IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-DR-00051-SCT

WILLIAM RAY HUGHES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 11/20/1996

TRIAL JUDGE: HON. GEORGE C. CARLSON, JR.

COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION

COUNSEL

BY: C. JACKSON WILLIAMS

TERRY L. MARROQUIN

DAVID P. VOISIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: MARVIN L. WHITE, JR.

DISTRICT ATTORNEY:

NATURE OF THE CASE: ROBERT L. WILLIAMS

CIVIL - DEATH PENALTY - POST

CONVICTION

DISPOSITION: APPLICATION FOR LEAVE TO FILE

PETITION FOR POST-CONVICTION RELIEF

DENIED - 11/10/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. Dianne Galloway awakened her 16-y ear-old daughter, Ashley, for school at 6:00 a.m.

on January 9, 1996. After experiencing difficulty in starting her car, Ashley departed for

Senatobia High School in Tate County. The car stalled in route and was later seen on Highway2

4 in Senatobia a t 6:30 a.m. Nearby residents saw her asking for assistance at 7:00 a.m. Ashley

was last seen getting into a black pick-up truck at 7: 30 a.m. She was not reported missing until

her mother returned home at 11:45 p.m. that night.

¶2. O n January 22, children scavenging for wood found Ashley's body underneath t he floor

boards of an aba ndoned house in Tate County. A pathologist determined that she had been

raped, stabbed and strangled. On March 27, a knife and Ashley's class ring were found on

property close to the home of Wil lie Ray Hughes. Hughes, a known sex offender, was

questioned by police and DNA samples were obtained from him. The samples taken from

Hughes bore the same characteristics as the semen samples taken from Ashl ey's body. Police

also learn ed that Hughes had driven his mother's black pick-up truck and had failed to report

for work at his job in Senatobia on the day of Ashley's disapp earance. Hughes' mother told

police that Hughes had come home that n ight with blood on his uniform. A witness later

informed authorities that she recogni zed Ashley's picture in the newspaper as the same person

she had seen on January 9 with Hughes in a pick-up truck at 1 p.m. on a rural road in Quitman

County.

¶3. Hughes was indicted in Tate County for kidnaping, ra pe and murder. He was convicted

and sentenced to death on November 20, 1996. We affirmed the conviction and sentence in

Hughes v. State

, 735 So. 2d 238 (Miss. 1999), cert. denied

, 528 U.S. 1083, 120 S. Ct. 807,

145 L. Ed. 2d 680 (2000). Hughes has now filed his application for leave to seek postconviction relief in the Tate County Circuit Court.

DISCUSSION3 I. INEFFECTIVE ASSISTANCE OF COUNSEL.

¶4. "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 ju s t result." S trickland v. Washington

, 466 U.S. 668,

686, 104 S . Ct. 2052, 80 L. Ed. 2d 674 (1984). A claimant must demonstrate that counsel's

performance was deficient and that the deficiency prejudiced the defense of the case. I d

. at

687. "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 St r ickland

, 466 U.S. at 687). The

focus of the inquiry is on whether counsel's assistance was reasonable considering all the

circumstances. I

d

. A reviewing court must strongly presume that counsel's conduct falls

within a wide range of reasonable professional assistance. Further, one who claims ineffective

assistance must overcome another presumption that the challenged a ct or omission "might be

consider ed sound trial strategy." I d

. at 477. In other words, defense counsel is presumed

competent. Bell v. State , 879 So. 2d 423, 431 (Miss. 2004).

¶5. As for the second prong of prejudice to the defense, a reviewing court must determine

whether there is "a rea sonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." M ohr v. State , 584 So. 2d 426, 430 (Miss.

19 91). This means a "probability sufficient to undermine the confidence in the outcome." I d.

¶6. In a death penalty case, the ultimate inquiry is "whether there is a reaso nable probability

that, absent the errors, the sentencer

-- including an a ppellate court, to the extent it4

independently re-weighs the evidence

-- would have concluded that the balance of the

aggravating and mitigating circumstances did not warrant dea th." Strickland

, 466 U.S. at 695.

There is, however, no constitutional right to errorless counsel. M ohr

, 584 So. 2d 426, 430

(Miss. 1991). The right to effective counsel does not entitle a defendant to have an attorney

who makes no mistakes at trial but simply affords the right to have competent counsel. If the

post-conviction application fails on either of the S trickland prongs, the analysis of that issue

ends

. Davis v. State , 743 So. 2d 326, 334 (Miss. 1999) (citing F oster v. State

, 687 So. 2d

1124, 1130 (Miss. 1996)).

A. Cross-Examinatio n of State's Pathologist and Failure to Secure an

Independent Expert.

¶7. Hughes argues that trial counsel was deficient for failing to cross-examine adequately

the State's pathologist and for failing to secure an independent expert to dispute the State's

evidence concerning the time of death. We will review denial of expert assistance issues on

a case-by-case basis and "will grant relief only where the accused demonstrates that the trial

cour t's abuse of discretion is so egregious as to deny him due process and where his trial was

thereby rendered fundamentally unfair." W eatherspoon v. State

, 732 So. 2d 1 58, 160 (Miss.

1999).

¶8. In determining whether a defendant was denied a fair trial because of failure to appoint

or allow funds for an expert, we consider whether and to what degree the defendan t had access

to the State's experts, whether the defendant had the opportunity to cross-exa mine those

experts, and lack o f prejudice or incompetence of the State's experts. F isher v. City of

Eupora

, 587 So. 2d 878, 883 (Miss. 1991 ). Another factor to consider is to what extent the5

State's case depends upon the State's expert. T ubbs v. State

, 402 So. 2d 830, 836 (Miss.

1981).

¶9. In the present case, the State's case did not rise and fall on the evidence establishing the

time of death. Although the State's case was based entirely on circumstantial evidence, the

pa thologist's testimony was not paramount. The State's expert opined that Ashley was killed

within 24 hours of her disappearance. However, the jury also heard considerable evidence

which established that Hughes was seen with the victim on the day of h er disappearance and that

his DNA sample was consistent with that found on the victim. There was more than sufficient

evidence in the record from which a reasonable juror co uld infer that Hughes had killed Ashley.

¶10. Defense counsel was not professional ly negligent in failing to seek an independent

expert in pathology. Even if we were to assume professional error by trial counsel, it does not

follow that the presence of a defense expert would have changed the outcome of the trial.

¶11. F urthermore, Hughes' trial counsel conducted an adequate cross-examination of the

State's expert witness on his estimation of the ti me of the victim's death so to allow the

possibility that the victim could have died much as 72 hours after her disappearance. This issue

is without merit.

B. Challenge to Venue.

¶12. Hughes contends that venue, and thus jurisdiction, was never properly established in

Tate County. This issue was raised at trial and thoroughly discussed on direct appeal, and we

affirmed the State's selection of venue. H ughes

, 735 So. 2d at 249. Consequently the claim

is procedurally ba rred from further consideration on collateral review. Miss. Code Ann. § 99-1 Even though M.R.E. 702 has been amended (on May 29, 2003) to require that courts

apply the Daubert test when evaluating expert testimony, the trial judge applied the correct law

as stated in Polk v. State

at the time of the trial, which was held on November 19, 1996.

6 39-21(3) (Rev. 2000). Since venue was proper in Tate County, it cannot be said that trial

counsel's overall performance was somehow professionally deficient i n failing to challenge

successfully the State's choice of venue. This issue is without merit.

C. Insufficient Challenge to Admissibility of State's DNA evidence.

¶13. Hughes continues to argue that the State's DNA evidence was scientifically unreliable.

The report concluded that the likelihood of someone other than Hughes being the donor of the

sample recovered from the victim was 1:86,000. This issue was thoroughly litigated at both

trial and on direct appeal. Pursuant to the test set forth in P olk v. State

, 612 So. 2d 381, 3 9 0

(Miss. 1992), 1 a reviewing court should ask whether (1) there is a the o ry generally accepted

in the scientific community which supports the conclus ion that DNA testing can produce

r eliable results, (2) there are techniques capable of producing reliable results in DNA

identification, and (3) in the case before the court, whether the testing laboratory performed

generally accepted scientific te chniques without error in the performance or interpretation of

the tests.

¶14. After carefully applying and discussing the Polk t est, we held that the DNA test

performed by GenTest Laboratory and the accompanying report were properly admitted.

Hughes

, 735 So. 2d at 272. The underlying issue is procedurally barred pursuant to Miss.

Code Ann. § 99 -39-21(3) (Rev. 2000), and Hughes may not recast the issue under the guise

of ineffective assistance of counsel. Wiley v. State , 842 So. 2d 1280, 1283 (Miss. 2003).7

D. Failure to Call Alibi Witnesses.

¶15. During opening

statements, defense counsel stated that Ashley had been seen in

Memphis by several wi

tnesses, including a man named Percy Pounders. Trial counsel issued

a subpoena for Pounders' attendance but he failed to appear. The FBI report wherein Pounders

identifi ed Ashley's picture from a photo array indicates that the witness could not recall

whether he saw Ashley on January 8 or Ja nuary 9. Unless Pounders was to testify that he saw

Ashley the day after the kidnaping and with someone other than Hughes, then his testimony is

not nearly as crucial to establish an alibi defense. Further, trial counsel did call Sue

Greenwood to testify that she saw Ashley in her store two days after her disappearance. The

jury was apparently not convinced by her testi mony and it cannot be said that Pounders'

testimony would have changed the outcome at trial. "[A] court deciding an actual

ineffectiveness cl

aim must judge the reasonableness of counsel's challenged conduct on the

facts of the particular

case viewed as of the time of counsel's conduct." S trickland

, 466 U.S.

at 690. It is fair to say that in the present case, trial counsel did their best under the

circumstances. This issue is without merit.

E. Allowing Hughes to Testify in His Own Behalf.

¶16. Hughes submits the affidavit of a psychologist who opines that Hughes should not have

been allowed to testify because of his diminished mental capacity. The decision to call a

witness is generally considere d a matter of trial strategy. M arler v. Blackburn

, 777 F.2d

1007, 1010 (5th Cir. 1985). It should also be remembered that Hughes had a constitutional

right to testify in his own behalf. C ulberson v. State

, 412 So. 2d 1184 (Miss. 19 82). Prior

to trial, Hughes was evaluated at the direction of the circuit court, and it was determined that8

despite his low verbal score, Hugh es had a full scale IQ of 81. Hughes is not mentally

retarded, and the decision to have him testify must be regarded as strategic. This issue is

without merit.

F. Failure to Object to Admission of Prior Felony Conviction.

¶17. Hughes was previously convic ted in Arkansas of raping a seven year-old child. Hughes

was nineteen at the time of that offense. Hughes argues that this prior conviction was

improperly introduced as an aggravating circumstance and that trial counsel was deficient in

failing to object. Miss. Code Ann. § 99-19-101(5)(b) (Rev. 2000) specifically provides that

a prior conviction of a capital offense or felony involving the use and/or threat of violence

shall constitute an aggravating circumstance for consideration by the jury in imposing the death

penalty.

¶18. The crux of Hughes' argument is that the prior conviction was not a crime of violence.

Hughes was convicted of raping a mino r under the age of 14 pursuant to former Ark. Stat. Ann.

§ 41-1803 which was repl a ced in 1993 by Ark. Code Ann. § 5-14-03. The Arkansas habitual

offender statute deems convictio ns under § 5-14-03 to be crimes of violence. Ark. Code Ann.

§ 5-4-501(C)(a)(v) (Supp. 2001). A prior conviction from another state must be analyzed

under Mississippi la w to determine whether it is one of violence. H olland v. State

, 587 So.

2d 848, 874 (Miss. 1991).

¶19. Although there may be instances of consensual, nonviolent sex which nonetheless

violate th e statutory rape laws, such is not the case here. Hughes was nineteen, and his victim

was seven years old. Consent was not an issue, and Hughes' prior crime must be viewed as one

of violence sufficient to be used as a n aggravating circumstance pursuant to Miss. Code Ann.9

§ 99-19-101(5)(b) (Rev. 2000). This issue is completely without merit, and it follows that the

claim of ineffective assistance of counsel is likewise witho u t merit. The "[f]ailure to raise

meritless objections is not ineffective lawyering." C lark v. Collins

, 19 F.3d 959, 966 (5th C ir.

1994).

G. Failure to Object to Jury Instruction on Habitual Offender Status

.

¶20. Hughes argues that the circuit court erred in finding that he was a habitual offender in

instructing the jury that he would be sentenced to life without parole if the death penalty was

not imposed. First, Hughes was a habitual offender. The circuit court conducted a hearing on

November 20, 1996, a t which the State introduced certified copies of his prior felony

convictions for rape and child fondling. It has already been determined that the rape conviction

in Arkansas constituted a crime of violence.

¶21. Second, a jury should be in structed that a defendant's habitual offender status makes him

i neligible for parole as this information provides the jury with "all possible re levant

information about the individual defendant whose fate it must det ermine." T urner v. State

, 573

So. 2d 657, 674 (Miss. 1990) ; see also Berry v. State

, 575 So. 2d 1 (Miss. 1990) (jury should

have been informed that defendant was a habitual offender who was inel igible for probation or

parole before dec iding whether to sentence him to life imprisonment or death). This issue is

without merit. It follows that the claim of ineffective assistance of counsel for failure to

object to the jury instruction is likewise without merit.

H. Failure to Submit Sufficient Mitigating Evidence.

¶22. Hughes argues that trial counsel could have introduced more testimony in mitigation

at the sentencing phase of the trial. Hughes presents the affidavits of family members who10

assert that they could have test ified as to the conditions and circumstances surrounding

Hughes' childhood. Trial counsel presented a case in mitigation that included the defendant,

William Ray Hughes; his older bother , Edward Hughes; and, his younger bother, Walter

Hughes. There is nothing in the affidavits which Hughes now presents that seems at all likely

to have changed the outcome at sentencing had it been presented to the jury in the form of live

testimony.

¶23. Hughes also contends that trial c ounsel should have developed more evidence to show

that he (Hughes) was me ntally retarded. As previously discussed, Hughes was evaluated at the

State Hospital prior to trial and found to possess a full scale IQ of 81. Hughes is not mentally

retarded. Trial counsel did what he could at the sentencing phase and asked the jury to be

merciful. Hughes did not receive ineffective assistance of counsel. This issue is without

merit.

I. Failure to Object to Prosecutorial Conduct.

¶24. Hughes a sserts that the prosecution incorrectly told the jury that they (the jurors) could

not exercise sympathy in their d eliberations and that the prosecution improperly argued that

he (Hughes) would get to ask for mercy whereas the victim's family would not. Hughes also

contends that the prosecutor improperly argued to the jury that he (Hughes) had failed to

accept responsi

bility for his actions. Hughes follows these assertions with the claim that trial

counsel failed to object during closing argument when these statements were made.

¶25. The record shows that Hughes has taken the p rosecutor's remarks out of context. The

transcript reveals clearly that the jury was not inhibited from considering mitigating evidence.

Rather, the jury was simp ly encouraged to render rationally and calmly a lawful decision free11

of sympathy, bias and prejudice for either side. This language has previously been approved

for use in jury instructions. Evans v. State

, 725 So. 2d 613, 690-91 (Miss. 1997).

¶26. With regard to the stat ement concerning the inability of the victim's family to plead for

her life, a prosecutor is allowed considerable latitude i n his closing argument, C onner v.

State

, 632 So. 2d 1239, 1276-77 (Miss. 1993), including those occasions where a prosecutor

makes inferences and deductions as to whether the victim begged for her life. D avis v. State

,

684 So. 2d 643, 655-56 (Miss. 1996). The federal constitution does not prohibit the

introduction of evidence concerning the background and character of the victim or the impact

of the crime on the victim's family. Hansen v. State , 592 So. 2d 114, 147 (Miss. 1991).

¶27. Hughes furt

her contends that he was prejudiced when the prosecutor stated that he

(Hughes) had failed to take responsibility for his actions. Hughes argues that this was an

impermissible comment on his decision to go to trial rather than plead guilty although the

record hardly allows such a conclusion. "Total and complete failure on his part to accept

responsibility. You know, that's the first step before someone is entitled to mercy, at least in

my view."

Hughes had already been found guilty by the jury yet he still maintained his

innocence during the sentencing phase. This is clearly a personal observation by the

prosecutor made during closi ng argument and not an impermissible comment concerning

Hughes' decision to exerc ise his constitutional right to trial. This issue is without merit, and

trial counsel committed no professional error in failing to object during closing argument.

J. Failure to Challenge the State's DNA Evidence.

¶28. Hughes filed a supplemental brief in which he again argued that trial counsel's

performance wa s deficient for failure to adequately challenge the State's DNA evidence.12

Hughes contends that he was not provided discovery material necessary to contest the State's

case. As previously discussed, the matter was argued at trial and on direct appeal. Despite

Hughes' attempt to re cast the issue as one of ineffective assistance counsel, it is still

procedurally barred from collateral review pursuant to Mis s

. Code Ann. § 99-39-21(3) (Rev.

2002).

K. Cumulative Error.

¶29. Where there i

s no error in any one of the alleged assignment of errors, there can be no

error cumulatively. D avis v. State

, 6 60 So. 2d 1228, 1261 (Miss. 1995); W ilburn v. State

,

608 So. 2d 702, 705 (Miss. 1992) (where there is no reversible er ror in any part, there is no

reversible error to the whole). Thus, even on the merits, this issue fails to make a prima facie

showing of ineffective assistance of counsel. S ee Foster v. State

, 687 So. 2d 1124, 1141

(Miss. 1996).

II. SEARCH AND SEIZURE.

¶30. Hughes argues that no consent was given either for the searc h of his home or for the

acquisition of DNA samples. This issue was raised and rejected at both trial and on direct

appeal. The record clearly shows that Hughes signed a written consent and waiver of rights

prior to the search. On appeal, we found that it was within the trial judge's sound discretion to

find that Hughes' consent was voluntary. H ughes

, 735 S o. 2d at 262. The matter is therefore

proc edurally barred from further consideration on collateral review. Miss. Code Ann. § 99-39-

21(3) (Rev. 2002).

III. ACTUAL INNOCENCE.13

¶31. Hughes asserts that, if he i s allowed to conduct further discovery, there will be evidence

and testimony to prove his innocence. Miss. Code Ann. § 99-39-7(5) (Rev. 2002) requires a

pet itioner for post-conviction relief to make a substantial showing of the denial of a state or

federal right. This bald assertion of innocence fails to make such a showing. The issue is

without merit.

IV. MENTAL RETARDATION.

¶32. In Atkins v. Virginia

, 536 U.S. 3 04, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), the

United States Supreme Court held that the execution of mentally retarded inmates amounted

to cruel and unusual punishment and was therefore prohibited by the Eighth Amend ment. The

Court also noted, "Not all people who claim to be mentally retarded will be so impaired as to

fall within the range of mentally retard ed offenders about whom there is a national consensus."

Id. at 317. The A tkins majority cited two similar definitions of "m ental retardation." The first

was that of the American Association on Mental Retardation (AAMR):

Mental retardation refers to substantial limitations in present functioning. It is

characterized by significantly subaverag e intellectual functioning, existing

concurrently with re lated limitations in two or more of the following applicable

adaptive skill areas: communication, self-care, community use, self-direction,

he alth and safety, functional academics, leisure, and work, Mental retardation

manifests before age 18.

Id. at 308 n.3, citing Mental Retar dation: Definition, Classification, and Systems of Support

5 (9th ed.1992). The second definition comes from the American Psychiatric Association:

"The essential feature of Mental Retardation is significantly subaverage general

intellectual functioning (Criterion A) that is accompanied by significant

l imitations in adaptive functioning in at least two of the following s kill areas:

communication, self-care, home living, social/interpersonal skills, use of

community resources, self-direction, functional academi c skills, work, leisure,

health, and safety (Criterion B). The onset must occur before age 18 years14

(Criterion C). Ment al Retardation has many different etiologies and may be seen

as a final common pathway of various pathological processes that affect the

functioning of the central nervous system.

Id. citing " Diagnostic and Statistical Manual of Mental Disorders 39 (4th ed.2000).

¶33. Prior to trial

, the circuit court ordered that Hughes undergo a forensic mental

evaluation to determine whether or not Hughes had "sufficient present ability to consult wi t h

his attorneys with a reasonable degree of rational understanding in the preparation of his

defense" and whether, at the time of the offense, Hughes "had the ability to know and

understand the nature and quality of his acts." In the fall of 1996, Hughes was transported to

the Mississippi State Hospital at Whitfield where he was examined by clinic al psychologist,

W. Criss Lott, Ph. D. A social worker also obtained background information from three of

Hughes' relatives:

Carolyn Sue Ingle, his older sister; Mr. Massey, an uncle by marriage; and,

Mrs. M assey, his paternal aunt. Additional information reviewed in preparing the evaluation

included the records of the Mental Health Services division of the Arkansas Department of

Hu man Services. Dr. Lott considered Hughes' past psychiatric history which included a 1980

evaluation by Dr. A.F. Rosendale, M.D., who opined, "It is the opinion of the examining

psychiatrist that William R. Hughes is not mentall y ill to the degree of legal irresponsibility

at the time of this examination and probably was not at the time of the commission of the

alleged offense." Hughes was 20 years old at the time of this evaluation.

¶34. Dr. Lott also revi ewed correspondence dated March 26, 1981, from the Central

Arkansas Mental Health Services concerning a two-month psychological e valuation of Hughes.

Social worker Sharon K. Chudy r eported, "The psychological evaluation revealed William is

functioning within the bord erline range of intelligence and appears to be socially retarded."15

In addition to Dr. Lott's own examinat ion of Hughes, the State Hospital performed the

following psychological tests: the Wechsler Adult Intelligence S cale-Revised; the Wide Range

Achievement Test; the Mini-Mental State Examination; the Minnesota Multiphasic Personality

Inventory-2; the Million Clinical Multiaxial Inventory-II; the M Test; the Substance Abuse

Subtle S creening Inventory; and, those items assessing antisocial traits on the Structured

Clinical Interview of the DSM-III-R. The test revealed that Hughes possessed a verbal IQ of

72, a performance IQ of 94, and full scale IQ of 81. H ughes was 36 years old at the time of

this evaluation.

¶35. The tests also revealed that Hughes was not malingering but that he "grossly

exaggerated" symptoms of psycho-pathology. Based on the review of all pertinent background

information available as well as the results of the psychological testing, Dr. Lott's forensic

opinion concluded that "to a reasonable degree of psychological certainty, that Mr. Hughes was

not suffering from a severe mental illness at the time of the alleged offenses."

¶36. In order to obta in an evidentiary hearing before the trial court, this Court requires the

petitioner to first present an affidavit from at least one qualified expert, who opines to a

reasonable degree of certainty that: (1) the defendant has a combined Intelligence Quotient

("IQ") of 7 5 or below, and; (2) in the opinion of the expert, there is a reasonable basis to

believe that, upon further testing, the de f endant will be found to be mentally retarded. Chase

v. State

, 873 So.2d 1013, 1029 (Miss. 2004). This Court has noted that, consistent with

Atkins

, mental retardation is not determin ed by IQ alone. F oster v. State

, 848 So.2d 172, 175

(Miss. 2003). Further, "common sense dictates an individual's motivation at the time of testing16

is a factor to be considered when assessing test results. S tate v. Dunn

, 831 So.2d 862, 887 n.9

(La. 2002).

¶37. In the present case, Hughes p resents the affidavit of Daniel H. Grant, Ed. D. Grant is

a licensed psychologist in the State of Georgia. His career reflects experience as a school

psychologist and as a

counselor in drug-rehabilitation programs. Grant states that he tested

Hughes in May 2001 and found him to possess a verb al IQ of 65, a performance IQ of 69, and

a full scale IQ of 64. Hughes was 41 years old at the time of this evaluation. Grant concluded

that all of Hughes' score s fell within the "mildly deficient" range and opines that Hughes is

"mildly mentally retarded." Grant also asserts that Hughes lacks normal adaptive skills and that

his condition set in prior to the age of 18 based on Hughes' failing grades in high school.

¶38. Grant su

bmitted a similar affidavit for William L. Wiley. Like Hughes, Wiley had also

been p reviously evaluated and had scored higher on IQ tests which resulted in the conclusion

that he (Wiley) was only borderline men tally retarded. This Court found Grant's affidavit in

that case insufficient to warrant an evidentiary hearing because: (a) the affidavit relied

exclusively on school records for the proposition Wiley's mental condition predated his 18th

birthday, and (b) the record indicated that Wiley possesse d significant adaptive skills, i.e.,

sustained employment, military service, and school attendance witho ut special education

classes. Wiley v. State

, 2004 WL 1902428 (Miss. 20 04). The State noted that Grant's

curriculum vitae included certification fr om the American Board of Forensic Examiners, an

organization that was sharply criticized as a certification mill in an article entitled "E xpertise

to Go" written by Mark

Hansen which appeared in the American Bar Association's eJournal in

February 2000.17

¶39. In the present case, the record shows that Hughes consistently received failing grades

in high school before he dropped out. The record does not indicate that he was in special

education classes. Further the record indicates that Hughes was a conscientious and reliable

employee. This was even noted by the trial judge during a suppression hearing. The State

points o ut that an affidavit from his employer indicates that Hughes was a model employee.

Interestingly, Grant says that H ughes' ability to perform unskilled labor without supervision

is further proof of his retardation as is his ability to adapt to prison life. Overall, Hughes'

adaptive skills seem rather similar to those of Wiley and there is no record of mental

assessment of Hughes during his juvenile years.

¶40. Hughes has technically complied with the requirement s for an evidentiary hearing under

Chase

. Notwithstanding the technical compliance, the evidence of record in this case

overwhelmingly belies the assertions that Hughes is mentally retarded.

¶41. A reviewing court must be able to review all evidence of record in determining whether

an evidentiary hearing is necessary. As we similarly held in Wiley v. State :

As stated previo usly, mental retardation is defined as

significantly sub-average general intellectual functioning

accompanied by significant limitations in adaptive functioning in

two skill areas, the onset of which occurred b efore age 18. At

best, Wiley and his experts allege bor derline mental retardation.

Wiley also asserts significant limitations in adaptive functioning.

However, the affidavits, testimony and statements of Wiley and

his friends and family, overwhelm i ngly dispute such an assertion.

Wiley asserts that t

he onset of his mental retardation occurred

before age 18. However, Wiley was first tested in 1987 when he

was almost 33 years old. Wiley argues that his school records

establish manifestation be f ore age 18. We find that Wiley's

school records are not sufficient to establish menta l retardation.

Further, we find that the over whelming weight of the evidence

resolves the issue of borderline intelligence and shows that18 Wiley was not menta l ly retarded before age 18. The record

shows that Wiley was a normal, pro ductive citizen, who was

never characterized as "mentally retard ed" until such time as

being mentally r

etarded became critically important in the

realm of post-conviction relief.

Wiley v. State , 2004 WL 1902428, at *6 (emphasis added).

V. APPEARANCE BEFORE THE JURY IN SHACKLES.

¶42. Hughes' second supplemental issue alleges that he was denied due process because he

was seen at some po int by jurors while still shackled. The State correctly notes that the

presence of a defendant in restraints does not by itself warrant a mi strial or reversal.

Alexander v. State

, 7 59 So. 2d 411, 418 (Miss. 2000). A brief and inadvertent exposure to

jurors of defen

dants in handcuffs is not so inherently prejudicial as to require a mistrial, and

defendants bear the burden of affirmatively demonstrating prejudice. U nited States v.

Diecidue

, 603 F.2d 535 , 549 (5th Cir. 1979). Further, the issue was capable of determination

both at trial and on direct appeal such that it is now procedurally barred from consideration.

Miss. Code Ann. § 99-39-21(1) (Rev. 2002).

VI. JUROR DISHONESTY

¶43. Hughes presents the affidavit of a third party who claims tha t one of the jurors heard

another juror say th

at she had been raped as a child. The juror interviewed by the third party

affiant was unsure of the other juror's identity. Miss. Code Ann. § 99-39-27(5) (Rev. 2002)

provides as follows:

Unless it appears from the face of the application, motion,

exhibits and the prior record that the claims presented by such are

not procedurally barred under Section 99-39-21 and that they

further present a substantial showing of the d enial of a state or19 fede ral right, the court shall by appropriate order deny the

application.

The affidavit submitted by Hughes constitutes double hearsay and otherwise fails to make the

required substantial showing of the de nial of any right guaranteed by the state or federal

constitutions. This issue is without merit.

CONCLUSION

¶44. For these reasons, we deny the application of William Ray Hughes for leave to seek

post-conviction collateral relief in the circuit court.

¶45. APPLICATION FOR LEAVE TO FILE PETITION FOR P OST-CONVICTION

RELIEF, DENIED.

SMITH, C.J., AND EASLEY, J., CONCUR. DICKINSON, J., CONCURS IN PART

AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY COBB,

P.J. DIAZ, CARLSON, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

DICKINSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶46. William Ray Hughes has been found guilty of rape and murder, and he has presented

nothing which

persuades me that the conviction should be vacated. With respect to the

conviction, the majority’s analysis of each issue raised by Hughes is, I believe, correct.

¶47. This case is before us today because, three years after Hughes’s appeal was denied, the

United States Supreme Court, in A tkins v. Virginia

, 536 U.S. 304, 122 S.Ct. 224 2, 153 L.Ed.

2d 535 (2002), made a significant change in the law which directly affects whether Hughes

may be sentenced to death. Prior to the A tkins decision in 2002, it was lawf ul and

constitutionally acceptable to execute mentally retarded crimina ls. However, the A tkins20

majority decided that such executi o ns were unconstitutional, even for criminals who had

already been convicted, but not yet executed. This created an extremely difficult task for the

appellate courts thro ughout the Country, particularly since we were provided virtually no

guidance from the A tkins Court in determining the procedure and guidelines for the

determination of mental retardation with its resulting exemption from the death penalty.

¶48. The difficulty created by A tkins for cases where criminal defendants with credible

claims of me ntal retardation were sentenced to death prior to A tkins

, should be obvious.

These defendants, a nd their counsel, were unaware that mental retardation would, in the future,

prevent their execution. Thus, prior to A tkins

, the trial courts did not conduct hearings to

determine whether defendants were mentally retar ded and therefore exempt from execution.

Instead, trial courts held hearings on the very different question of whether a defendant was

incapable of assisting in his or her defense. Also, prior to Atkins , juries made the

determination of whether a defendant was criminally in sane; that is, not guilty by reason of

insanity. Neither of these pre- A t kins determinations answered the question of whether a

defendant was mentally retarded. Thus, for defendants whose trials were completed prior to

Atkins

, we

found ourselves needing the answer to a question which had never been presented

to the trial court or jury. Is this defendant mentally retarded and, thus, exempt from the death

penalty?

¶49. In the case before us today, no court has ever made a determination of whether Hughes

is mentally retarded. The question has not even been asked before. Thus, we must either order

a hearing for the factual determination of whether Hughes is mentally retarded, or decide the2 These are among the reasons given by the United States Supr eme Court majority for

their decision to exempt mentally retarded persons from the death penalty.

21 factual question ourselv e s. The majority erroneously chooses to become a finder of fact and

decide the question here.

¶50. It is my belief however that, except in unusual and limited circumstances (none of which

are present here), this Cour t does not sit as a finder of fact, but as an appellate court of limited

jurisdiction. Miss. Const. art. 6, §146. S ee also Brown v. Sutton

, 158 Miss. 78, 121 So. 835

(1929). Thus, I believe the trial court, not this Court, should conduct the hearing. I therefore

respectfully dissent, only to so much of the majority opinion as prevents a hearing on the

question of mental retardation. If Hughes is mentally retarded, the United States Supreme

Co urt has held that he may not be sentenced to death. If he is not found to be mentally

retarded, his execution will not violate Atkins

.

¶51. I should n

ote at the outset my disagreement with the majority’s opinion in A tkins , and

my agreement with the di ssents penned by Chief Justice Rehnquist and Justice Scalia, which

provide that mental retardati on is no indication that a person is incapable of discerning right

from wrong

– certainly not in the “not guilty by reason of insanity” sense

- - and incapable of

expressing emotion and remorse when providing testimony in mitigation of the death penalty.

To me, it is somewhat demeaning to mentally retarded persons, in gener a l, to assume that they

are incapable of feeling and expressing emot ion and remorse, and that they don’t make good

witnesses. 2 I find most mentally retarded persons to be quite capable of expressing emotion,

feelings, affection and ideas.3 This factual conclusion that Hughes is not mentally retarded has been reached by the

majority without benefit of a single professional opinion to that effect.

22 ¶52. That said, I must recognize that the majority in A tkins has held that we may not execute

mentally retarded persons, regardless of the facts and circumstanc es of their crime. And so

long as Atkins re mains controlling law from the United States Supreme Court, we must follow

it.

¶53. It should be made clear that I do not claim Hugh es is mentally retarded; nor am I

expressing an opinion that he should not be executed. I simply recognize and believe that we

are constitutiona lly required to order the circuit court to hold a hearing and make the

determination.

¶54. The majority does not (nor could i t) conclude that Hughes has not complied with all

requirements set forth by this Court in Chase v. State

, 873 So. 2d 1013 (Miss. 2004), for a

hearing on the question of mental retardation. Were we to follow A t kins and our holding in

Chase

, Hughes would have a hearing. The majority fails to explain why it refuses to follow

Chase

, except to say that the “record in this case belies the assertions that Hughes is mentally

retarded.” In other words, the majority has made the factual determination, from the record,

that Hughes is not mentally retarded

. 3 I will now proceed to examine that same record which,

in my view, hardly “belies the assertions that Hughes is mentally retarded.”

¶55. I t bears repeating that I am not looking to determine whethe r Hughes is mentally

retarded; rather, I am only looking to see if a sufficient factual question has been raised which

would justify a hearing.

Professional Opinions.23

¶56. The record reflects four professional opin ions. One expresses a clear, unambiguous

opinion that Hughes is mentally retarded. One says he is “socially retarded,” but expresses no

opinion concern

ing mental retardation. The other two express no opinion on the question of

mental retardation.

¶57. W. Criss Lott, Ph. D., found, "to a reasonable degree of psychological certainty, that Mr.

Hughes was not suffering from a severe menta l illness at the time of the alleged offenses."

While this may be true, Dr. Lott never provides any opinion as to whether Hughes is mentally

retarded. He found only that Hughes was not suffering from a severe mental illness. “Severe

mental illness” is certainly not synonymous with “mentally retarded.”

¶58. A.F. Rosendale, M.D., opined, "It is the opinion of the examining psyc hiatrist that

William R. Hughes is not m entally ill to the degree of legal irresponsibility at the time of this

examination and probably was not at the time of the commission of the alleged offense."

Again, “mentally ill” does not mean “mentall y retarded.” Dr. Rosendale expressed no opinion

concerning mental retardation.

¶59. Sharon K. Chudy, social worker, evaluat ed Hughes and reported, "The psychological

evaluation revealed William is functioning within the borderline range of intelligence and

appears to be socially retarded." It is unknown whether Chudy’s definition of “socially

retarded” includes “mental retardation.” Chudy expressed no opinion as to whether Hughes is

mentally retarded.

¶60. Daniel H . Grant, Ed. D., evaluated Hughes and reported that, in his opinion to a

reasonable degree of psychological certainty, Hughes is mildly mentally retarded.4 Magazine articles are seldom accepted by this Court as authority.

5 So long as Dr. Grant qualifies as an expert under the requiremen ts of Chase and M.R.E.

Rule 702 ( which he does), we should not inquire further, but leave the credibility question to

the sound discretion of the trial court.

24 ¶61. Thus, the only professional opinion before this Court on the question of whether

Hughes is mentally retarded comes from Dr. Grant, who states, to a reasona ble degree of

psychological certainty, that he is.

¶62. The majority appears to question Dr. Grant’s credibility by poin ting out that one of

his

certifications comes from an organization criticized as a “certification mill.” The authority

cited for this claim is an a rticle in a magazine. 4 We are not provided the name of the author.

While I do not believe it is appropriate for this Court to engage in eva luation of Dr. Grant’s

credentials, 5 they should now be fully set forth in response to the majority’s implication that

he is not credible.

1. Dr. Grant is licensed as a psychologist by the State of Georgia, and is

board certified as a neuropsychologist by the American Board of

Professional Neuropsycho logy. He is also a board certified forensic

examiner and a Fellow of the American Colleg e of Forensic Examiners.

2. Dr. Grant worked for almost fifteen years as a contract a consultant for

the Diagnostic Unit of the Coastal Correctional Institution in Georgia,

where he assessed approximately 2,500 inmates, the major ity of which

had IQ’s below 80. He made recommendations regarding their adaptive

skills.

3. Dr. Grant worked for five years as a school psychologist, where he

assessed students for special education classes.

4. Dr. Grant worked over three years on contr act with the Georgia

Department of Juvenile Justi ce as a consultant, providing assessments of

adaptability and treatment.25

5. In addition to his graduate and post-graduate studies in psycholog y and

neuro-psychology, Dr. Grant minored at the docto ral level in the subspeciallties of reading and mental retardation.

¶63. In reaching his opinion in this case, Dr. Grant reviewed all pertinent opinions, records

and test results from other professionals, includ ing hearing and trial testimony. He further

reviewed Hughes’s school rec o rds and institutional records from the Mississippi State

Penitentiary at Parchman and the Arkansas State Hospital, including treatment notes.

¶64. In addition, Dr. Grant tested Hug hes over a two-day period. He spent approximately

eleven hours with Hughes, complet ing his evaluation. He spent an additional ninety minutes

reviewing Hughes’s Parchman prison records.

¶65. Dr. Grant is certainly, in m y opinion, qualified to render opinions in this case. Whether

his opinions are persuasive should be left to the trial court at a hearing.

School Performance and Academic Skills.

¶66. The majority recognizes that “the record shows t hat Hughes consistently received

failing grades in high school before he dropped out.” To amplify Hughes’s poor school record

a bit, I think it only fair to point out that when Hughes was thirteen years old w hen in the fifth

grade with students who were ten years old, and he was seventeen when he was in the eighth

grade with students who were thirteen years old.

¶67. Also, I think it o nly fair to supplement the majority’s statement, “The record does not

indicate that he was in special education clas ses.” That he was not actually in special education

classes means little, consid ering that the record reflects he would have qualified for special

education classes, but his father refused to allow it.26

¶68. We are provided with Hughes's scores from the Ka ufman Functional Academic Skills

Test. He achieved “a standard score 58 (comparable to an IQ score) and a percentile rank of

less than 1 (in other words, more than 99 percent of the people taking this test within his age

range scored better than him). He also scored a 58 functional reading skills standard (less than

one percentile). His reading recognition score on the WRAT-3 (Wide Range Achievement

Test

- revision three, was 4 9 “with a corresponding grade score of 2.1, and a spelling standard

score of 51 with a corresponding grtade score of 2.1" These scores are expected of secondgraders.

IQ Testing.

¶69. Dr. Grant administered an extensive battery of tests to determin e whether Hughes met

the threshold for mental retardation. Some of the significant excerpts from Dr. Grant’s

affidavit are, as follows:

Mr. Hughes' performance on the Wechsler Adult Intelligence Scale - third

edition (WAIS-III) yielded a v erbal IQ of 65

, (placing him at the 1 percentile),

performance IQ o f 69 , (placing him on the 2 percentile), and a f ull-scale IQ

of 64

, (placing him at the 1 percentile). His performance also yielded the

following index scores: verbal comprehension index of 65 (lowest 1

percentile); perceptual organization index of 70 (lowes t 2 percentile);

working memory index of 65 (lowest 1 percentile); perceptual spe ed index

of 8l (lowest 10 percentile). This means there was not a significant difference

between his verbal and performance intelligence scores, whic h indicates both

skills are fairly evenly developed.

All of Mr. Hughes scores on the WAIS-II I fall within the mildly deficient range

( which is the equivalent of mild mental retardation) , with the exception of

his score on the perceptual speed index. The perceptual speed index, however,

does not measure reasoning and thinking; it measures perceptual speed and

accuracy.27

William Ray Hughes's performance on the intellectual measures indicated that

98 to 99 percent of the population scored higher than he on the Wechsler

Adult Intelligence Scale - third edition

.

Mr. Hughes was also administ e red the Comprehensive Test of Verbal

Intell igence (CTONI) This test is a comprehensive measure of n onverbal

intelligence

. Nonverbal intelligence refers to those abilities that are

independent of language and that enhance a person a bility to function

i ntelligently. It is essentially a measure of nonverbal reasoning and of nonverbal

problem solving. William Ray Hughes had a p ictorial nonverbal IQ score of

55

, a geometric no nverbal IQ score of 66 , and a n onverbal IQ score of 57

. His geometric nonverbal IQ score is a percentile rank of 1; the other two scores

are less than a 1percentile rank. This means that 9 9 percent or more of the

population performed bette r between William Ray Hughes on these tests.

(Emphasis added).

¶70. Additionally, Dr. Gr ant found these test results to be consistent with those reported in

a psychological interview prepared by Vickie Jenkins, an employee of the Mississippi

Department of Corrections. Jenkins reported Hughes had an IQ of 67.

¶71. Although the test results and opinions provided by Dr. Grant are enough to require a

hearing, there is more. Dr. Grant states that “[t]he diagnosis of mental retardation involves

three prongs: significantly sub-average intelligence; related limitat i ons in two or more adaptive

skills; and the presence of such sub-average intelligence an d limitations prior to the 18th

birthday.” Having evaluated the intelligence prong, Dr. Grant moved to the adaptive skills, and

stated: “I believe, to a reason able degree of professional certainty, that William Ray Hughes

is significantly deficient in at least two areas of adaptive f unctioning.” Having stated that

Hughes meets the test we require under C

hase

, Dr. Grant explained how he reached his

conclusions:28

Two of the areas of adaptive behavior that I asses sed, and in which William Ray

Hughes is significantly deficient, are communication s kills and functional

academics.

William Ray Hughes' performance on the Kaufman Functional Academic Sk ills

Test yielded a standard score of 58 (comparable to an IQ score ) and a

percen tile rank of less than 1(in other words, more than 99 percent of the

people taking this test within his range scored better than him). He achieved a

functional reading skill standard of 58 and percentile rank of less than one

percent. His composite standard score on the f unctional skil ls test was 55

with a percentile rank of less than one percent. His performance on the Wide

Range Achievement Test

- revision three (WRAT-3) yielded a reading

recognition standard score of 49 w ith a corresponding grade score of 2.2, and

a spelling standard of 51 with a corresponding g rade of 2.1. Stated simply, he

has the reading recognition and spelling abilities expected of someone in the

second grade. His arithmetic performance yielded a s tandard score of 60 with

a grade score of 3.6. His perf ormance on all of the tests making up the WRAT-3

fall within the mildly deficient/mentally retarded range.

His communication skills were assessed by administering the Oral and Written

Language Scales (OWLS), an d the Expressive Vocabulary Test (EVT). Mr.

Hughes' pe rformance on the OWLS yielded a listening comprehension standard

score of 61, and oral expression s tandard score of 60

, and an oral composite

standard score of 58

. Listening comprehension scale items include lexical,

syntactic, and supra linguistic skills. Categories of oral expression scale items

include lexical, syntactic, and supra linguistic skills. Categories of oral

expression scale items included lexica l, syntactic, pragmatic and supra linguistic

skills. The expressive vocabulary test measures an individual's ability to give a

synonym for a provided word. Mr. Hughes' performance on this test yielded a

standa rd score of less than 40 , indicated a significant deficit in this skill, even

for an individual of his level of intelligence.

I administered the Independent Living Scales to Mr. Hughes. His performance

on this test indicates significant deficits on the following subtests: managing

money; managing home and t ransportation; health and safety; and social

adjustment. William Ray Hughes' full-scale standard score (comparable to IQ

score) on the Independent Living Scales was 66 , which is v ery consistent

with his full-scale IQ of 64 on the WAIS-III

. Individuals who score within his

range are not usually recommended for independent living.

(Emphasis added).29

¶72. Dr. Grant next evaluated Hughes's academic records to determine whether the mental

retardation manifested prior to age eighteen. He stated:

Review of Mr. Hughes' academic records revealed repeated social promotions.

It reveals that he w as 13 years old in the fifth grade and 17 years old when he left

in the eighty grade. It also indicated that he repeated several grades, and that

e ven though he failed a grade he was socially promoted into the next grade. In

interviews with

his siblings, the undersigned learned that they believed that he

probably should have been in special education clas s es but their father would

never have a llowed it. Review of his educational records and his academic

performance is consistent with an individual who is mildly mentally retarded.

It is my opinion

that he would have qualified for special education classes. I t

is my opinion, to a reasonable de gree of professional certainty, that

William Ray Hughes experienced such sub-average intelligence and

limitations prior to his 18th birthday.

It is therefore my clinical opinion, to a reasonable degree of psychological

certainty, that Mr. Hughes clearly meets the criteria se t forth in the

Diagnostic and Statistical Manual

- IV, and the 9th edition of the Mental

Retardation Handbook of th e American Association of Mental Retardation

criteria for mild mental retardation. It is my clinical opinion, to a

reasonable degree of psychological certainty, th at William Ray Hughes is

mildly mentally retarded.

(Emphasis added).

¶73. T here is evidence in the record that Hughes scored higher when administered some of

these same tests by another professional. This simply presents us with a conflict in the

evidence of test results. As for professional opinions of whether Hughes is mentally retarded,

there is only one in this record: that he is.

¶74. William Ray Hughes committed a crime which certainly justifies the p enalty of death.

However, if he is mentally retarded

– even sligh tly – the State does not have the right to

execute him under the law, a law we are sworn to uphold, whether we agree with it or not.30

¶75. Is Hughes mentally retarded? Reviewing the test results, hospital notes and opinions

in this case convinces me that I simply am not qualified to an swer the question. But neither

is the majority. There is, at a minimum, sufficient evidence of mental retardation to warrant

a hearing in the trial court on the matter. Should the trial court determine Hughes is not

mentally retarded, his execution will not violate Atkins.

¶76. For the reasons stated herein, I respectfully dissent from this Court’s denial of a hearing

in the trial court on whether Hughes is mentally retarded. I agree, in all other respects, with

the majority.

COBB, P.J., JOINS THIS OPINION.