A federal appeals court says a Mississippi court did not err in barring jurors from seeing a videotape made by a former butcher who had claimed it might have prevented him getting a death sentence.
Gary Carl Simmons Jr. was convicted of capital murder in 1997 in Jackson County and sentenced to death for chopping up the body of a Texas drug dealer and raping the victim's girlfriend.
According to court documents, Simmons made the videotape shortly before his arrest. Simmons claimed in his motion for a new trial that he expressed remorse for his actions. Such a display could have resulted in a different sentence, Simmons contended.
A trial judge had said the videotape couldn't be played during the sentencing phase of Simmons' trial.
In 2006, the Mississippi Supreme Court rejected Simmons' claim. The Mississippi court said it agreed with the trial judge that allowing the videotape's use during the sentencing phase would've been self-serving hearsay, especially because Simmons was permitted to offer evidence of his remorse for the murder of Jeffrey Wolfe through other witnesses.
A federal judge in Mississippi in 2008 upheld the ruling.
This past week, a three-judge panel of the 5th U.S. Circuit Court of Appeals in a 2-1 decision said in the videotape, addressed to his ex-wife and children, Simmons expressed remorse without directly admitting the murder.
The panel said that raised questions about whether Simmons has an ulterior motive for creating the tape.
"While it is true that evidence of Simmons' 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," the panel said.
The panel said the trial judge did not disallow evidence that Simmons was remorseful for his actions; instead, he excluded a particular item in which Simmons expressed remorse because the court found it unreliable hearsay.
Wolfe was killed in August 1996 after he came to Simmons' Pascagoula home to collect on a drug debt, according to court records.
Timothy Milano, Simmons' co-defendant and the person authorities said shot Wolfe, was convicted on the same charges and sentenced to life in prison.
Simmons worked as a grocery store butcher when he and Milano were charged with killing Wolfe. Police said the pair kidnapped Wolfe and his female friend and later assaulted the woman and locked her in a box.
Police found parts of Wolfe's dismembered body at Simmons' house, in the yard and at a nearby bayou.