Simmons v. Epps, 2011 U.S. App. LEXIS 18056

Simmons was convicted in Mississippi state court of capital murder, rape, and kidnapping in 1997 and sentenced to death for capital murder; Mississippi Supreme Court denied direct and post-conviction relief.
The defense challenged the death sentence on two grounds: (a) the trial court improperly allowed the great-risk-of-death aggravator to be submitted without sufficient evidentiary support, and (b) the trial court excluded mitigating evidence, including a self-recorded videotape, during sentencing.
Mississippi Supreme Court affirmed; the fatal-allegation aggravator was found unsupported by the record, and the videotape exclusion was deemed not objectively unreasonable under federal standards.
The district court denied habeas relief on all grounds but granted a COA on the sufficiency of evidence for the aggravator and the videotape exclusion.
On review, the Fifth Circuit held the great-risk-of-death aggravator was improperly submitted but that the error was harmless, and held the videotape exclusion was not an unreasonable federal-law ruling; consequently, habeas relief was denied.
Dissent by Judge Garza would have found the error not harmless and would have granted relief on the aggravator issue

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the great-risk aggravator	Simmons contends the aggravator lacked evidentiary support	State argues aggravator supported by theory of toxic mix/alligator risk or other facts	Aggravator submission found unsupported; error deemed harmless
Effect of invalid aggravator on sentence	Invalid aggravator tainted the sentence	Pecuniary-gain aggravator still supported punishment; harm not substantial	Error deemed harmless; sentence affirmed
Exclusion of videotape as mitigating evidence	Exclusion violated Lockett/Eddings and due process	Exclusion not objectively unreasonable under Green/Chambers	Exclusion not an unreasonable federal-law ruling; habeas denied

Ring v. Arizona, 536 U.S. 584 (U.S. 2002) (requires jury findings for aggravating facts in death penalty cases when constitutionally required)
Brown v. Sanders, 546 U.S. 212 (U.S. 2006) (harmlessness standard for invalid aggravators in weighing schemes)
Sanders v. Louisiana?, 546 U.S. 212 (U.S. 2006) (discussion of weighing vs non-weighing states (Sanders))
Nixon v. Epps, 405 F.3d 318 (5th Cir. 2005) (harmless-error review for improper aggravators under Brecht)
Brecht v. Abrahamson, 507 U.S. 619 (U.S. 1993) (standard for evaluating constitutional error in habeas cases)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (whether evidence proves guilt beyond a reasonable doubt)
Lockett v. Ohio, 438 U.S. 586 (U.S. 1978) (mitigating evidence considerations in sentencing)
Eddings v. Oklahoma, 455 U.S. 104 (U.S. 1982) (limitation on excluding relevant mitigating evidence)
Green v. Georgia, 442 U.S. 95 (U.S. 1979) (hearsay exception in capital sentencing under due process)
Chambers v. Mississippi, 410 U.S. 284 (U.S. 1973) (due process limits on hearsay in critical trial stages)
Edwards v. Scroggy, 849 F.2d 204 (5th Cir. 1988) (limitation on excluding testimony of remorse under state law)
Simmons v. State (Miss.), 805 So.2d 452 (Miss. 2001) (Mississippi Supreme Court direct-review ruling on aggravator)
Simmons v. State (Miss.), 869 So.2d 995 (Miss. 2004) (Mississippi Supreme Court post-conviction ruling on issues)