recording is approximately 35–40 minutes long and simply shows him speaking to the camera, essentially addressing his ex-wife, Lori, and his two children. Much of what Simmons says in the video covers his feelings for them and instructions on what to do with his property after he turns himself in to the authorities.

¶ 169. However, Simmons makes several statements like, “I didn't think until after it was done. I can't make it undone. I would have. Oh God, I would have.” He also makes a comment similar to “I don't know how it happened and afterward, I would have given anything to take it back, even my life.” He also said things like, “It got out of hand and it wasn't supposed to go like this.” These statements are peppered throughout the tape while he is constantly speaking to his family about how much he loves them. He also accepts responsibility for his actions. Simmons never directly admits that he killed anyone, but the insinuation is there in much of what he says.

¶ 170. During the closing arguments of the trial, the prosecution stated that Simmons had not shown any remorse for his crimes other than being upset that Leaser escaped from the box. During the sentencing phase, the prosecution made further statements to the effect that Simmons did not have a conscience.

¶ 171. Simmons argues that it should have been allowed into evidence during the sentencing phase of the trial. Although inadmissible at trial, Simmons argues that it would have rebutted the statements made by the prosecution concerning his lack of remorse or conscience. In McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), the Court held that a defendant is entitled to have the jury in a capital sentencing phase consider any relevant circumstance that could cause it to decline to impose the death penalty.

¶ 172. The United States Supreme Court has held that prejudice can be acute during the sentencing phase, when the jury must “attempt to know the heart and mind of the offender and judge his character, his contrition or its absence, and his future dangerousness. In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies.” Riggins v. Nevada, 504 U.S. 127, 144, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). Additionally, Mississippi allows evidence of mitigating circumstance of an unlimited nature. Mackbee v. State, 575 So.2d 16, 39 (Miss.1990) (citing Leatherwood v. State, 435 So.2d 645, 650 (Miss.1983)). Accord, Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1(1986) (holding that exclusion during sentencing hearing of testimony that defendant had made a good adjustment during his time in jail denied defendant the right to introduce relevant mitigating evidence); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (constitutional demand for individualized consideration means that a sentencer cannot exclude as a matter of law any relevant mitigating evidence).

¶ 173. The majority discusses, at length, that the videotape is inadmissible hearsay, and I agree completely, as it pertains to the guilt phase. However, every case cited by the majority, including the “strikingly similar” Nicholson ex rel. Gollott v. State, 672 So.2d 744 (Miss.1996), deals with the admissibility of evidence at trial, during the guilt phase. The error before us lies in the exclusion of the videotape during the sentencing phase of the trial. The sentencing phase carries with it entirely different standards and considerations. See Skipper, 476 U.S. 1, 4–8, 106 S.Ct. 1669, 90 L.Ed.2d 1; Eddings, 455 U.S. at 110–12, 102 S.Ct. 869; Mackbee, 575 So.2d at 39. Furthermore, none of the cited authority relied upon by the majority concerns a possible death sentence.

¶ 174. After reviewing the tape, some of the statements can be interpreted as remorseful and thus mitigating in the eyes of the jury. Certainly, they appear to rebut the prosecution's claim that he showed no remorse whatsoever. Accordingly, I would find that it was reversible error for the trial court to exclude this videotape as mitigating evidence during the sentencing phase of the trial and would, therefore, vacate Simmons' death sentence and remand the matter to the trial court for a new sentencing hearing.

¶ 175. Under Issue XVII, the majority finds that the trial court did not commit reversible error when it prevented Lori Simmons, Simmons's ex-wife, to testify fully. FN10. BY DEFENSE COUNSEL BARTON: Lori, do you know what might have caused the events leading up to what happened on August the 13, 1996? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: To that I'm going to have to object. That's just too much speculation. We have tried to be as reserved on objections as we possible can. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: When you heard that Gary had been charged with this crime, did you believe that this was the same Gary that you had been married to all those years? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: That's been asked and answered, Your Honor, earlier on when he asked her virtually the same question. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: Does he [Simmons] love [his daughters] Heather and Felicia? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Objection, Your Honor. Calls for speculation. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: Lori, would you like to see that type of continuing relationship, as bad as it may be, exist between you, Felicia, Heather and Gary? BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Objection, Your Honor. That's impact on family members. We object to it. BY THE COURT: Objection sustained. * * * * * * BY DEFENSE COUNSEL BARTON: But you still would like the father of your children— BY ASSISTANT DISTRICT ATTORNEY SAUCIER: Objection, Your Honor. That's an impact question. BY THE COURT: Objection sustained.

¶ 176. Criminal defendants are entitled to heightened protection such as the Eighth Amendment right to allow all mitigating evidence at the sentencing stage. The U.S. Supreme Court has reiterated that the Eighth Amendment imposes special limitations when the death penalty is imposed. Payne v. Tennessee, 501 U.S. 808, 856, 111 S.Ct. 2597, 2625–26, 115 L.Ed.2d 720 (1991). Among those limitations, the high Court noted that “[s]tates cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant,” and that mitigating factors must be allowed in an effort to treat defendants as “uniquely individual human beings.” Payne, 501 U.S. at 822–24, 111 S.Ct. at 2606–08 (quoting McCleskey v. Kemp, 481 U.S. 279, 305–06, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987)). Lori was not allowed to fully testify as the above-quoted passages from the transcript clearly reveal. The trial judge erroneously cut off Lori's testimony on several avenues. The better course of action would have been to allow her to fully answer the questions posed by defense counsel at the sentencing hearing. Therefore, I would also reverse the trial court on this issue and remand this case for a new sentencing hearing.

McRAE, P.J., and GRAVES, J., JOIN THIS OPINION.

Simmons v. State, 869 So.2d 995 (Miss. 2004). (PCR)

Background: Defendant was convicted in the Circuit Court, Jackson County, Bill Jones, J., of capital murder, rape, and kidnaping, and was sentenced to death and two consecutive terms of life imprisonment. Defendant appealed. The Supreme Court, 805 So.2d 452, affirmed. Defendant filed motion for leave to seek post-conviction relief.

Holdings: The Supreme Court, En Banc, Smith, P.J., held that: (1) defendant was not entitled to psychological expert at sentencing; (2) defendant failed to establish ineffective assistance of trial counsel; (3) death sentence was not disproportionate to defendant's involvement as an aider and abettor to murder; and (4) aggravating factors used to sentence defendant to death for murder were not constitutionally required to be specified in indictment. Motion denied.

EN BANC. SMITH, Presiding Justice, for the Court.

¶ 1. Gary Carl Simmons, Jr., was convicted of capital murder and sentenced to death for the murder of Jeffery Wolfe. Simmons was also convicted of the rape and kidnaping of Wolfe's female companion. On direct appeal Simmons raised twenty-seven issues. This Court found those issues to be without merit and affirmed Simmons's conviction and death sentence. See Simmons v. State, 805 So.2d 452 (Miss.2001), cert. denied, 537 U.S. 833, 123 S.Ct. 142, 154 L.Ed.2d 51 (2002).

¶ 2. Simmons subsequently filed his Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, Supplement/Amendment to Petition for Post-Conviction Relief, Correction to Supplement/Amendment, and Supplemental Authority with this Court. The State has filed its Response, and Simmons has filed his Reply Brief.

¶ 3. Simmons's Petition for Post-Conviction Relief raises the following issues:

I. PETITIONER WAS UNFAIRLY DENIED BY THE TRIAL COURT OF HIS RIGHT TO PRESENT TO THE TRIAL JURY A VIDEOTAPE HE HAD MADE WITHIN HOURS AFTER THE OFFENSE IN WHICH HE HAD EXPRESSED REMORSE, HUMANITY AND DEMEANOR PARTICULARLY AT THE PENALTY PHASE, IN VIOLATION OF ESTABLISHED FEDERAL AND STATE CASE LAW.

II. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND v. WASHINGTON.

A. Trial Counsel's Inadequate Investigation and Presentation of Mitigation Factors at the Penalty Phase.

B. DNA Evidence.

C. Cumulative Effect of Counsel's Failure to Make Contemporaneous Objections to Damaging Testimony, the Result of Which was Ineffective Assistance of Counsel Within the Meaning of Strickland v. Washington.

III. SIMMONS WAS DENIED THE EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL AND THE FAILURE OF THE TRIAL COURT TO INQUIRE INTO THE CONFLICT VIOLATED HIS FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AND CORRESPONDING PROVISIONS OF THE MISSISSIPPI CONSTITUTION.

IV. THE MITIGATION TESTIMONY OF LORI SIMMONS, EX-WIFE OF THE PETITIONER, WAS UNFAIRLY LIMITED BY THE TRIAL COURT AND AS A RESULT SIMMONS WAS DENIED HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO CALL WITNESSES TO TESTIFY ON HIS BEHALF.

V. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.

VI. THE PETITIONER'S MOTIONS FOR A CONTINUANCE SHOULD HAVE BEEN GRANTED AND THE FAILURE TO DO SO WAS REVERSIBLE ERROR.

VII. THE SENTENCE RENDERED AGAINST PETITIONER GARY CARL SIMMONS IS DISPROPORTIONATE TO THAT OF HIS CO- DEFENDANT, THE PERSON WHO SHOT AND KILLED JEFFERY WOLFE, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING PORTIONS OF THE MISSISSIPPI CONSTITUTION.

VIII. PETITIONER WAS DENIED HIS RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL TRIAL.

¶ 4. Simmons's Supplement/Amendment to Petition raises the following supplemental issues:

IX. THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE WERE NOT INCLUDED IN SIMMONS' INDICTMENT AND THEREFORE HIS DEATH PENALTY MUST BE VACATED.

A. In Ring v. Arizona, the U.S. Supreme Court held that aggravating circumstances function as elements of the offense of capital murder.

B. In its requirement that at least one aggravating circumstance be found before the death penalty can be imposed, Mississippi's capital sentencing scheme is indistinguishable from the Arizona scheme rejected in Ring.

C. Capital murder may be charged only upon an indictment alleging all of the elements of the crime to be proved.

X. THE TRIAL COURT ERRED IN CHARGING THE TRIAL JURY WITH STATE REQUESTED INSTRUCTION S-11 AS THE SAME IS AN INCORRECT STATEMENT OF THE LAW OF THE STATE AND AS A RESULT SIMMONS WAS UNFAIRLY PREJUDICED AND DENIED A FUNDAMENTALLY FAIR TRIAL.

¶ 5. The State has moved to strike the issues raised in the Supplement/Amendment, saying they could have been raised earlier. We deny the motion to strike, as this Court granted Simmons time to supplement his initial Petition for Post-Conviction Relief, and the Supplement/Amendment was filed as a result.

FACTS

¶ 6. Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County, Mississippi, in August 1996 to collect money owed Wolfe from a drug transaction. Wolfe and Leaser met with Gary Simmons and Timothy Milano at Simmons's house on the evening of August 12. Initially the men discussed the money owed to Wolfe, but after failing to resolve the matter Milano shot Wolfe with a .22 caliber rifle. Simmons then bound Leaser and locked her in a metal box. Leaser tried repeatedly to escape from the box, and on one occasion Simmons heard her attempting to escape, removed her from the box and raped her. He then returned her to the box. Simmons then dismembered Wolfe's body and dumped the various body parts in the bayou behind his house. Leaser eventually escaped and convinced a neighbor to call the police.

DISCUSSION
I. EXCLUSION OF A VIDEOTAPE.

¶ 7. Simmons made a videotape of himself after the murder of Wolfe and sent it to his wife, who in turn delivered it to his lawyer. The videotape was eventually produced to the State. Simmons did not testify at trial but attempted to introduce the videotape. The trial court excluded the videotape, and Simmons raised this as error on direct appeal. This Court found that the videotape inadmissible because it was hearsay and not relevant. Simmons, 805 So.2d at 488. Three members of the Court acknowledged that the videotape was properly excluded in the guilt phase of the trial, but found that it should have been admitted during the sentencing phase as part of Simmons's mitigating evidence. Simmons, 805 So.2d at 508 -11 (Diaz, J., concurring in part and dissenting in part).

¶ 8. Simmons argues that it was error for the trial court to exclude the videotape during the sentencing phase because (1) it showed remorse by Simmons and would have rebutted the prosecution's argument during sentencing that Simmons showed no remorse and (2) the admission of evidence should be relaxed during the sentencing hearing.

¶ 9. The State argues that Simmons's argument is barred under Miss.Code Ann. § 99-39-21, which provides in part: (1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver. (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice. (3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

¶ 10. We agree and hold that Simmons's argument is barred by res judicata.

II. EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 11. This Court has stated the following on ineffective assistance of counsel and the standard provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 466 U.S. 668, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id. Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ Stringer, 454 So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Defense counsel is presumed competent. Id. Then, to determine the second prong of prejudice to the defense, the standard is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). This means a “probability sufficient to undermine the confidence in the outcome.” Id. The question here is: whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068. There is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991). Davis v. State, 743 So.2d 326, 334 (Miss.1999) (citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996)). Brown v. State, 798 So.2d 481, 493-94 (Miss.2001).

A. Trial Counsel's Investigation and Presentation of Mitigation Factors at the Penalty Phase.

¶ 12. Simmons called the following witnesses in his sentencing hearing: Jewell Simmons, his paternal grandmother; Milton Dupuis, his half-brother; Dana Vanzante, a friend; Lynette Holmes, a friend of Simmons's ex-wife, Lori; Belinda West, Simmons's half-sister; and Lori Simmons, Simmons's ex-wife. The witnesses testified that Simmons was a good person, a loving husband and father to his two daughters, and he was a different person from the one portrayed at trial. Milton Dupuis testified that his father, Gary's stepfather, beat them “every day just about,” and Gary got the worst of it because he was the oldest. Dupuis testified that his father also beat their mother and once when Gary tried to defend her, the stepfather shot at him. Dupuis stated that Gary led him to have a religious conversion, but when Gary and Lori divorced, Gary started making bad decisions. There was also testimony that Gary had been barred from residing in the house with Lori's two older children from another marriage, but the reasons given for this were not clear. Simmons argues that his counsel was ineffective for failure to adequately investigate his background and family and to procure a professional expert to evaluate this information for the jury.

¶ 13. Simmons cites Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), where the United States Supreme Court found that counsel had been ineffective at the sentencing phase of trial because of counsel's failure to investigate and uncover proof of Williams's tragic childhood because counsel thought that state law barred access to certain relevant records. The Court said counsel could have discovered that Williams's parents had been imprisoned for criminal neglect of their children, that Williams had been beaten by his father, that Williams had spent time in an abusive foster home, that Williams was borderline mentally retarded and did not advance past the sixth grade in school, and that Williams had helped authorities during his stay in prison.

¶ 14. Simmons also cites Jackson v. Calderon, 211 F.3d 1148 (9th Cir.2000), where Jackson's attorney was found to have been ineffective in the sentencing phase for spending about two hours investigating in preparation for sentencing and calling only Jackson's estranged wife and mother as witnesses. In invalidating the death sentence, the Ninth Circuit stated that Jackson's attorney never investigated beyond the mother and wife because he never expected the case to reach the sentencing phase, and he never investigated or presented evidence concerning Jackson's addiction to PCP or his PCP intoxication at the time of the murder, never investigated a separate aggravating factor, and never investigated beatings Jackson had endured as a child or signs that Jackson was mentally ill. See also Smith v. Stewart, 140 F.3d 1263 (9th Cir.1998) (death sentence vacated where counsel presented no mitigating evidence when evidence concerning mental problems, drug abuse and family ties was available).

¶ 15. Simmons cites Castro v. Oklahoma, 71 F.3d 1502 (10th Cir.1995), which is not an ineffective assistance of counsel case. Castro deals with whether the trial court erred in refusing to provide funds for a psychiatric expert for Castro's defense.

¶ 16. Simmons finally cites Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), where the United States Supreme Court found that Wiggins received ineffective assistance of counsel because his trial counsel had failed to investigate and present mitigating evidence of Wiggins's background, including physical and sexual abuse committed by his mother, by a series of foster parents, and a Job Corps supervisor, as well as evidence of mental retardation. Counsel for Wiggins failed to make this investigation even though the State made funds available for this purpose. Trial counsel instead attempted to show that Wiggins was not responsible for the murder in question. The Supreme Court stated: In finding that Schlaich and Nethercott's investigation did not meet Strickland's performance standards, we emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the “constitutionally protected independence of counsel” at the heart of Strickland, 466 U.S., at 689, 104 S.Ct. 2052. We base our conclusion on the much more limited principle that “strategic choices made after less than complete investigation are reasonable” only to the extent that “reasonable professional judgments support the limitations on investigation.” Id., at 690-691, 104 S.Ct. 2052. A decision not to investigate thus “must be directly assessed for reasonableness in all the circumstances.” Id., at 691, 104 S.Ct. 2052.

Counsel's investigation into Wiggins' background did not reflect reasonable professional judgment. Their decision to end their investigation when they did was neither consistent with the professional standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the social services records-evidence that would have led a reasonably competent attorney to investigate further. Counsel's pursuit of bifurcation until the eve of sentencing and their partial presentation of a mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned strategic judgment. In deferring to counsel's decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland. Furthermore, the court partially relied on an erroneous factual assumption. The requirements for habeas relief established by 28 U.S.C. §§ 2254(d) are thus satisfied. Wiggins, 539 U.S. at ---- - ----, 123 S.Ct. at 2541-42.

¶ 17. The State argues that Simmons's counsel was not ineffective for failure to procure a psychological or mitigation expert because he was not entitled to one. The State cites Bishop v. State, 812 So.2d 934, 939-40 (Miss.2002), where this Court stated: A defendant is not entitled to a psychological expert where he has not raised insanity as a defense or where the State does not plan to submit psychological evidence against the defendant. Ladner v. State, 584 So.2d 743, 757 (Miss.1991); Nixon v. State, 533 So.2d 1078, 1096 (Miss.1987). As we have stated, “[w]here a defendant offers no more ‘than undeveloped assertions that the requested assistance would be beneficial,’ no trial court is under an obligation to provide him with fishing equipment.” Griffin v. State, 557 So.2d 542, 550 (Miss.1990) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985)). Bishop did not raise an insanity defense; he offered no facts which would show that there was a need to develop mitigating evidence based on psychological problems; and he underwent a thorough psychological evaluation performed at the State Hospital which produced no mitigating evidence. We therefore find that Bishop was not entitled to a psychological expert for the purpose of developing mitigating evidence. In this case Simmons did not raise an insanity defense. His mental condition was not an issue in this case.

¶ 18. In addition, Simmons offers no evidence now which supports his claim that his trial counsel should have investigated more thoroughly, or in certain areas, even under the authority he cites. Simmons offers nothing in support from mental health experts who can now say what an investigation of Simmons or his family background would have shown, or what such experts would now be willing to testify to. Simmons offers nothing from his trial attorney on how much time he spent preparing for the sentencing phase and why he did not feel the need to offer more or different evidence on mitigation. In Wiggins v. Smith, Jackson v. Calderon, and Williams v. Taylor refer to potential mitigation evidence contained in school records, hospital records, prison records and expert findings. Here Simmons presents the affidavits of an investigator from the Office of Capital Post-Conviction Counsel, who interviewed Simmons's grandmother and sister, Jewel and Belinda Simmons. The first affidavit states that Jewel Simmons loved Gary and was upset with the verdict. The affidavit further states that Gary's father refused to talk to the investigator and that Jewel would not sign an affidavit because of Gary's father. Gary's mother, Mildred, never attended the trial because she was embarrassed. Mildred had a gambling problem which caused hardship for the family. Mildred remarried when Gary was three, and Gary's stepfather was very abusive. The investigator's other affidavit describes an attempt to interview Gary's ex-wife, Lori, who, according to the investigator, did not want to answer questions about Gary. The State argues that the affidavits are primarily hearsay, and we agree. In addition some of what is contained in the affidavits was presented at trial.

¶ 19. In conclusion we find that, Simmons has not submitted sufficient evidence of a breach of the duty of counsel to investigate and present mitigation evidence as described by the United States Supreme Court in Wiggins v. Smith.

¶ 20. Simmons also argues that trial counsel was ineffective for failure to interview the State's witnesses, particularly Charlene Brooke Leaser, before trial, and for failure to cross-examine Leaser on her previous guilty pleas in Texas state court to DUI and credit card abuse, and revocation of probation on credit card abuse. The State argues that impeachment would have been permissible only on the credit card issue. The State also argues that it could have been trial strategy not to cross-examine this young rape victim any more vigorously considering what she had allegedly suffered.

¶ 21. We find nothing in this record to indicate whether defense counsel interviewed Leaser. As for the impeachment Simmons suggests, we doubt that it would have been significant considering that (1) the State's DNA testimony supported Leaser's testimony and (2) Simmons did not testify, so there was no testimony to contradict Leaser's version of the events surrounding Jeffery Wolfe's death. We hold that this issue is without merit.

B. DNA Evidence.

¶ 22. Simmons next argues that his trial counsel was ineffective for failure to adequately prepare for the examination of Deborah Haller, the State Crime Lab's DNA expert. Simmons states that his counsel should have begun the process of procuring funds and finding a DNA expert “at least three months prior to the production of the State's DNA report that they were doing DNA testing,” or at least three months prior to July 23, 1997, because counsel for Simmons allegedly knew at this time that the State was doing DNA testing. This is the argument that the State made at trial and on direct appeal in response to Simmons's request for continuance. See Simmons, 805 So.2d at 484. The State argued at trial and on direct appeal that counsel for Simmons was at fault for not timely finding a DNA expert. Here, Simmons adopts the State's trial and direct appeal argument. The State, faced with its arguments made at trial and on direct appeal concerning defense counsel's lack of competence, now states, “It is unclear what more trial counsel could have done.”

¶ 23. Deborah Haller, the State's DNA expert, testified concerning blood found in a bucket near a boat used by Simmons, muscle tissue found in the bathroom in Simmons's home, a bush hook, and a knife collected from the bathroom of Simmons's home. As to these items Haller testified that the probability of the blood belonging to someone besides Jeffery Wolfe was one in 390,000 in the Caucasian population. Haller also testified that the DNA material found on a condom collected from a wastebasket in Simmons's bathroom was consistent with that of Simmons and Charlene Leaser.

¶ 24. This testimony was critical on the matter of Simmons's participation in the case. It also supported Leaser's testimony that Simmons had raped her. The State argues that this issue is in part a restatement of issues raised on direct appeal concerning whether the trial court erred in admitting Haller's testimony and whether the trial court erred in refusing to grant a continuance to Simmons so that his expert could have more time to review the DNA evidence. The State also argues that defense counsel's conduct was not deficient and that Simmons did not at trial and does not here proffer any evidence which would show that Haller's testimony was incorrect or flawed in any way.

¶ 25. We agree with the State's last argument. Even if one conceded that the first prong of the Strickland v. Washington test, that of deficient conduct by defense counsel, was met here, there is still the matter of prejudice. Simmons has produced nothing, even at this time, from Dr. Ron Acton, Simmons's DNA expert at trial, or anyone else, which calls into question the accuracy of the results testified to by the State's DNA expert. Without such evidence prejudice cannot be shown, and this issue is without merit.

C. Cumulative Effect of Counsel's Failure to Make Contemporaneous Objections.

¶ 26. Simmons next argues that the failure of his trial counsel to make contemporaneous objections on numerous occasions amounted, in a cumulative manner, to ineffective assistance of counsel. The State argues that this Court noted all of these instances in its opinion, including the fact that no contemporaneous objection had been made by the defense, and reached the merits of each argument regardless, finding that none of the claims amounted to error. The State argues that because this Court considered each of these instances on the merits and found that there was no error, then a claim for ineffective assistance of counsel can not be supported because the prejudice prong of the Strickland test cannot be met. We agree and hold that this issue is without merit.

III. EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL.

¶ 27. Simmons next argues that he was denied effective assistance of counsel because his trial counsel, Harvey Barton, had before the trial represented a state witness, Dennis Guess, and represented Guess's father at the time of Simmons's trial. Simmons argues that this amounted to a conflict of interest and the trial judge should have declared a mistrial.

¶ 28. This issue was raised by Simmons on direct appeal. This Court found that there was “no evidence in the record to suggest that defense counsel acted in some manner other than capable.” Simmons, 805 So.2d at 480. The issue is barred by res judicata pursuant to Miss.Code Ann. § 99-39-21(3).

IV. MITIGATION TESTIMONY OF LORI SIMMONS.

¶ 29. Simmons next argues that “his ex-wife, Lori Simmons, was not permitted to fully testify as to matters pertaining to mitigation factors offered by him at the sentencing phase of the proceeding. Numerous times the State objected to responses to defense questions during her examination at trial. Simmons alleges that the adverse rulings by the trial court violated his fundamental right to call witnesses on his behalf.”

¶ 30. This issue was presented to this Court on direct appeal. The Court found that “the trial judge may have initially erred in sustaining the State's objections to several questions posed to Lori, in fact, subsequently, she was allowed to respond and fully explore the issues posed by the previous denied questions,” and any error was harmless. Simmons, 805 So.2d at 498.

¶ 31. The State argues that Simmons is barred by res judicata from raising this issue now, as it was decided on direct appeal. Simmons provides no exception to this rule. Simmons does attach an affidavit from an employee of the Office of Capital Post-Conviction Counsel, which states that the employee attempted to contact Lori Simmons, who declined to answer any questions about the case. That Lori Simmons refuses to answer questions now about the case is not relevant on the question of whether Gary Simmons received a fair trial. We hold that this issue is without merit.

V. AGGRAVATING CIRCUMSTANCE THAT SIMMONS KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.

¶ 32. At trial the jury found two aggravating circumstances: one was that the capital offense was committed for pecuniary gain, and the second was that “the defendant knowingly created a great risk of death to many people.” On direct appeal Simmons argued that the second aggravator was supported by insufficient evidence. This Court found “that the evidence regarding Simmons' disposal of Wolfe's remains into the bayou constituted knowingly creating a great risk to many people. There is no reversible error here.” Simmons, 805 So.2d at 497.

¶ 33. Simmons now makes the same argument on post-conviction, that “the prosecution failed to introduce adequate and sufficient evidence to convince a jury beyond a reasonable doubt that petitioner had knowingly created a great risk to many persons as a matter of law.” We hold that this issue is barred by res judicata.

¶ 34. Simmons also argues that “[i]t should not matter either, if a defendant fails to object to any such charge or erroneous instruction as under the recent case of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Sixth Amendment requires that any finding of fact that makes a defendant eligible for the death penalty must be unanimously made by the jury beyond a reasonable doubt.” Though the record is not clear whether defense counsel objected or not, this is irrelevant, as this Court considered the merits of the argument and found there was no error. Even if Ring did apply, the jury did find the aggravating circumstance in question beyond a reasonable doubt.

¶ 35. Simmons argues that this Court's finding on direct appeal that one scenario, the repeated firing of a rifle in a residential neighborhood, did not sufficiently support the aggravator in question, but that placing Jeffery Wolfe's remains in community waters did support the aggravator, amounts to appellate fact-finding or reweighing. We disagree. This Court reviewed the entire record on direct appeal and found that the aggravating circumstance in question was supported by certain evidence. We hold that this issue is without merit.

VI. MOTIONS FOR A CONTINUANCE.

¶ 36. Simmons next argues that the trial court erred in failing to grant a continuance due to the State's intention to offer DNA evidence in support of its case and Simmons's resulting attempt to rebut this evidence. This issue was raised on direct appeal. This Court found that Simmons had not shown sufficient evidence, in a timely manner, to support the granting of a continuance. Simmons, 805 So.2d at 484-85. The State answers that as this issue was raised and rejected on direct appeal, it is barred by res judicata here. Simmons provides no reason that an exception to the bar should be considered. We hold that this issue is without merit.

VII. PROPORTIONALITY OF DEATH SENTENCE.

¶ 37. Simmons next argues that his death sentence is disproportionate because Timothy Milano, not Simmons, actually fired the shots that killed Jeffery Wolfe. Milano received a life sentence. Simmons argues that this disparity in sentences is unfair, and also argues that there is no evidence that Simmons was a leader, planner and/or instigator of the killing. This issue was also raised on direct appeal. This Court rejected this issue, noting that the jury had found that Simmons intended Wolfe's death and contemplated that lethal force would be used, that the death penalty had been affirmed for others who had not done the actual killing and that ample evidence showed that Simmons actively planned and participated in the robbery and murder. Simmons, 805 So.2d at 507.

¶ 38. Simmons cites Bishop v. State, 812 So.2d 934 (Miss.2002), where Bishop was not the primary killer. The State argues that Bishop is more supportive of its argument, as Bishop received the death penalty while Jessie Wayne Johnson, who inflicted the lethal blows in that case, received life without parole. We agree with the State. The Court has also found the death penalty not to be disproportionate for an aider and abetter who is not the actual killer in several other cases. Smith v. State, 729 So.2d 1191 (Miss.1998); Ballenger v. State, 667 So.2d 1242 (Miss.1996); Carr v. State, 655 So.2d 824 (Miss.1995); Abram v. State, 606 So.2d 1015 (Miss.1992); Leatherwood v. State, 435 So.2d 645 (Miss.1983).

¶ 39. Simmons also cites Randall v. State, 806 So.2d 185 (Miss.2001), where this Court found that, where there was no proof as to who actually killed the victim, and the other co-defendants received sentences of less than death, and the jury only found that Randall contemplated that lethal force would be used and nothing else, then the death sentence was disproportionate. While Simmons's case does have similarities to Randall, the case at bar, as this Court noted on direct appeal, the jury found that Simmons intended the killing of Jeffery Wolfe to take place, in addition to finding that Simmons contemplated that lethal force would be employed. This Court specifically found that under these circumstances the death penalty was not disproportionate.

¶ 40. Simmons also cites Bullock v. State, 525 So.2d 764 (Miss.1987), and Duplantis v. State, 644 So.2d 1235 (Miss.1994). In Bullock, this Court rendered a sentence of life imprisonment where Bullock's co- defendant actually killed the victim and received a life sentence. In Duplantis this Court reversed a murder conviction and death sentence on other grounds and intimated that the State's proof might have been insufficient on the issue of proportionality in the first trial. We find neither case to be controlling here.

¶ 41. Simmons also cites as intervening cases 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 Supreme Court held in Ring that only a jury may find an aggravating circumstance necessary for the imposition of the death penalty. The Supreme Court held in Apprendi that any fact, other than a previous conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Neither case changes or expands the law on proportionality. The issue was dealt with on direct appeal, and we hold that it is barred by res judicata at the post-conviction level.

VIII. CUMULATIVE ERROR.

¶ 42. Simmons next argues that even if none of the alleged errors, cited individually, may be basis for relief, the cumulative effect of all the errors viewed together mean that Simmons is entitled to relief. Simmons raised the cumulative error issue on direct appeal. The Court found the argument was without merit: Simmons's final assertion of error is that each of the above enumerated errors, when taken together, warrant reversal as cumulative error. Simmons cites Hickson v. State, as authority for this proposition when this Court held that reversal was warranted by their perception of a combined prejudicial impact of two actions taken by the State that substantially compromised Hickson's right to a fair trial. Hickson v. State, 472 So.2d 379, 385 (Miss.1985). The State counters with a quote from Doss v. State, which reads “[w]here there is no reversible error in any part, .... there is no reversible error to the whole.” Doss v. State, 709 So.2d 369, 401 (Miss.1996). Additionally, this Court has held that a murder conviction or a death sentence will not warrant reversal where the cumulative effect of alleged errors, if any, was procedurally barred. Doss, 709 So.2d at 401. Cumulatively, these errors do not warrant reversal. Simmons, 805 So.2d at 508. Even with the additional arguments made here that were not made on direct appeal, we hold that this issue is without merit.

IX. OMISSION OF THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE FROM INDICTMENT.
A. Ring v. Arizona.

¶ 43. Simmons argues that his indictment is unconstitutional for failure to include and specify the aggravating factors used to sentence him to death. This issue was not raised at trial or on direct appeal and normally would be procedurally barred. However, Simmons primarily relies on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), as intervening decisions which would nullify the procedural bar.

¶ 44. In Jones v. United States the United States Supreme Court considered a federal carjacking statute. The Supreme Court found in Jones that the carjacking statute, which allowed three different punishments increasing in severity depending on the degree of violence used or physical harm accomplished by the carjacker, could result in three distinct offenses, all of which had to be charged in the carjacker's indictment: [U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215 (emphasis added).

¶ 45. Jones was followed by Apprendi. Apprendi fired several shots into the home of an African-American family in Vineland, New Jersey. Apprendi was indicted on numerous state charges of shooting and possession of firearms. He eventually pled guilty to two counts of possession of a firearm for unlawful purpose and one count of possession of an explosive. After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on one of the counts on the basis that it was a hate crime. The judge concurred and rendered an enhanced sentence on twelve years on that particular count, with shorter concurrent sentences on the other two counts.

¶ 46. Relying in part on Jones, Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The Supreme Court agreed, stating: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. However, the Court specifically stated that “Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question separately today.” Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348.

¶ 47. The Court found in Apprendi that New Jersey's statutory scheme would allow a jury to convict a defendant of a second degree offense of possession of a prohibited weapon, and then, in a separate subsequent proceeding, allow a judge to impose a punishment usually reserved for first degree crimes made on the judge's finding based on a preponderance of the evidence. The Apprendi Court finally stated that its decision did not apply to capital sentencing cases, even those cases where the judge was the one deciding whether to sentence the defendant to death or some lesser sentence, citing Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511(1990), where the Arizona capital sentencing process had been upheld.

¶ 48. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue of whether the Arizona capital sentencing process as upheld in 1990 in Walton v. Arizona, that of a jury deciding guilt and a judge making findings on aggravating factors, could survive the Apprendi decision. The Supreme Court decided it could not. Despite the efforts in Apprendi to distinguish non-capital enhancement cases from aggravating circumstances in capital cases in this context, the Supreme Court in Ring found that there was no difference. [W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona's enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury. * * * “The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.... If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. Ring, 536 U.S. at 609, 122 S.Ct. 2428.

¶ 49. Simmons's argument is that because Ring found the Apprendi decision persuasive on the issue of Arizona's enumerated aggravating factors operating as “the functional equivalent of an element of a greater offense,” the Supreme Court necessarily adopted every other rule stated in Apprendi for state capital sentencing proceedings, specifically the rule first cited in Jones v. United States, that the Constitution requires that aggravating factors be listed in indictments. We find this argument is incorrect. Ring only found juries must find aggravating factors: “Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him....” Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348 (Fourteenth Amendment “has not ... been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury’ ”). Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428.

B. Mississippi's capital sentencing scheme.

¶ 50. Simmons's argues: “Although Mississippi's capital sentencing scheme is not identical in all respects to the Arizona scheme rejected by the United States Supreme Court in Ring, the two schemes are identical in the respects relevant to this case.” This is incorrect. The two sentencing schemes are different in the only respect relevant to Ring, that of who finds aggravating circumstances that lead to the death sentence. Under Arizona's scheme, the judge did this, and for this reason Arizona's scheme was found to be unconstitutional. Under this state's statutory scheme, and in Simmons's case the jury found the aggravating circumstances. We hold that there is no infirmity under Ring. C. Indictment alleging all of the elements of the crime to be proved.

¶ 51. Simmons sums up his argument concerning the alleged problems with his indictment by repeating it here. Simmons cites United States v. Fell, 217 F.Supp.2d 469 (D.Vt.2002), and United States v. Lentz, 225 F.Supp.2d 672 (E.D.Va.2002). In Fell, 217 F.Supp.2d at 483, the court found the following: “Although the Ring decision explicitly did not discuss whether a defendant was entitled to grand jury indictment on the facts that, if proven, would justify a sentence of death, see Ring, 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4, the clear implication of the decision, resting as squarely as it does on Jones, is that in a federal capital case the Fifth Amendment right to a grand jury indictment will apply.” This is not a federal capital case, and there is nothing to show that this Fifth Amendment right is applicable to a state capital case. Lentz makes the same finding, but once again deals with the Federal Death Penalty Act, or FDPA.

¶ 52. Simmons also relies on the United States Supreme Court decision of Allen v. United States, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). In a memorandum decision, the Supreme Court stated the following: “The judgment [in Allen] is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).”

¶ 53. One issue raised in Allen was the issue Simmons raises here, that of his indictment being defective because it did not contain the aggravating factors. The Eighth Circuit in Allen found that Allen's indictment was not defective even though it did not contain the aggravating factors. If this is the basis on which Allen is being reversed, it seems odd to cite Ring v. Arizona to do it. The question of what an indictment must contain in a state capital case was not before the Ring court. In Apprendi v. New Jersey, the Supreme Court stated that the Fifth Amendment right to indictment had never been applied to the states through the Fourteenth Amendment. Absent more explicit direction, we find that the Supreme Court has not ruled that state capital defendants have a constitutional right to have all aggravating circumstances listed in their indictments. We find that this issue is without merit.

X. INSTRUCTION S-11.

¶ 54. On direct appeal Simmons raised as error the giving of Instruction S-11, which states: The Court instructs the jury that one who willfully, unlawfully, and feloniously aids, abets, assists, or otherwise encourages the commission of a crime is just as guilty under the law as if he or she had committed the whole crime with his or her hand.

¶ 55. This Court found the issue to be without merit as follows: Simmons alleges that the trial court erred in granting State's S-11 which he believes is an incorrect statement of the law. The State urges that this argument should be procedurally barred because defense counsel's objection to S-11 is different on appeal than the one offered at trial. At trial, it appears that defense counsel objected to S-11 on the grounds that it was an “aiding and abetting” instruction, rather than an incorrect statement of the law. The State cites Doss v. State, 709 So.2d 369, 378 (Miss.1996) for the proposition that an objection at trial on one specific ground constitutes a waiver on all other grounds. Simmons believes that this instruction relieved the prosecution of its burden to prove all of the elements of capital murder, robbery, kidnaping and rape. Simmons cites generally Hornburger v. State, 650 So.2d 510, 514 (Miss.1995) and Berry v. State, 728 So.2d 568 (Miss.1999). Both Hornburger and Berry are distinguishable because they involved instructions that told the jury that each person who commits any act that is an element of the crime is guilty as a principle. S-11 simply does not contain the operative language that could be construed as reading that a defendant found guilty of aiding and abetting with respect to one element of the crime is guilty as a principle. When determining whether error lies in the granting or refusal of various instructions, we must consider all the instructions given as a whole. Coleman v. State, 697 So.2d 777, 782 (Miss.1997). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman, 697 So.2d at 782. The jury instructions listing the elements of capital murder (S-4a), robbery (S-3), kidnapping (S-7), and rape (S-8) all carefully lay out the elements of each crime. Additionally, Simmons is guilty as a principal under Miss.Code Ann. §§ 97-1-3 (2000). Thus, we find no error in the giving of this instruction. Simmons, 805 So.2d at 475-76.

¶ 56. Simmons acknowledges this Court's consideration of S-11 on direct appeal, but states here at the post-conviction level that S-11 “causes a more serious, obscure and sinister problem, different and apart from the issue addressed on appeal-it allows the jury an option in regard to the capital murder charge of finding Simmons guilty through a minimal act not rising to the level of the actual commission of the crime.” Simmons further states that “[t]he syntactical and semantic differences in the given aiding and abetting and accessory instructions which may allow for an experienced jurist to differentiate are simply confusing and prone to error when read by a lay juror.” Simmons later adds that S-11, “when viewed within the evidence adduced in trial, unfairly lessened the prosecutor's burden.” The State argues that Simmons is raising the same issue here that he raised on direct appeal, and as such this issue is barred from consideration by res judicata. We agree with the State's argument and hold that the issue is barred due to res judicata.

¶ 57. If Simmons is attempting to raise a new issue here, we hold that the attempt is further barred under Miss.Code Ann. § 99-39-21(1), as this issue could have been raised on direct appeal but was not, and § 99-39-21(3), which states that “the litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and prejudice.”

¶ 58. Simmons finally argues that in the direct appeal of his co-defendant, Timothy Milano, this Court was compelled to announce that the jury instruction at issue in Berry and Lester v. State, 744 So.2d 757 (Miss.1999), and in this case should no longer be given, and the Court prospectively adopted a Pattern Jury Instruction from the Fifth Circuit. As stated in this Court's opinion in Simmons's direct appeal, S-11 is distinguishable from the instructions found in the other cases cited here. This Court in Milano did not reverse based on the instruction in question, but found that any error was harmless as other instructions provided that all elements of the offenses had to be proved before Milano could be found guilty. Milano v. State, 790 So.2d 179, 185 (Miss.2001). We find that this issue is without merit.

CONCLUSION

¶ 59. After thorough consideration we deny Simmons's Motion for Leave to Proceed in the Trial Court on a Petition for Post-Conviction Relief, as amended and supplemented.

¶ 60. MOTION FOR LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED. PITTMAN, C.J., WALLER, P.J., COBB, EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

Simmons v. Epps, 654 F.3d 526 (5th Cir. Miss. 2011). (Habeas)

Background: State death-row inmate petitioned for federal habeas relief. The United States District Court for the Southern District of Mississippi, Halil S. Ozerden, J., 2008 WL 4446615, denied petition, and inmate appealed.

Holdings: The Court of Appeals held that: (1) evidence that, after shooting of drug dealer in capital murder defendant's home, defendant had used knives that he possessed from his job as butcher to cut up body and throw body parts into neighboring bayou which he knew to be inhabited by alligators, was insufficient to permit submission, as possible aggravating factor for jury at punishment phase of case, that defendant had “knowingly created a great risk of death” to residents of homes neighboring the bayou; (2) erroneous submission of invalid aggravator was harmless, and did not warrant federal habeas relief; and (3) exclusion of proffered mitigating evidence was not objectively unreasonable, nor did exclusion of this evidence render defendant's sentencing fundamentally unfair, so as not to support federal habeas relief. Affirmed. Emilio M. Garza, Circuit Judge, dissented and filed opinion.

PER CURIAM:

Petitioner Gary Carl Simmons Jr. appeals the denial of his petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254. On August 29, 1997, Simmons was convicted of capital murder, rape, and kidnapping in the Circuit Court of Jackson County, Mississippi. After the Mississippi Supreme Court denied relief on direct review, Simmons v. State, 805 So.2d 452 (Miss.2001), and in post-conviction relief proceedings, Simmons v. State, 869 So.2d 995 (Miss.2004), Simmons filed a federal habeas petition in the U.S. District Court for the Southern District of Mississippi, raising fifteen grounds for relief. The district court denied relief on all grounds, but granted a certificate of appealability (“COA”) on one ground. Simmons v. Epps, No. 1:04–CV–00496, 2008 WL 4446615 (S.D.Miss. Sept. 26, 2008). Thereafter this Court granted Simmons a COA on one additional ground and denied it on another. See Simmons v. Epps, 381 Fed.Appx. 339 (5th Cir.2010) (per curiam) (unpublished).

We consider Simmons's habeas petition on two grounds, both of which challenge his death sentence but not his underlying conviction: (1) whether the trial court erroneously allowed the prosecution to submit to the jury an aggravating circumstance without sufficient evidentiary support in violation of the Sixth, Eighth, and Fourteenth Amendments; and (2) whether the trial court erred during the sentencing phase of his trial by excluding relevant mitigating evidence in violation of the Sixth, Eighth, and Fourteenth Amendments. We hold that although the “great risk of death” aggravating circumstance was improperly applied to Simmons, the error is nonetheless harmless. Additionally, we find that the trial court's exclusion of a self-made videotape as mitigating evidence was not objectively unreasonable in light of the clearly established constitutional precedent. Therefore, we affirm the district court's denial of habeas relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the facts of this case are adequately set out in both the Mississippi Supreme Court's opinion affirming Simmons's conviction and sentence, Simmons, 805 So.2d 452, and the district court's opinion, Simmons, 2008 WL 4446615, we discuss only the facts and procedural history directly relevant to this appeal. The murder at issue occurred in Simmons's house early in the morning of August 13, 1996. Jeffrey Wolfe had traveled with his companion, Charlene Leaser, from Houston to Mississippi in order to collect a drug-related debt from Simmons and Timothy Milano, Simmons's ex-brother-in-law. Wolfe and Leaser arrived at Simmons's house late in the evening after Simmons asked Sonny Milano, Timothy's brother, to call Wolfe and ask him to come to the house. Shortly after, Timothy Milano arrived as well. While Simmons and Leaser went into the kitchen to smoke a joint of marijuana, Leaser heard several shots. She saw Wolfe fall to the floor and saw Timothy standing behind him with a gun. Simmons immediately seized Leaser, told her not to look, and brought her into a bedroom where he lay down on top of her. He then questioned her about why they were there, whether she had any drugs, and who knew that they were there. After he finished questioning her, he tied up her hands and feet and placed her in a large metal box.

After Simmons left the room, Leaser managed to free herself from the rope and was attempting to knock the lid off the box. Simmons returned at that point, stripped her of her clothes and jewelry, retied her, and placed her back in the box. When Simmons returned again, he raped her, then retied her and placed her back in the box. Later, after hearing nobody answer the ringing phone, Leaser surmised that nobody else was in the house and managed to force the lid off of the box. She then ran across the street to a neighbor, who called the police. Although Leaser's suitcases were still inside Simmons's house when she reentered with the police, her money was gone.

Shortly after police arrived on the scene and secured a search warrant, they noticed a small boat docked on the bayou behind Simmons's house, and in it, a piece of flesh. They also discovered several buckets, a bushhook, and a knife, all of which had blood on them. Shortly after this discovery, they began collecting body parts from the bayou, a task that took several days. Testimony from trial established that officers and coroner's office officials collected eighty-five pounds of human remains on the first day and forty-one pounds on the second day. Several portions of the body had bullet holes, and Dr. Paul McGarry testified that the body parts had been cut sharply and precisely and the bones separated from flesh. Ultimately, the body parts collected were identified as Wolfe's. At trial, Simmons's co-worker in the meat department of the grocer where they both worked testified that Simmons had taken his butcher's knives home with him on the evening of the murder, which he found unusual.

During both a pre-trial suppression hearing and during the trial, Lee Merrill, an investigator with the Moss Point Police Department who was involved with removing Wolfe's remains from the bayou, testified about the bayou and his collection of the body parts. He testified that although he began finding body parts twenty to thirty feet from where the boat was located, he ultimately found body parts as far as 150 yards away. He further noted that the bayou was approximately eight to nine feet wide and four feet deep, and contained fish and crabs, and that he had seen an alligator once during his time there. He also stated, and the Mississippi Supreme Court later found as fact, that the bayou had a current and ran into a tributary that itself eventually flowed into the Gulf of Mexico. Simmons's neighbor and friend Rita Taylor also testified at trial about the bayou, which she referred to as the “canal,” and the surrounding area. She stated that their neighborhood was “somewhat rural,” and that she had seen alligators in the bayou. Taylor noted that Simmons would “play around with them,” and on one occasion she saw him shoot at one a few times.

At trial, Simmons's friend Dennis Guess also provided crucial testimony. He described returning from work on August 14, the day after the murder, to find Simmons in his house. Guess testified that Simmons told him that he had “whacked a drug dealer” and then had “deboned him, cut him up in little pieces, and put him in the bayou.” Guess noted that Simmons was disappointed because Wolfe only had one thousand dollars on his person, but that Simmons was hoping that he would have much more. After confiding to Guess that he felt his only options were to run, commit suicide, or turn himself in, they decided that Simmons would turn himself in. Simmons then called a Jackson County deputy who picked him up. One issue of contention during the trial and sentencing was a videotape Simmons recorded for his ex-wife, Lori, and his two daughters on the morning of the murder before turning himself in. In the videotape, he expressed remorse without ever referring directly to Wolfe's murder. He made, among others, the following statements: I guess it's a real mess, isn't it? It wasn't supposed to go like that .... Things got pressing in. I was in a bind three or four different ways. To my way of thinking, I didn't have much of a choice. I mean, I'd already taken his money. There's no excuses. .... It's hard sitting here doing this, knowing under what conditions you'll probably be watching it. I'm so dreadfully sorry. .... I didn't think about it until after it was done. And then it couldn't be undone. There was nothing in the world I could do to make it undone. And I would have. Oh, God, I would have. You never realize how close you are to the edge until you actually step over it. .... I don't know how it happened, I really don't. And after it had happened, I would have gave anything to take it back, even my life. After Simmons sent the videotape to Lori, she turned it over to Simmons's attorneys. At trial, the State moved to compel Simmons to turn over the videotape, and the court granted the motion. Simmons attempted to introduce the videotape during both the guilt and sentencing phases of the trial, but the court ruled it inadmissible.

After a trial that lasted most of one week, the jury found Simmons guilty of capital murder, kidnapping, and rape. Simmons received life sentences for the kidnapping and rape, and the trial proceeded to the sentencing phase for capital murder. The court instructed the jury that in order to return the death penalty, it must first find that Simmons either (1) killed Wolfe; (2) attempted to kill Wolfe; (3) intended that the killing of Wolfe take place; or (4) contemplated that lethal force would be employed. If it found one of the four, it must then decide whether one or both of the two aggravating circumstances the State had submitted applied, and if so, weigh the aggravating and mitigating circumstances. The court submitted the following two aggravating circumstances to consider: (1) Simmons “knowingly created a great risk of death to many people”; and (2) “the capital offense was committed for pecuniary gain during the course of a robbery.”

During the sentencing hearing, the State called no witnesses and did not make an opening statement other than to introduce forty-six exhibits from trial, including the tools used to dismember Wolfe. Simmons called six mitigation witnesses, including his ex-wife, his half-brother, and his half-sister. The witnesses generally testified that he was a “family man” who cared deeply for his daughters and often worked several jobs at a time to provide for his family. Further, they noted that the crimes Simmons was charged with were totally out of character for him. Simmons's step-brother also testified that Simmons had a difficult childhood, and that Simmons's step-father beat him almost every day and beat their mother. The jury returned a verdict of death for Simmons. It found that Simmons intended that the killing take place and that lethal force be employed, and that both aggravating circumstances were satisfied and that they outweighed the mitigating circumstances. Simmons filed a motion for a new trial, which was denied.

Simmons appealed his conviction and sentence to the Mississippi Supreme Court, citing twenty-seven different errors by the trial court. The Mississippi Supreme Court denied relief. As to the two issues contested here, the Mississippi Supreme Court found that although Simmons failed to preserve error by objecting to the “great risk of death” aggravating circumstance during sentencing, it was nonetheless obligated to review whether the aggravator was supported by sufficient evidence. Simmons, 805 So.2d at 495–96. The State had abandoned the argument used at trial, namely, that the great risk of death to many people related to Simmons's trapping Leaser in the metal box. Instead, the Mississippi Supreme Court considered whether Simmons had knowingly created a great risk of death to many people because of Milano's firing of a rifle in a residential neighborhood, or because of Simmons's disposal of Wolfe's remains in the bayou. After rejecting the first explanation, the Supreme Court held that the disposal of Wolfe's body satisfied the aggravator because (1) Wolfe's remains created a “toxic mixture” that endangered residents who used the water, and (2) Simmons's disposal of the remains was intended to attract alligators that would endanger “adjoining landowners” and “water enthusiasts.” Id. at 496.

The Mississippi Supreme Court also rejected Simmons's claim that the trial court erred by excluding the videotape from sentencing. It found that the videotape was “both irrelevant, as well as inadmissible, hearsay.” Id. at 488. The Mississippi Supreme Court addressed his argument that the denial of the videotape prevented him from demonstrating his remorse for the crime, explaining that because he was present at trial and decided not to testify, the relevant hearsay exception was unavailable to him. Id. It then noted that admitting a self-serving declaration like the videotape would open the door to abuse, because “an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.” Id. at 489. Three justices, however, issued a dissent on this issue. The dissent distinguished the use of such evidence at sentencing from its use at trial, and noted that the cases relied upon by the majority dealt with hearsay evidence during the guilt phase and not the punishment phase. Id. at 509–10 (Diaz, J., concurring in part and dissenting in part). Justice Diaz cited McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), for the proposition that Simmons was entitled to have the jury consider any relevant circumstance during sentencing. Id. at 509. The dissent also cited Mississippi Supreme Court cases holding that “Mississippi allows evidence of mitigating circumstance of an unlimited nature.” Id.

Simmons then instituted state post-conviction proceedings to challenge his conviction and sentence. The Mississippi Supreme Court denied relief in 2004 and, in so doing, found that both issues relevant to this appeal were barred by res judicata. Simmons, 869 So.2d at 1000, 1006. On October 15, 2004, Simmons filed a petition for writ of habeas corpus in the U.S. District Court for the Southern District of Mississippi, raising fifteen grounds for relief. The district court denied relief on all grounds. As to the “great risk of death aggravating circumstance,” the district court found that although the record did not support the Mississippi Supreme Court's “toxic mixture” holding concerning the disposal of Wolfe's body, the evidence was sufficient to support its alligator theory and thereby support the aggravator. Simmons, 2008 WL 4446615, at *12. Additionally, the district court found that the exclusion of the videotape was not constitutional error. Id. at *31.

Simmons requested a COA on three issues: (1) whether the trial court erroneously allowed the prosecution to submit to the jury an aggravating circumstance without sufficient evidentiary support in violation of the Sixth, Eighth, and Fourteenth Amendments; (2) whether Simmons was denied effective assistance of counsel during the penalty phase of his trial, in violation of the Sixth and Fourteenth Amendments; and (3) whether the trial court erred during the sentencing phase of his trial by excluding relevant mitigating evidence in violation of the Sixth, Eighth, and Fourteenth Amendments. The district court granted Simmons a COA as to the first issue, but denied it as to the second and third. Simmons filed a motion to expand the COA, and we granted a COA as to the third issue and denied it as to the second. Simmons, 381 Fed.Appx. at 340. Simmons then timely filed this appeal.

II. STANDARD OF REVIEW

We review the district court's legal conclusions de novo and its factual findings for clear error. Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir.2002). Simmons filed his federal habeas petition after 1996, so the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”) applies to his claims. See Cantu v. Thaler, 632 F.3d 157, 162 (5th Cir.2011) (citing Lindh v. Murphy, 521 U.S. 320, 324–26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under AEDPA, we cannot grant habeas relief for claims that were adjudicated on the merits in state court proceedings unless that adjudication either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “We review pure questions of law under the ‘contrary to’ standard of sub-section (d)(1), mixed questions of law and fact under the ‘unreasonable application’ standard of sub-section (d)(1), and pure questions of fact under the ‘unreasonable determination of facts' standard of sub-section (d)(2).” Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir.2000) (citation omitted).

A decision is contrary to clearly established federal law under § 2254(d)(1) if the state court (1) “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law”; or (2) “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent” and reaches an opposite result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court makes an unreasonable application of clearly established federal law if the state court (1) “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts”; or (2) “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. 1495. In order to find that the state court's application of law to facts was unreasonable, its result must have been “more than incorrect or erroneous” but must be “objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495). We presume that factual determinations of the state court are correct; the petitioner must rebut this presumption by clear and convincing evidence. See § 2254(e)(1); Woods v. Quarterman, 493 F.3d 580, 587 (5th Cir.2007).

III. DISCUSSION

Simmons alleges two points of constitutional error on his appeal. First, he claims that the “knowingly created a great risk of death to many persons” aggravating circumstance found by the jury during sentencing and affirmed by the Mississippi Supreme Court lacks sufficient evidentiary support in violation of the Sixth, Eighth, and Fourteenth Amendments. Second, he alleges that the trial court erred by excluding relevant mitigating evidence during sentencing; namely, that the exclusion of the videotape Simmons made shortly after the murder in which he expressed remorse violated his rights under the Sixth, Eighth, and Fourteenth Amendments.

A. Sufficiency of the Evidence on the Aggravating Circumstance

Simmons first notes that the jury found that he “knowingly created a great risk of death to many people” based on the State's argument that he created this risk by locking Charlene Leaser in a metal box for several hours. He also asserts that the State misstated the aggravating circumstance in its closing argument during sentencing, referring to it simply as “great risk of harm or death.” On direct appeal, the State abandoned this line of argument and instead asserted that Simmons created a great risk of death to many people when (1) Milano repeatedly fired a rifle in a residential neighborhood, and (2) when Simmons created a “toxic mixture” in the bayou by disposing of Wolfe's body parts and did so to attract alligators, both of which created the risk to recreational users of the bayou. The Mississippi Supreme Court rejected the first explanation but found that Simmons's disposal of Wolfe's body parts in the bayou satisfied the aggravating circumstance because (1) it created a “toxic mixture” that endangered residents who used the water, and (2) it was intended to attract “alligators and other similar creatures” that subjected nearby residents and “water enthusiasts” to inherent danger. Using this trial and appellate history, Simmons claims that the jury found an aggravating circumstance without sufficient evidentiary support in violation of his Sixth, Eighth, and Fourteenth Amendment rights. Simmons first contends that the Mississippi Supreme Court's acceptance of the public health and alligator theories violated Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because it used facts not found by the jury to make Simmons eligible for the death penalty. Second, he asserts that the Mississippi Supreme Court's decision was based on an unreasonable determination of the facts and that the evidence was insufficient for a reasonable jury to find the aggravating circumstance beyond a reasonable doubt.

1. Sufficiency of the Evidence

As a first matter, we may not consider Simmons's argument that the Mississippi Supreme Court's determination of a new factual basis for the “great risk of death” aggravating circumstance deprived him of his constitutional right under Ring to have a “jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” 536 U.S. at 589, 122 S.Ct. 2428. Simmons sought, and the district court granted, a COA to determine whether “the trial court erroneously allowed the prosecution to submit to the jury an aggravating circumstance without sufficient evidentiary support in violation of [Simmons's] Sixth, Eighth and Fourteenth Amendment rights as set forth in the United States Constitution.” Simmons's argument about allegedly improper appellate fact finding is therefore outside of the scope of his sufficiency-of-the-evidence argument. “We have jurisdiction to address only the issue specified in the COA.” United States v. Daniels, 588 F.3d 835, 836 n. 1 (5th Cir.2009) (citing Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997)). Because Simmons's argument falls outside the scope of the COA, we may not address it here. The Supreme Court has held that habeas relief is proper if we find “that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Lewis v. Jeffers, the Supreme Court extended this principle to hold that a petitioner's due process or Eighth Amendment rights are violated when a state court finds an aggravating circumstance that no reasonable sentencer could have based on the evidence adduced at trial. 497 U.S. 764, 783, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). We must therefore evaluate the sufficiency of the evidence using the “rational factfinder” standard established in Jackson. See id. at 781, 110 S.Ct. 3092.

The aggravating circumstance at issue here is one of eight allowed under Mississippi law. See Miss.Code Ann. § 99–19–101(5). The aggravator reads: “The defendant knowingly created a great risk of death to many persons.” Id. § 99–19–101(5)(c). The Mississippi Supreme Court has held that this aggravator is not restricted to “those crimes where very large numbers of individuals were at risk or those where the safety of others than an intended few was jeopardized.” Jackson v. State, 684 So.2d 1213, 1235 (Miss.1996). It has also held that the aggravator was improperly given, however, when there was “no evidence that [the defendant] knowingly created a great risk of death to anyone, other than ... his intended victim.” Porter v. State, 732 So.2d 899, 906 (Miss.1999). In the present case, the Mississippi Supreme Court rejected the argument that Simmons satisfied the aggravator because Milano fired a gun in the middle of the night in a residential neighborhood when only Simmons, Wolfe, and Leaser were in the house. See Simmons, 805 So.2d at 496. In so doing, it noted that it declined to find that these three people together constituted “many” people under the aggravator. Id. Instead, it found the following:

Simmons contaminated the recreational waters of the residential neighborhood with Wolfe's remains, much of which was not recovered by police. These actions were intended to attract alligators and other similar creatures in an effort to use what nature had to offer to dispose of the evidence. Adjoining landowners and other water enthusiasts were subjected to this inherent danger as a direct result of Simmons' actions. In addition, all of those residents who used that water as it carried the solid and liquid remains of Wolfe through tributaries into the Gulf of Mexico were subjected to this toxic mixture as well. Id. Thus, the Mississippi Supreme Court held that the evidence adduced at trial was sufficient to support the aggravator because when Wolfe dumped the chopped up remains of Wolfe into the bayou, he (1) created a toxic mixture that threatened residents who used the bayou, and (2) intended to attract alligators who would eat the remains, thus also endangering nearby residents and “water enthusiasts.”

Because the facts marshaled by the Mississippi Supreme Court were an unreasonable determination in light of the trial record, there was insufficient evidence to sustain the aggravating circumstance. First, we agree with the district court that the trial record is absent of any testimony or other evidence that disposing of Wolfe's body parts in the bayou created a “toxic mixture” that posed a great risk to human life. The State concedes as much on appeal, noting in its brief that “[b]ecause this was not argued by the prosecution at trial the respondents can have no quarrel with this finding by the district court.” Not only is the trial record devoid of any evidence that disposing of Wolfe's remains in the bayou could create a toxic mixture, the record provides little evidence about use of the bayou by residents or “water enthusiasts.” As to the alligators, the district court found that the risk of attracting alligators that would threaten “adjoining landowners” or “water enthusiasts” who used the bayou would nonetheless satisfy the aggravator. This finding is clearly erroneous. There is ample evidence in the record to support a finding that alligators inhabited the bayou. Simmons's neighbor and friend, Rita Taylor, testified that there were alligators in the bayou, and noted an incident where Simmons shot at one of them. Additionally, police investigator Lee Merrill testified that in the course of the several days he spent helping to collect Wolfe's remains, he once saw an alligator. Viewed in the light most favorable to the state, this evidence establishes (1) that there are alligators in the bayou, and (2) that Simmons knew that there were alligators in the bayou. Additionally, we may fairly infer that alligators might eat human remains disposed of in the bayou. Accepting these facts as true, the evidence is still insufficient to find that by disposing of Wolfe's remains in the bayou, Simmons “knowingly created a great risk of death to many people.”

Most importantly, the evidence in the record establishes that alligators were already present in the bayou. Therefore, to the extent that we may speculate that “adjoining landowners” and “water enthusiasts” used the bayou for recreation and that alligators threatened these people with a great risk of death, they already faced this threat regardless of the disposal of Wolfe's remains. Additionally, aside from the testimony that Simmons had once shot at an alligator in the bayou, and that his neighbor owned a boat that he used on the bayou, there is a dearth of evidence in the record of any other “adjoining landowners” or “water enthusiasts” using the bayou for recreational purposes. Moreover, Lee Merrill's testimony indicates that police and coroners began collecting Wolfe's remains from the bayou only hours after Leaser called the police the morning following the shooting and body-parts disposal. Finally, the aggravating circumstance requires that Simmons knowingly create a great risk of death to many people. To find this intent, jurors must infer from the fact that Simmons knew there were alligators in the bayou, that his intent was for the alligators to consume Wolfe's remains, thereby destroying the evidence. Even viewing this inference as permissible based on our deferential review of facts found by the Mississippi Supreme Court, finding that Simmons satisfied the knowledge component of the aggravator would require assuming that he knew that (1) the body parts would attract alligators not already present in the bayou, and (2) that more than a couple of “adjoining landowners” and “water enthusiasts” would use this stretch of water before the alligators consumed Wolfe's remains. This rank speculation is unsupported by the record. While we recognize the deferential standard of review we must employ in reviewing the state court's findings of fact, and their own prerogative in defining the scope of the aggravating circumstance within constitutional bounds, Simmons has shown by clear and convincing evidence that the Mississippi Supreme Court's finding of fact regarding the “toxic mixture” and risk of alligators are unreasonable given the facts in the record. Therefore, there is insufficient evidence for a rational fact-finder to find beyond a reasonable doubt that Simmons knowingly created a great risk of death to many people, and the trial court's submission of the instruction was error.

2. Effect of the Error

Having found that the “great risk of death” aggravator was submitted in error, we must determine the effect of the error. The State argues that even if we find that the “great risk of death to many people” aggravator was unsupported by the evidence, there is nonetheless no constitutional error. The State contends in light of the Supreme Court's decision in Brown v. Sanders, we must now apply the following principle: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. 546 U.S. 212, 220, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006). Arguing that the district court correctly found that the evidence used to support the “great risk of death to many people” aggravator was also relevant to the pecuniary-gain aggravator, the State urges us to find that the sentence was still constitutional. Simmons urges that the facts and circumstances relevant to the invalidated aggravator are not relevant to the pecuniary-gain aggravator.

At least prior to Sanders, in “weighing states”FN1 such as Mississippi, an invalidated aggravating factor used in imposing a death sentence rendered the sentence unconstitutional. See Sochor v. Florida, 504 U.S. 527, 532, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992). The Supreme Court noted that this rule stems from the fact that “eligibility factors by definition identified distinct and particular aggravating features, [so] if one of them was invalid the jury could not consider the facts and circumstances relevant to that factor as aggravating in some other capacity.” Sanders, 546 U.S. at 217, 126 S.Ct. 884. Therefore, after invalidating one of the aggravating circumstances, we were compelled to reverse the sentence unless we determined that the error was nonetheless harmless under the standard adopted in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Nixon v. Epps, 405 F.3d 318, 329–30 (5th Cir.2005).

FN1. The Supreme Court has previously distinguished between “weighing” and “non-weighing” states in the application of death-penalty sentencing. The distinction between these states occurs after the state has applied statutorily defined eligibility factors that narrow the class of defendants convicted of murder who are eligible for the death penalty. See Sanders, 546 U.S. at 216, 126 S.Ct. 884. “Once this narrowing requirement has been satisfied, the sentencer is called upon to determine whether a defendant thus found eligible for the death penalty should in fact receive it.” Id. In weighing states, “the only aggravating factors permitted to be considered by the sentencer were the specified eligibility factors.” Id. at 217, 126 S.Ct. 884. Therefore, in weighing states, “the sentencer's consideration of an invalid eligibility factor necessarily skewed its balancing of aggravators with mitigators and required reversal of the sentence” unless the error was found to be harmless. Id. (citing Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992)) (internal citation omitted). For non-weighing states, “a State that permitted the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors,” the Supreme Court “set forth different rules governing the consequences of an invalidated eligibility factor.” Id. at 217–18, 126 S.Ct. 884. Sanders's language, however, leaves great ambiguity as to whether the principle announced above applies in weighing as well as non-weighing states. In the paragraph prior to announcing its test, the Supreme Court explained that the “weighing/non-weighing scheme is accurate as far as it goes, but it now seems ... needlessly complex.” Sanders, 546 U.S at 219, 126 S.Ct. 884. It went on, however, to preface announcement of the test by noting: “We think it will clarify the analysis, and simplify the sentence-invalidating factors we have hitherto applied to non-weighing States, if we are henceforth guided by the following rule....” Id. at 220 (emphasis added). The Court did not appear to explicitly overrule its precedent that creates the “weighing/non-weighing” bifurcation, but used some language that nevertheless suggests that the distinction is a remnant of the past. The Sixth Circuit has held that the Sanders test does not apply to weighing states, noting the Court's mention of simplifying the analysis the Court has applied to non-weighing states. See Wilson v. Mitchell, 498 F.3d 491, 507 (6th Cir.2007). The Eleventh Circuit, without deciding the issue, indicated that “it is probable that the Court's decision ... announced a uniform rule to be applied in weighing and nonweighing states alike.” Jennings v. McDonough, 490 F.3d 1230, 1255 n. 22 (11th Cir.2007). Like the Eleventh Circuit in Jennings, we need not decide today whether the Supreme Court intended Sanders to apply in weighing states, because we find that the submission of the “great risk of death” aggravator was harmless error.

In our case law, when an aggravating circumstance was improperly submitted to the sentencer we have applied the test found in Brecht to determine if the error was harmless. See Nixon, 405 F.3d at 329–30; Billiot v. Puckett, 135 F.3d 311, 318 (5th Cir.1998). The Supreme Court recently affirmed the propriety of applying the Brecht test when conducting harmless error review in habeas proceedings “when the state appellate court failed to recognize the error and did not review it for harmlessness.” Fry v. Pliler, 551 U.S. 112, 114, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Under Brecht, we may not grant Simmons relief unless the error “had substantial and injurious effect or influence in determining the jury's verdict.” 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We have interpreted this standard to mean that habeas relief is only proper if there is “more than a reasonable probability” that it could have contributed to the decision to impose the death sentence. Billiot, 135 F.3d at 318 (quoting Woods v. Johnson, 75 F.3d 1017, 1026–27 (5th Cir.1996)). If, however, “our minds are ‘in virtual equipoise as to the harmlessness,’ ” we must find that the error was harmful. Id. (quoting O'Neal v. McAninch, 513 U.S. 432, 433–36, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). Thus, under our standard, the error is harmless if we find that “the sentence would have been the same had the unconstitutional aggravator never been submitted to the jury.” Nixon, 405 F.3d at 330 (citing Billiot, 135 F.3d at 319).

The State argues that even if we hold the “great risk of death to many people” aggravator constitutionally invalid in this case, the error was nonetheless harmless to the jury's sentencing determination. First, it argues under the guise of the Sanders test that the jury could have properly considered the evidence that Leaser was kept locked in a metal box and stripped of her clothes and belongings under the pecuniary-gain aggravator. It further argues that the jury was authorized to consider the detailed circumstances of the crime, and that the jury would have nevertheless returned a verdict of death considering: (1) Simmons planned the murder in hopes of robbing Wolfe; (2) he raped and imprisoned Leaser in a metal box for several hours; and (3) he butchered Wolfe's body. The State also notes that the prosecutor only mentioned the “great risk” aggravator twice in his closing argument during sentencing, and cites our decision in Nixon, where we found the submission of an invalid aggravating circumstance harmless error under the Brecht test. 405 F.3d at 331. The State offered a fairly limited case during Simmons's sentencing. It made no opening argument, instead introducing forty-six exhibits from the trial, including evidence such as the knife and bushhook used to dismember Wolfe's body. Aside from this and some limited cross-examination of two of Simmons's mitigation witnesses, the only other argument or evidence offered was during closing argument. The first prosecutor explained that the jury first needed to find that Simmons intended that Wolfe's killing take place and satisfy at least one of the two qualifying factors offered, which were the same as the aggravating factors, before balancing the aggravating against the mitigating circumstances. The State made the following argument with respect to the “great risk of death” aggravator:

Aggravating circumstance in this case, number one, is we submit to you he created a great risk of harm or death. Think of what was going on in the box for about six or seven hours. Think of what was going to happen to her. Think of what they consciously did to Jeffrey Wolfe, knowing that they were going to have to get rid of everything, every piece of evidence including the body. ... Where does all this lead? What was he going to do with the eyewitness to this crime? What do you think was happening? Common sense. You have heard all the evidence. Based on everything you heard, I think it is reasonable to infer, to believe based on everything else, that this was going to happen to her. So, that's submitted to you. That's submitted to you because we think that was going to happen. I think you think it was going to happen. You know it was going to happen. Thereafter, the prosecutor introduced the pecuniary-gain aggravator, spending about the same amount of time discussing evidence of Simmons's financial troubles and arguing that the murder was motivated by a desire to rob Wolfe. Only once more did the prosecutor refer to evidence that Simmons locked Leaser in a box, merely stating: “remember Brooke.”

As a first matter, we reject the State's argument that the error was harmless because under the jury instruction, the jury could have nonetheless considered all of the circumstances of the crime. While the jury was allowed to consider all the circumstances of the crime when considering (1) whether Simmons intended that the killing of Wolfe take place and (2) what mitigating evidence existed in the case, this was not the case with respect to aggravating circumstances. The jury instruction was clear that once the jury found that Simmons intended the killing take place and that he satisfied one of the eligibility factors, it must “consider only the following elements of aggravation in determining whether the death penalty may be imposed.” Because we have ruled one of those two aggravating circumstances invalid, we must consider only the evidence presented that was relevant to the remaining aggravating circumstance. Regardless, we find that the error was harmless. Throughout trial and sentencing, the jury heard extensive testimony and evidence related to Simmons's financial motives in murdering Wolfe. Indeed, this was the primary theory upon which the State sought to convict Simmons; the jury ultimately found him guilty of capital murder because of the underlying felony of robbery. The jury heard, among other evidence, that Simmons: asked that Sonny Milano call Wolfe and ask him to come over to Simmons's house that night; brought home butcher knives from work; borrowed a boat from his neighbor; owed a drug-related debt to Wolfe; was having financial difficulties; took approximately $1,000 from Wolfe after his murder and was disappointed that he did not have more money on his person; likely took Leaser's money while she was trapped in the metal box; and sought to hide the evidence by dismembering Wolfe and disposing of his remains in the bayou.

Further, the State's closing argument again emphasized the pecuniary-gain aggravator. The State noted that Simmons's ex-wife had admitted on cross-examination during her mitigation testimony that Simmons was having financial difficulties, and argued that he was not in a position to pay off the large debts he owed to Wolfe. Based on this, the State emphasized that in convicting Simmons of capital murder, the jury had already found that the murder was committed during the course of a robbery and that he did so because he could not extinguish his debt to Wolfe. The State also recapitulated its theory of Simmons's role in the murder in its final argument, suggesting among other things that Simmons planned the murder, needed the money, and had “told Sonny Milano to call Jeffrey Wolfe and come to his death.” Additionally, the fact that Simmons locked Leaser in a box and stripped her of her belongings also relates to Simmons's pecuniary motives for the murder. That Leaser was locked up and had her belongings taken, including cash that she brought with her from Houston, is relevant to showing similar motive and intent with respect to Wolfe's murder. It was also during the time that Leaser was trapped in the box that Simmons was able to strip Wolfe of approximately $1,000. Therefore, some of the evidence that the State submitted under the invalid aggravator was actually relevant to the pecuniary-gain aggravator. The evidence regarding Leaser should not have been submitted under the “great risk of death to many people” aggravator in the first place, as evidenced by the State's post-hoc justifications regarding the disposal of Wolfe's body creating the risk due to a “toxic mixture” and alligators. It is thus not surprising that some of this evidence properly relates to another aggravator.

In contrast to the extensive evidence properly related to the pecuniary-gain aggravator, the only evidence that must be excluded under the invalidated aggravator is (1) the aggravator itself and (2) the State's suggestion during closing argument that Simmons planned to kill Leaser. While this latter argument does have the potential to inflame the passions of the jury, it pales in comparison to the more extensive and equally disturbing evidence that the jury could consider under the pecuniary-gain aggravator. Further, in Nixon, we held harmless the improper introduction of documentary evidence of the petitioner's prior rape conviction and the prosecutor's two references to it during closing argument when the bulk of the evidence and argument presented related to the other aggravator. 405 F.3d at 331. Thus, the inflammatory nature of a certain argument does not, in itself, make the error harmful. Here, the prosecutor spent at least equal time emphasizing the pecuniary gain aggravator as the invalidated aggravator. Moreover, some of the evidence emphasized during his argument concerning the “great risk of death” aggravator could have been properly emphasized by the prosecutor under the pecuniary-gain aggravator. Contrary to the dissent, we find this Court's decision in Nixon analogous to the situation here. While the dissent notes that the State repeatedly suggested that Simmons would have killed Leaser had she not escaped from the box, the prosecutor made this argument twice during closing argument, the latter quite briefly. Similar to this case, this Court in Nixon found the introduction of an improper aggravating circumstance harmless when the prosecution improperly introduced documentary evidence of the petitioner's rape conviction and referred to it twice during closing argument. Id. at 331. The Court then contrasted this with the “brutal details” the jury was properly allowed to consider, as here, under the other aggravator. Id. Although the prosecution here emphasized the probability that Simmons would have killed Leaser slightly more than the prosecutor in Nixon emphasized the rape in that case, if anything, the actual evidence of the rape is more likely to significantly prejudice a jury than the mere possibility that Simmons would have ultimately killed Leaser. Given the similarities between the amount of improper evidence and the prosecutor's improper argument in both cases, we find Nixon hard to distinguish in any meaningful way. Because a substantial portion of the prosecution's argument and the bulk of the evidence referred to by the State during sentencing went to Simmons's intent to commit the murder for pecuniary gain during the course of a robbery, we find that the “great risk of death” aggravator did not have a “substantial and injurious effect” on the jury's sentencing decision. We thus affirm the district court's denial of habeas on this ground.

B. Exclusion of Videotape as Mitigating Evidence

Simmons argues that the trial court's denial of his motions to introduce a videotape he made hours after the murder violates his Eighth and Fourteenth Amendment rights to introduce all relevant mitigating evidence in the penalty phase. In the videotape, addressed to his ex-wife and children, Simmons expressed remorse without directly admitting the murder. He points to two closely related lines of cases, each of which he claims supports his claim for relief. First, he notes the Supreme Court's command in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), subsequently reemphasized in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), that: [T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Lockett, 438 U.S. at 604–05, 98 S.Ct. 2954. Second, he claims that the videotape's exclusion violates the principle announced in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), concerning guilt, and extended to capital sentencing in Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam), that “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302, 93 S.Ct. 1038. Specifically, he argues that like the evidence in Green, the excluded videotape was “highly relevant to a critical issue in the punishment phase of the trial,” and “substantial reasons existed to assume its reliability.” Green, 442 U.S. at 97, 99 S.Ct. 2150.

In Chambers, the Supreme Court considered the petition of a man sentenced to life in prison for the murder of a police officer. 410 U.S. at 285, 93 S.Ct. 1038. Prior to the petitioner's trial, another man, McDonald, gave a sworn confession that he had committed the murder and had already confessed this to another friend, before later retracting his confession. Id. at 287–88, 93 S.Ct. 1038. At the petitioner's trial, the trial court denied his request to call McDonald as an adverse witness as well as three witnesses to whom McDonald had confessed, finding that the testimony of the other three would constitute hearsay. Id. at 291–92, 93 S.Ct. 1038. The Supreme Court reversed the petitioner's conviction, holding that “the exclusion of this critical evidence, coupled with the State's refusal to permit [the petitioner] to cross-examine McDonald, denied him a trial in accord with ... due process.” Id. at 302, 93 S.Ct. 1038. The Court noted that “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. Despite this broad language, the Court noted that its holding did not establish new constitutional principles, but instead that “under the facts and circumstances of this case,” the petitioner was denied a fair trial. Id. at 302–03, 93 S.Ct. 1038. The Court also noted that the hearsay statements it ruled should have been admitted “were originally made ... under circumstances that provided considerable assurance of their reliability.” Id. at 300, 93 S.Ct. 1038. The Supreme Court applied a similar principle in the context of capital sentencing several years later. In Green, the Supreme Court reversed the death sentence of the petitioner after the trial court excluded from the sentencing as hearsay the testimony of a man, Moore, who claimed that another man had confessed to committing the murder. 442 U.S. at 96, 99 S.Ct. 2150. The Supreme Court held that regardless of Georgia's hearsay rule, “under the facts of this case,” the testimony's exclusion was a due process violation. Id. at 97, 99 S.Ct. 2150. The Court noted that the testimony was “highly relevant to a critical issue in the punishment phase of the trial,” and “substantial reasons existed to assume its reliability.” Id. These “substantial reasons” to find the testimony reliable were: (1) Moore's confession was made spontaneously to a close friend; (2) the confession was corroborated by ample evidence; (3) the statement was against interest and nothing suggested an ulterior motive; and (4) “[p]erhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a death sentence upon it.” Id. Therefore, the Supreme Court held that “[i]n these unique circumstances, ‘the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ ” Id. (quoting Chambers, 410 U.S. at 302, 93 S.Ct. 1038).

We have held that the application of these cases is quite limited. We have noted that “ Green is limited to its facts, and certainly did not federalize the law of evidence. It does, however, indicate that certain egregious evidentiary errors may be redressed by the due process clause.” Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir.), aff'd, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). In Edwards v. Scroggy, we considered the trial court's exclusion of testimony by the petitioner's mother and priest that the petitioner was sorry for his participation in the murder and, if his life were spared, that he would “serve God” and “do something with his life in the future in a very constructive way.” 849 F.2d 204, 211–12 (5th Cir.1988). We found that the exclusion was not unconstitutional under Green and Eddings, holding that Mississippi's exclusion of hearsay evidence “was not unnecessarily limiting, nor did it operate to render [the petitioner's] trial fundamentally unfair.” Id. at 212. Given the limitations imposed by both the case law and the scope of our review under AEDPA, we cannot say that the state court's exclusion of the videotape as hearsay was objectively unreasonable or that the exclusion rendered the sentencing fundamentally unfair. The Supreme Court was clear that its holdings in both Green and Chambers were based on unique and disturbing facts: the exclusion of evidence about another person confessing to the murder. While evidence of Simmons's remorse would surely have been relevant to the jury's consideration of mitigating factors, the probative value of the videotape pales in comparison to the excluded evidence in Green and Chambers. More importantly, the statements in Simmons's videotape did not have the “considerable assurance of reliability” that the Supreme Court found in Chambers or the “substantial reasons” to support its reliability that the Court found in Green. Although the videotape here in which Simmons expressed some remorse does contain some indicia of reliability, we cannot say that its reliability is “substantial.” The videotape here (1) was not made as contemporaneously as were the confessions in Green and Chambers; (2) was less of a statement against interest, because Simmons did not directly confess to the crime and may have had ulterior motives to create the tape; and (3) unlike the most important factor in Green, the prosecution did not introduce the videotape as evidence during trial. Additionally, while it is true that evidence of Simmons's remorse was important to the jury's consideration of mitigating factors, the videotape was not the sole avenue he had to provide such evidence. Simmons chose not to testify at the sentencing hearing, at which time he could have expressed his remorse in person. Introducing the videotape without testifying would have allowed Simmons to show that he felt remorse without the ability to cross-examine him.

Additionally, the Supreme Court's decisions in Eddings and Lockett do not provide Simmons a path to relief. The Supreme Court has held that it is “clear” and “well established” that the “sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ ” Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (quoting Eddings, 455 U.S. at 114, 102 S.Ct. 869). The Lockett/ Eddings line of cases, however, deals with the exclusion of specific types of evidence rather than specific items in evidence. In Lockett, the Supreme Court struck down Ohio's death penalty statute because it permitted the sentencer to consider only three mitigating circumstances. 438 U.S. at 607–08, 98 S.Ct. 2954. Likewise in Eddings, the Supreme Court reversed the petitioner's death sentence because the trial judge refused to admit entire areas of mitigating evidence: there, evidence relating to the circumstances of the petitioner's “unhappy upbringing and emotional disturbance.” 455 U.S. at 109, 113–15, 102 S.Ct. 869. Here, the trial court did not disallow evidence that Simmons was remorseful for his actions; instead, it excluded a particular item in which Simmons expressed remorse because the court found it unreliable hearsay. Therefore, Simmons cannot accurately claim that the jury was deprived of considering “as a mitigating factor, any aspect of [his] character or record [or] any of the circumstances of the offense.” Lockett, 438 U.S. at 604–05, 98 S.Ct. 2954. We do not, and cannot, today decide whether the videotape should have been admitted as evidence during the sentencing hearing under Mississippi law. See Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). Instead, we can only decide whether the exclusion of the videotape was an unreasonable determination in light of clearly established federal law. Here, the facts of this case are easily distinct from the “unique” set of circumstances faced by the Supreme Court in Green and do not involve a categorical exclusion of mitigating evidence as in Lockett and Eddings. Because the videotape's exclusion was not such an egregious evidentiary error so as to deny Simmons a fair sentencing hearing, we affirm the district court's denial of habeas on this ground.

IV. CONCLUSION

We find that neither of the two grounds of error that Simmons has presented here entitle him to habeas relief. Therefore, we affirm the district court's denial of Simmons's habeas petition. AFFIRMED.

EMILIO M. GARZA, Circuit Judge, dissenting:

I agree with the majority that the State presented no evidence that could have supported applying the “great risk of death to many people” aggravating circumstance, and that the jury therefore should not have been instructed that it could weigh that aggravating circumstance in its decision to impose the death penalty. I also agree that this case would be unproblematic if the jury had been instructed that the only potentially applicable aggravating circumstance was that the petitioner (“Simmons”) committed the murder for pecuniary gain. The only question, then, is whether the inclusion of the “great risk of death to many people” instruction was harmless. I cannot say with any confidence that it was. See O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (“[W]hen a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief.”). Accordingly, I dissent.

A trial court's submission of an invalid aggravating factor in a capital case is harmless “(a) if the sentence would have been the same had the unconstitutional aggravator never been submitted to the jury, or (b) if the sentence would have been the same had the ... aggravating circumstance been properly defined in the jury instructions.” Nixon v. Epps, 405 F.3d 318, 330 (5th Cir.2005) (citing Billiot v. Puckett, 135 F.3d 311, 319 (5th Cir.1998)). We will not consider submission of the aggravator sufficiently harmful to warrant habeas relief unless the factor “can be said to have had a ‘substantial and injurious effect on the verdict reached by the jury.’ ” Id. at 329 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). There must be “ ‘ more than a mere reasonable possibility that [the improper aggravating circumstance] contributed to the verdict. It must have had substantial effect or influence in determining the verdict.’ ” Id. at 330 (quoting Billiot, 135 F.3d at 318). “[I]f, after evaluating the claim in light of the entire record, our minds are in ‘virtual equipoise as to the harmlessness' of the error, ‘we must conclude that it was harmful.’ ” Id. (quoting Billiot, 135 F.3d at 318); see O'Neal, 513 U.S. at 435, 115 S.Ct. 992. If we are in “grave doubt” about the effect of the error, we cannot deny relief on the ground that the error was harmless. O'Neal, 513 U.S. at 435–37, 115 S.Ct. 992. The trial court's erroneous instruction alone does not give us much indication of how much weight the jury may have given the risk of death to others. The State, however, placed significant emphasis on that factor during closing argument. Specifically, the State's argument to the jury at sentencing went into significantly more detail regarding what the jury might consider under “great risk of death to many people,” focusing the jury's attention on Charlene Leaser's predicament. Its discussion of aggravating circumstances began as follows:

Aggravating, why he should receive [the death penalty]; mitigating, why he shouldn't. Aggravating circumstance in this case, number one, is we submit to you he created a great risk of harm or death. Think of what was in that box for about six or seven hours. Think of what was going to happen to her. Think of what they consciously did to Jeffrey Wolfe, knowing they were going to have to get rid of everything, every piece of evidence including the body. Simmons then objected to the argument as unsupported by the evidence. The objection was overruled. The State continued: Where does this all lead? What was he going to do with the eyewitness to this crime? What do you think was happening? Common sense. You have heard all the evidence. Based on everything you heard, I think it is reasonable to infer, to believe based on everything else, that this was going to happen to her. So, that's submitted to you. That's submitted to you because we think that was going to happen. I think you think it was going to happen. You know it was going to happen. This argument went well beyond the proper bounds of the “great risk of death to many people” aggravating factor, urging the jury to sentence Simmons to death based on facts that were not entitled to aggravating weight. After broadening its discussion to include the pecuniary gain aggravating circumstance, the State concluded by again referring to the treatment of Leaser and again suggesting that that treatment was appropriate for consideration as aggravating evidence: Unanimously find the aggravating circumstances, pecuniary gain, great risk of harm to many people. Think about Brooke. You go here and you say those circumstances outweigh the mitigating. Those mitigating circumstances do not outweigh. And I ask you to return a penalty of death in this case. If it's not imposed and the circumstances warrant it, it's no penalty at all.

It is not difficult to discern the State's argument. Its discussion of aggravation both opened and closed with emphasis on Simmons's actions towards Leaser, and the State discussed the “great risk of death to many” aggravator extensively. The State repeatedly urged the jury to place aggravating weight on Simmons's treatment of Leaser and, in particular, the probability that he would have eventually killed her.

I agree with the majority that it is appropriate to consider, as one factor in our analysis, whether evidence that was given aggravating weight under an improperly admitted factor would have been admissible even in the absence of that factor. But I cannot agree that, simply because the brutal details of Simmons's treatment of Leaser were admissible, the erroneous instruction was harmless. The majority suggests that this case is not meaningfully distinguishable from Nixon v. Epps, in which we found an erroneously charged aggravating circumstance harmless in light of the extensive “brutal details” on which the jury could have based a sentence of death. 405 F.3d at 331. But the jury in Nixon had been instructed that it could consider as an aggravating circumstance that the capital offense was especially heinous, atrocious or cruel. Id.; see Miss.Code Ann. § 99–19–101(5)(h). In other words, the jury was expressly permitted to give aggravating weight to the brutal details of the crime. As the Mississippi Supreme Court has explained, though, a jury instructed only as to the pecuniary gain aggravator, as this jury should have been, has “no way under the instructions to base their sentence of death on any argument that the crime was especially heinous.” Turner v. State, 732 So.2d 937, 956 (Miss.1999) (en banc) (internal quotation marks omitted). Similarly, a jury instructed only as to pecuniary gain could not base the sentence of death on the great risk of death to many people. Even assuming that the majority is correct that Simmons's brutal treatment of Leaser is relevant to establishing the pecuniary gain aggravator, it is relevant only insofar as it supports the inference of a pecuniary motive. Simmons's brutality to Leaser, any risk he created to her, and any intent to eventually kill her could not have been given aggravating weight in their own right.

It is entirely possible that the jury, properly instructed and acting within the confines of those instructions, would have imposed the death penalty. Certainly, Mississippi courts have sentenced others to death in cases where pecuniary gain was the only aggravating circumstance. See, e.g., Turner v. State, 953 So.2d 1063, 1076 (2007) (en banc); Byrom v. State, 863 So.2d 836, 881–82 (Miss.2003) (en banc). This jury, unfortunately, never had the opportunity to decide whether the pecuniary gain aggravating circumstance alone outweighed any mitigating circumstances. Making matters worse, the State aggressively emphasized the risk Simmons posed to Leaser and urged the jury to consider that risk under the improperly charged factor. In light of the record as a whole, I cannot say with any confidence that the sentence was not substantially and injuriously influenced by the submission of that improper aggravating circumstance. I therefore respectfully DISSENT.