Robert C. Gilliard, Jr. v. Gene A. Scroggy, Commissioner, Mississippi Department of Corrections Donald A. Cabana, Warden, Mississippi State Penitentiary, and State of Mississippi

Citation: 847 F.2d 1141Docket: 87-4377

Court: Court of Appeals for the Fifth Circuit; July 12, 1988; Federal Appellate Court

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Robert C. Gilliard, Jr., a death-sentenced inmate in Mississippi, appeals the denial of his habeas corpus petition under 28 U.S.C. § 2254. He raises three primary issues: 1) the constitutionality of his guilty plea hearing, 2) ineffective assistance of counsel, and 3) prosecutorial remarks regarding parole eligibility during sentencing. The United States Court of Appeals for the Fifth Circuit, after reviewing the case, found no constitutional errors and affirmed the lower court's decision.

The background reveals that Gilliard was convicted for the armed robbery and murder of Grady Chance on August 22, 1981. Evidence against him included eyewitness testimony from Chance's wife, an accomplice's statements, and Gilliard’s confession. His attorney advised him to plead guilty to potentially mitigate the death sentence by demonstrating remorse. Gilliard entered a guilty plea, which the trial judge accepted after confirming it was made knowingly and voluntarily.

During sentencing, the jury found four aggravating factors, resulting in a death sentence. The Mississippi Supreme Court affirmed the conviction, and Gilliard's subsequent attempts for post-conviction relief were denied, culminating in the current federal habeas petition. The district court also denied this relief, leading to Gilliard's appeal, which the appellate court upheld.

Gilliard challenges the validity of his guilty plea, asserting that the state trial judge failed to ensure he comprehended the charges and the consequences of his plea, which is a due process requirement, especially in capital cases. A guilty plea constitutes a conviction and must be both voluntary and made with sufficient awareness of the relevant circumstances. The judge is obligated to inform the defendant of the critical elements of the crime to provide real notice of the charges. Gilliard argues that his inconsistent responses during the plea hearing indicated a lack of understanding, particularly regarding the willfulness of the act. However, after reviewing the entire plea allocution, it is concluded that Gilliard entered his plea freely, knowingly, and voluntarily.

Additionally, Gilliard claims ineffective assistance of counsel, citing nine specific deficiencies that he believes compromised his defense. The analysis applies the standard from Strickland v. Washington, which requires proving that counsel's performance was deficient and that this deficiency prejudiced the defense, undermining the reliability of the trial's outcome. There is a strong presumption that counsel's actions fall within a reasonable range of professional assistance, and the defendant must overcome this presumption by demonstrating that the errors were significant enough to affect the fairness of the trial.

The Strickland standard requires a defendant challenging a death sentence to demonstrate that errors by counsel created a reasonable probability that, if not for those errors, the outcome would have been different. Gilliard argued that his counsel's advice to plead guilty was constitutionally deficient, as it undermined his defense of accidental shooting. Initially persuasive, this argument lost traction upon examination. During a state court hearing, Gilliard testified that his attorney recommended a guilty plea to express remorse and gain leniency, suggesting that this strategy was viable based on the overwhelming evidence against him and the legal options available under Mississippi law. Gilliard had limited defenses: either pleading not guilty and risking a full trial or pleading guilty to possibly mitigate his sentence.

Regarding closing arguments, Gilliard contended that his attorney improperly referenced a previously assessed 30-year sentence, inadvertently allowing the prosecution to clarify the implications of a life sentence in Mississippi. Although this mention could appear strategic, it ultimately opened the door for detrimental information about parole eligibility. The court found that Gilliard successfully demonstrated inadequate performance by his counsel in this instance, but concluded that these remarks did not prejudice the jury's verdict to the extent that it warranted reversal.

The error is deemed prejudicial only if it is probable that the jury would have opted for life imprisonment instead of death had the error not occurred. Given the jury's unanimous finding of four aggravating factors, unaffected by the parole comments, it is concluded that there is no reasonable probability of a different outcome. Consequently, the complaint against counsel fails to satisfy the Strickland test for prejudice.

Gilliard asserts his attorney's performance was inadequate for not seeking a preliminary hearing, changing the venue, or conducting individually sequestered voir dire. However, these objections lack merit as there is no evidence suggesting prejudice.

Regarding the systematic exclusion of Black jurors, Gilliard’s counsel moved for a mistrial after the state used eight peremptory challenges against Black veniremen, citing Swain v. Alabama. This motion lacked supporting evidence of systemic exclusion in other cases, and Gilliard fails to demonstrate that such evidence existed or could have been presented. Thus, this claim of ineffective assistance is unsubstantiated.

Gilliard misinterprets Enmund v. Florida, arguing that the death penalty is inappropriate unless there is intent to kill. However, Enmund allows the death penalty if the defendant kills, attempts to kill, intends to kill, or contemplates lethal force during a felony. This misunderstanding undermines his claim of counsel's deficiency for advising a guilty plea to willful murder.

Claims regarding the opening statement and the plea deal of an accomplice, Seals, are also dismissed. Gilliard's counsel's decision to forego an opening statement is seen as a strategic choice without demonstrated prejudice. Although counsel did not successfully inform the jury of Seals' plea deal, the prosecutor mentioned it during closing arguments, ensuring jurors were aware before deliberation.

Lastly, Gilliard contends that the prosecutor's closing remarks about parole eligibility introduced an improper aggravating circumstance not listed in the Mississippi capital sentencing statute, warranting a new sentencing hearing.

The prosecutor's introduction of future dangerousness during sentencing was deemed permissible, as the defense had already presented this concept. Under Mississippi law, the jury inherently considers future dangerousness when evaluating prior violent felony convictions. The prosecutor’s remarks did not unduly prejudice Gilliard or alter the jury's potential verdict. Gilliard's objection regarding the prosecutor's statements about parole was addressed, noting that while the remarks may not fully explain the parole system, they were accurate in context. The prosecutor's assertion that a life sentence could lead to parole eligibility after ten years aligned with Mississippi law, absent multiple prior felony convictions. The court found no significant error that would warrant a new sentencing hearing, thus affirming the denial of Gilliard's habeas corpus application. Additionally, the transcript includes a series of exchanges confirming Gilliard's intent to change his plea from not guilty to guilty, with the court ensuring that the plea was made voluntarily and intelligently outside the jury's presence.

The individual, aged 37, has completed up to the 11th grade and is literate. They are charged with armed robbery and capital murder, fully understanding these charges. Currently held at Forrest County Regional Jail, they confirm no drug or alcohol use in the past 48 hours and assert they are mentally competent. 

The individual acknowledges their constitutional rights, including the right to a jury trial, the right to confront and cross-examine witnesses, the right to present a defense, and the right to remain silent. They understand that the state must prove their guilt beyond a reasonable doubt and that a jury would decide this matter. 

They are informed that pleading guilty waives most rights discussed, except for the right to appeal. Importantly, even upon pleading guilty, a jury will still determine their punishment, which could potentially be the death penalty. The individual confirms their understanding of these proceedings and implications.

The defendant acknowledges understanding the potential punishment of life imprisonment if the jury cannot agree on a sentence. The defendant confirms the admission of guilt for the unlawful killing of Grady Chance during a robbery on August 27, 1981, in Jones County, Mississippi, as outlined in the indictment. The court seeks to ensure the defendant comprehends the charges fully before accepting the guilty plea. The defendant affirms that the killing was committed with malice aforethought and acknowledges the circumstances of the crime. The court verifies that the plea is entered freely, voluntarily, and intelligently, with no coercion, threats, or mistreatment from law enforcement or court officials during transportation or throughout the proceedings. The defendant indicates no questions or concerns regarding the ongoing legal process.

The court accepted the defendant's guilty plea, determining it was made freely, voluntarily, and intelligently. The defendant confirmed satisfaction with the representation provided by Public Defender Ronald Parrish, asserting that Parrish devoted adequate time and attention to the case and did not express any dissatisfaction with his services. The indictment charged Robert C. Gilliard, Jr. and Edwin T. Darby with capital murder under Mississippi law for the killing of Grady Chance during a robbery, citing Section 97-3-19(2)(e) of the Mississippi Code. This statute defines capital murder in cases involving certain felonies, including robbery. The indictment included more details than required, reflecting Mississippi's allowance for dual theories of capital murder in indictments. Legal precedent supports that an indictment need not specify the means of death, and cases can include both premeditated and felony murder charges, necessitating corresponding jury instructions for each theory.

The trial court provided the jury with a list of mitigating circumstances to consider in Gilliard's case, including his age, intelligence, guilty plea and expressed remorse, character traits, potential incorrigibility, and any relevant aspects of his character or life history. Gilliard's attorney, in closing remarks, suggested that while Gilliard should serve time in prison, he should not receive the death penalty, indicating that Gilliard would not pose a danger if given a life sentence instead. The attorney also expressed confidence in Gilliard's removal from society without resorting to capital punishment. Conversely, the district attorney countered by arguing against the impression that a life sentence equates to a long-term prison stay, clarifying that typically, a life sentence could lead to parole eligibility after ten years, thereby questioning the effectiveness of the defense's argument regarding the length of incarceration.