IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-DP-00504-SCT ALBERTO JULIO GARCIA a/k/a ALBERTO J. GARCIA a/k/a ALBERTO GARCIA

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/25/2017 TRIAL JUDGE: HON. LISA P. DODSON TRIAL COURT ATTORNEYS: JOEL SMITH HERMAN F. COX W I LLIAM CROSBY PARKER LISA D. COLLUMS JASON McDONALD PAYNE ANGELA BROUN BLACKW ELL BILLY EDW ARD STAGE COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ALISON R. STEINER ANGELA BROUN BLACKW ELL ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CAMERON LEIGH BENTON DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL DISPOSITION: AFFIRMED - 05/14/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.
MAX WELL, JUSTICE, FOR THE COURT:¶1. Af

ter a twelve-hour search, police f ound the dead body of a m issing f ive-y ear-old girl.
Her body was l ocated in a f ilthy , abandoned t railer f

if ty y ards f r om her apartm ent com

plex. She had been sexually assaulted, vaginally and anally , and then h anged by the neck with a pair of s o cks tied to a window crank. T wenty -nine-y ear-old A lberto Garcia, a resident of the

sam e apartm ent com

plex, conf essed to killing the c hild in the course of raping her. Forensic evidence conf

irm e d Garcia’s DNA had been f ound in the child’s vagina and anus. ¶2. On the eve of h is capital-m urder trial, Garcia pled guilty

. He also waived h is right to

a jury a t s ente n c i n g . F o l l o w ing a three-day hearing, the trial judge, the Honorable Lisa Dodson, f

ound two aggravating circum stances—the y oung victim w as killed during the

c o u r s e o f a sexual battery and the nature of the capital of f e n se was especially heinous ,

a trocious, and cruel—outweighed the m itigating f actors of Garcia’s lack o f sign i f i c a n t crim inal history , r elatively y oung age, and dif f icult childhood. Based on these f indings, she sentenced Garcia to death. ¶3. Garcia appeals h i s s e n t e n c e o n l y . 1 Apply ing the heightened scrutiny that a deathpenalty appeal dem ands, we f ind no m erit to Gar c i a ’ s c l a i m s the trial judge erred in her sentencing decision. Because the death penalty is c onstitutional a nd because Garcia’s death

sentence is proportionate to other sentences im posed f or the c apita l mu rder o f a y oung sexual-assault victim , we af f irm his sentence of

death. Facts & Procedural History
I. JT goes m issing and is later found hanged.

1 B ecau se h e p led g u i lty , G arcia h as n o rig h t to ap p eal h is u n d erly in g cap ital-m u rd er co n v ictio n . S

ee M iss. C o d e A n n . § 9 9 -3 5 -1 0 1 (R ev . 2 0 1 5 )

. 2¶4. On the evening of July 16, 2 014, f ive-y e ar-old JT 2 w as r

unning in and out of the patio door o f her a

partm ent, play ing with a neighbor outside. Around 5:30 p.m ., her m other called

to her, but JT did not a nswer. Af ter two hours of searching, JT’s m other called 911. Police, neighbors, and volunteers sy stem atically searched the area through the night. ¶5. At 7:45 a.m . the next m orning, police f ound JT’s half

-naked b ody i n the bathroom of an abandoned trailer approxim ately f if ty y ards f rom JT’s apartm ent. She had been hanged with a pair of socks tied around her neck and f astened t o t he shower window. There were signs of sexual penetration of her vagina and anus. There were also s cratch m arks around her neck showing she had t ried to f ree herself f

rom the m akeshif

t noose bef

ore she died f

rom ligature strangulation.
II. Garcia approaches the police. ¶6. Based on a tip, investigators developed a person of interest—one of

JT’s neighbors in the apartm ent c om

plex, J ulian Casper Gray

. As police searched G ray ’s a p a r t me n t t he evening of July 17 , G a r c i a , Gray ’s f riend and neighbor, engaged t he p olice com m ander in conversation. Because Garcia appeared t o b e volunteering inf o rm ation relevant to the investigation, a detective w ent to Garcia’s apartm ent. H e asked G a r c i a i f h e w ould be willing to speak with investigators at the police station. ¶7. Garcia agreed. On the r ide to the police station, Garcia m entioned that his f i ngerprints

w o u l d l ikely be f

ound in the trailer because h e had b een in the trailer the weekend b e f o r e . At the station, another detective f orm ally interviewed G a r c i a a f t e r reading Garcia his

2 T h is o p in io n ref

ers to th e ch i ld v ictim

b y h er in itials o n ly

. 3Miranda rights and obtaining a waiver. See Miranda v. Arizona , 384 U.S. 436, 444, 86 S.

Ct. 1 602, 16 L. Ed. 2d 6 94 ( 1966) ( requiring that, bef ore a custodial interrogation, the person interrogated be warned he has a right to rem a in silent, that a ny statem ent he m akes m ay

be used as evidence against him , and that h e has a r i g h t to the p resence of an attorney , either retained or appointed). Garcia told the detective he had stolen som e item s f rom the trailer

a f e w day s earlier. So his f

i ngerp r i n ts and possibly DNA would be i n t he trailer. He also

m entioned his sem en m ay be in the trailer because he had m asturbated there while visiting the t railer’s prior o ccupants. Garcia claim ed he had possibly blacked out around t he tim e of
JT’s disappearance and that he woke up with f e ces on his penis and inner thighs. G arcia said

t h e f eces was not his. 3 And h e im m ediately took a shower and washed his clothes. T h e interview ended when Garcia asked f o r a lawy er. 4 ¶8. Based on this inf

orm a tion, police obtained a search warrant f or Garcia’s apartm ent.
I n his bedroom , police f ound a n Xbox 360 gam e c onsole, which w as connected to the internet. A digital f

orensic e xam iner recovered the internet searches m ade on the console in

3 D u rin g h is g u ilty p lea, G arcia ad m itted J T d ef ecated o n h im w h en h e p en etrated h er an u s w ith h i s p e n is.

4 A f ew d ay s later, G arcia r eq u ested a seco n d in terv iew w ith th e sam e d etectiv es. T h is t i m e, h e in sisted h e h ad n o t b lack e d o u t d u rin g th e tim e JT w en t m issin g . H e also b ack track ed f

ro m h is earlier ad m issio n th at h e h ad sh o w ered b ecau se h is p en is an d th ig h s w e re co v ered in so m eo n e else’s f e c e s . I n s t ead , G arcia t o ld th e d etectiv es th at G ray h ad co m e to h is ap a r t me n t ask in g f o r h elp

. G arcia said h e f o llo w ed G r ay t o th e ab an d o n ed trailer w h ere h e f

o u n d JT tied to a ch air in t h e b e d r o o m . G a r cia ad m itted th at h e h elp ed m o v e JT ’s b o d y to th e b ath ro o m , w h ere h e tried to rin se f e ces an d sem en o f

f JT

. G arcia also a d mi t t ed u sin g th e so ck s tied aro u n d JT t o h an g h e r b y th e cran k o n t h e w in d o w . D u rin g th is in terv iew , G arcia in sisted h e h ad n o t s ex u a lly assau lted JT

. H e ex p l ain ed , h o w ev er, t h at h is s em en w as p o ssib ly o n JT ’s b o d y b ecau se w h en G r ay cam e to h is ap artm en t, G arcia h ad j u st f i n ish ed m astu rb atin g an d h ad n o t w ash ed h is h an d s b ef o re g o in g to th e trailer. 4the day s l eading up to JT’s rape and m urder

. T h e s e s earch phrases included “toddler hentai,” 5 “poor little thing,” “kidnapped and raped,” and “virginravisher.” ¶9. Garcia was arrested and held without bond. On October 5, 2015, a grand j ury indicted Garcia f or capital m

urder in the com m ission of f elony sexual battery

. III. Garcia m o ves to suppress his statem ents. ¶10. On July 15, 2016, Garcia m oved to suppress the Xbox search and his statem ents to the police. He c laim ed his apartm ent was illegally searched because he had n ever b een read his
Miranda rights bef

ore being r ecorded in the police car. He suggested his statem ent on the
way to the police s t ation and all his f ollowing statem ents and evidence were “f ruit of the poisonous tree.” Marshall v . State , 584 So. 2d 4 37, 438 (Miss. 1991) (explaining the “f ruit of t he poisonous tree” doctrine—also known as the exclusionary r ule—deem s inadm issible
any evidence obtained incident to an unlawf ul search or seizure (citi n g M u r r a y v. United States , 487 U.S. 533, 536, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988))). ¶11. On July 26, 2016, the trial court held a suppression hearing. Police C om m ander Ken
Brown testif

ied that, on July 17, 2014, d uring the s earch o f Gray ’s apartm ent, he was in the hallway when Garcia approached him and as k e d a b o ut t he investigation. At this point, Garcia was not a person of interest or a suspect. This c o nversation was r elay ed t o Detective Clay Fulks. Detective Fulks, a patrol of f icer in July 2014, f

o llowed up b y going to Garcia’s apartm ent. Garcia volunteered to g o t o t h e police station to provide inf o rm ation. W hile Garcia chose to ride in the back of the police c ar, he was not restr a i n e d

. Detective Fulks

5 A cco rd in g to th e f

o ren s ic e x am i n er, a “ h en tai” is a sex u ally ex p licit an im e o r carto o n . 5activated t he vehicle’s recording sy stem

. During the f if teen-m inute drive, the two engaged in a c asual conversation. B ut at som e point Garcia m entioned that his f ingerprints m ay be f ound in the t r a i l e r w h e r e J T was discovered. Garcia e xplained t hat h e k new the trailer’s f orm er occupants. Detective Fulks testif ied that, at this point, Gar c i a w a s not a suspect. W h en they

arrived at the station, Detective Fulks p arked in the f ront parking lot and not at the sally p ort w here suspects are delivered. Detective Fulks testif ied Garcia was one of three witnesses he transported to the police station during the investigation. ¶12. During Detective F ulks’s testim ony , the State play e d the reco r d i n g o f t h e f ifteenm inute ride to the police station. The trial c ourt ruled the video could com e in as evidence against Garcia. Garcia was not i n custody at the t im e. And it was clear f rom the video that Garcia was the one who started the conversation. He volunteered, without being asked, that his f ingerprints would be f

ound i n the trailer because he h ad been t here j ust day s bef ore,

rum m aging through the prior occupants’ belongings. ¶13. The t rial court a lso ruled that the sea r c h w a r r a nt f or Garcia’s apartm ent had been supported by probable cause—nam ely , the st a t em ent Garcia gave to investigators at the police station af

ter he voluntarily

waived his Miranda r ights. 6
IV. Garcia m o ves to change venue. ¶14. At the sam e July 26, 2016 hearing, the trial court took up G arcia’s m otion to change

venue, w hich he had f

iled July 14, 2016. In his m otion, Garcia argued there was a r easonable

6 In h is reco rd e d in terv iew at th e p o lice s tatio n , G arcia to ld th e d etectiv es th ey w o u ld f in d item s th at G arcia to o k f ro m th e trailer in h is ap artm en t. G arcia w as sep arately ch arg ed w i th b u rg lary

. 6likelihood that a n im partial jury could n ot b e i mp a n e l e d in the First Judicial District of
H a r r ison County

. He asserted the disappearance and d eath of JT was “sensational, f ront

- p a g e

news throughout the Gulf Coast r e g i o n . ” T o support his m otion, he attached copies of various m edia reports, along with af f idavits by three com m

unity m em

bers. See M iss. Code § 99-15-35 (Rev. 2015) (requiring a m otion to change venue b e “supported by the af f idavits of two or m ore credible persons”). ¶15. At the hearing, Garcia, t he S tate, and t he t rial c ourt agreed to the f ollowing procedure: Garcia would pr e s ent his evidence supporting t he m otion, and the State would p resent its evidence opposing the m otion. Then, the ques t i o n o f p r e t rial p ublicity would be put to f ourteen people who had been sum m oned but not selected f or j ury duty f

or a n unrelated trial being h eld that day

. But af ter Garcia and the State presented their argum ents and e vidence, the court learned the ca se scheduled f or trial h ad ended in a g uilty plea, so t here were no jurors to question. Af

ter f urther discussions, Garcia, the State, and the court agreed to def er the rest of the hearing until another m ock jury was available. ¶16. Three weeks l ater, on A ugust 16, 2016, the change-of -venue h earing r e s u me d

. As agreed, t he court brought in thirty prospective jurors who were not seated in an unrelated trial taking place that d ay . They w ere questioned by t he trial judge about their k nowledge of the pretrial p ublicity surrounding JT’s m urder and Garcia’s arrest. Af ter general questions were asked, f ourteen jurors w ere seated and asked additional detaile d q u e s tions by Garcia’s

7counsel and the State. 7 From their responses, the t rial c o u r t concluded that “a f air and im p artial jury

can be seated, given proper and thorough voir dire.” ¶17. The trial court also weighed other f actors—the f

act the case was c a

pital, the lack of evidence o f threats of violence against G arcia, and the m edia coverage , w h ich the court determ ined was not “an inordinat e a mount.” See W hite v. State , 495 So. 2d 1346, 1349 (Miss. 1 986) (enum erating f a ctors that when p resent indicate the presum p tion that a f

air trial

cannot be had in t he jurisdiction where the crim e occurred is irrebuttable). T he court denied Garcia’s m otion to change venue.
V. The trial court considers Garcia’s com p etency . ¶18. On Novem

ber 22, 2016, the trial court heard t estim o ny f rom f orensic psy chologist Dr. Robert Storer on a “possible com petency issue.” ¶19. Af ter evaluating G arcia, Dr. Storer testif ied that, in his expert opinion, Garcia was not

com pe t e n t t o stand trial. W hile G arcia had no intellectual def icits, t here was a “constant them e of anxiety ” in his lif e . Dr. Storer noted t hat Garcia had suf f ered at least o ne panic attack while at court. And if Garcia becam e anxious, D r. S torer o pined, he would be unable

to participate in trial and interact with his attorney s. Dr. Storer also expressed doubt about Garcia’s ability t o m ake rati o n a l d e c i s ions concerning his legal situation. W hen asked, Garcia s aid he would pref er death over a lif

e s e n t e n c e d u e to the solitary conf inem ent of death row. Dr. Storer recom m ended Garcia get l ong-term treatm e n t f or his anxiety , which

7 O n ce seated in t h e j u ry b o x , th ese f o u rteen p eo p le w ere to ld th ey w o u ld n o t serv e as t h e actu al j u ry in G a rcia’s case. In stead , th ey w o u ld b e a s k e d q u estio n s ab o u t p retrial p u b licity so th e co u rt co u ld d e term in e if th e accu s ed w o u ld receiv e a f air trial. 8could be a dm inistered in jail. Dr. Storer opined that thirty day s o f t r e a t m e n t w ould be

enough f o r Garcia to experience a “dif f erent outcom e.” Dr. Storer said he would wait until af ter this treatm ent period was over bef ore com pleting his f

u ll f orensic report. ¶20. The trial j udge then q u estioned Dr. Storer m ore caref ully

. She f

i rst asked if Dr. Storer

was aware tha t t he day of Garcia’s alleged panic attack, Garcia had not been a d m inistered his regular m edication. She also asked if D r. Storer was aware that Garcia had no problem during the court proceedings. Rather, as court r ecessed f or lunch, Garcia told his attorney s that he f elt u ncom f

o rtable. The trial judge then asked Dr. Storer about his earlier com m ent that Garcia had responded appropriately to the questions a s ked by t he court and that Garcia f ully understood what w as going on. D r. Storer reiterated that Garcia’s intellectual f unctioning was f

ine. H e a lso e xpl a i n e d t hat his anxiety d isorder “is not a severe and persistent m ental illness of the t y pe that would alter som eone’s percep t i o n o f r e a lity .” But
Dr. Storer cautioned that Garcia’s anxiety “shuts him down to w here he’s not pay ing attention and listening a nd processing inf orm a tion, a nd he’s n ot able t o ask questions of his attorney s as appropriate or point things out.” ¶21. Finally , the trial judge asked what was illogical o r irrational about Garcia’s pref erring his own jail cell. Bef

ore Dr. Storer answered, the judge interjected, [ L]et m e tell y ou that f

or m any y ears I hav e expressed the o pinion that if I were in t his p osition, I w ould rather have the death penalty than a lif e without [ parole] f or s everal reasons. One of which is that I would h ave m y own cell where no one e lse would be and m y own t hings that no one else w ould bother. I d on’t f ind t hat at a ll irrational. I f ind i t v ery m

uch like thos e w h o p e r h a p s have a lif

e-threatening disease m a ke a choice e ither f or treatm ent or no treatm ent. So tell m e why it’s irrational in this case.

9Dr. Storer re s p o n ded that his c oncern was that Garcia’s decision-m a king ability m ay be

im p acted by his anxi e t y disorder. B ut he could not say to a reasonable d egree of
psy c h ological certainty

that this was so. ¶22. Af ter speaking w ith G arcia, who said he w as “f eeling f i n e ” that d ay , the trial judge

m ade her ruling: [ B]ased o n the testim ony , and of c ourse m y observances of Mr. Garcia, it does not appear to m e that he is in any m anner incom petent in term s o f intellectual f unctioning or his ability

to understand and appreciate what is going on or in f act in his ability to consult with his attorney s. I do have som e question, based on Dr. Storer’s testim ony , w ith regard to if we were to go to trial, how h e would handle that in th e c ourtroom because I do recall t hat a t som e point it was re p o r ted to m e that he w as beginning to experience som e anxiety

on one of

our hearings previously

. It was also reported to m e he had not r e c e i ved his m edication t hat m orning, and the nurse I believe actually traveled here to the courthouse to p rovide him with that. And he did m

uch better and w a s m

u ch m ore r elaxed, insof

ar as m y observations, f

or the portion af

ter the lunch break.
It appears t o m e that clearly he could participate during trial. And I think t hat based o n that, we probably need to f ollow Dr. Storer’s recom m endation in t hat regard and have Mr. Garcia s e e n by whom ever at t he jail can m ake the determ ination as to the appropriate m edication and d eterm ine if , i n f act, they b e l i eve a long-acting m edication would be better than what he is taking o r a dif f erent dose of what he’s taking would be b e t t e r a nd to allow him that 30 day s to g et that, as I unde r s t and it, therapeutic level is what D r. Storer is talking about, and then have Dr. Storer again speak with him i n that regard.
So at this point I f

ind him comp e t e n t but f or that potential issue, and I’ll reserve that issue to see i f in f act the m edication which Mr. Garcia s tates he’s m ore than willing to take because it seem s to m ake h i m f e e l b etter and f unction better, and we’ll see what sort of result that has because I t hink at this point he probably could m a ke it through a trial, and he probably would do all right going through a trial.

1 0But I think it would take a g reat deal of p atience on his part and his attorney ’s

part. It m ight t ake m o r e f requent breaks, et cetera. And on c e we’re i nto the trial, it would b e very dif

f icult at that point. If in f

act he did h ave one of these as attacks and w as u nable to participate, we would be unable to m ove f orward. so I think the better course is to try t o treat this f irst and s ee where we stand in about 30 day s. ¶23. The trial judge concluded the hearing by addressing Garcia directly about his stated pref erence f or the death penalty : Judge: Now, Dr. St orer say s y ou have a pref erence in this case t hat y ou’ve expressed to hi m a b o ut sentencing. I’ve told him an opinion I’ve held f

or som e t im e about sentencing. I d on’t want y ou to be sway ed by

m y opinion one way

or the other. Garcia: No, m a’am . I won’t. Judge: Because I’m not in y our situation. Garcia: I understand, m a’am

. Judge: It’s an academ ic exercise f or m e i n t e r m s of m y y ears of practice, et cetera. So I d o n ’ t w ant y o u to be sway e d by that. I asked him that because I w anted to know really truly wh a t he was thinking on that. Garcia: Yes, m a’am . I understood about that.
VI. Garcia m o ves to ex clude X box searches. ¶24. The f

ollowing m onth, o n D ecem ber 8, 2016, the trial c ourt took up G arcia’s m otion in lim ine to exclude the e xplicit searches on the Xbox 360 based on lack of a uthentication and unf air prejudice. See M.R.E. 901; M.R.E. 403. Garcia argued there w as n o proof he was the one who m ade those internet searches and that the probative value of the evidence was outweighed by

unf air prejudice.

1 1¶25. Detective Sam Jewell testif ied f or the State. He explained t hat while G arcia lived in

a t wo-bedroom apartm ent with another f am ily , 8 t hat f

am ily was out of town the week of JT’s disappearance and death. Dete c t i v e J ewell t estif ied he s e ized the Xbox f rom Garcia’s bedroom , which Garcia did not share with any one. On cross-exam ination, Detective Jewell adm itted i t was possible that another person could h ave used the Xbox the week of July 10- 18, 2014, including J ulian Gray , w h o a t t h e tim e of t he suppression hearing was under indictm ent f

or pos s e s sion of child pornography

. The State also called the digital f orensic

exam iner with the F BI. This exam iner was responsible f or validating the sexually explicit search queries the week of JT’s disappearance and death. On c ross-exam ination, the

exam iner acknowledged that the user nam e f o r the Xbox account was “dum m y ” with no password protection. ¶26. The trial judge denied G arcia’s m otion in lim ine. On the question of a uthenticity , the judge f o und, There i s also no proof that any one else actually accessed t he Xbox during the relevant tim e period. There’s nothing to indicate that any one else was in the room , had access t o the Xbox, and certainly there’s a p ossibility it was used by other people, it was m oved other places, e t cetera. Any thing i s possibl e . It could have f

loated at som e point. But that’s not likely either. ¶27. Based on the S tate’s w itnesses’ testim ony , the trial judge ruled the State suf f iciently authenticated that t he searches actually cam e f rom Garcia’s Xbox. It w ould be u p to a jury

t o d e cide how m

uch weight t o give this i nf o rm ation and if G arcia, Gray , or som e one e l s e

8 T h e f a m i ly co n sisted o f a co w o rk er o f G a rcia’s, th e c o w o rk er’s w if e, an d th eir t w o sm all ch ild ren . 1 2m ade t he s earches. At this point, the judge f ound no basis t o exclude the X box searches on authenticity

grounds. ¶28. The trial judge also rejected Garcia’s unf air-prejudice argum ent.
VII. The trial court holds pretrial om n ibus hearing. ¶29. O n D ecem

ber 20, 2016, the trial court held a pretrial om nibus hearing. Of note f or this appeal, when the judge r e a c h e d the issue of com petency , she asked Garcia’s counsel, “[ A]t t his point,

. . . there’s no c laim of incom petency to stand t rial but f or this anxiety issue we’ve already

addressed, a nd that’s not really a com petency issue so m

uch as a being able

to pay attention a nd participate, right? ” T o w hich Garcia’s counsel responded, “That’s correct, Your Honor.”
VIII. The trial court revisits Garcia’s anx iety issue. ¶30. On January 12, 2017, t he week bef ore t he s cheduled t rial, the trial court h eld a hearing “to f ollow up on Dr. Storer’s earlier testim ony concerning the anxiety

issue.” ¶31. Dr. Storer testif

i ed that, af

ter Garcia received m edical treatm ent f or his anxiety , Dr. Storer r eevaluated Garcia in f ront of Garcia’s entire legal team , plus a dozen of f icers, to
create as close as possible the courtroom s etting. W hile Garcia still had anxiety disorder, in Dr. Storer’s opinion the m edical intervention had been ef f ective to the point t hat there was

no signif icant interf

erence w ith G arcia’s c o mp e t ency -related abilities. D r. Storer f ound Garcia com

p etent either to stand t rial o r to ent er a guilty plea and waive his constitutional rights. ¶32. The trial judge then entered her ruling:

1 3All right. Then at t his point, clearly the court previously f ound that Mr. Garcia was com petent w ith regard to his m ental f unctioning, his i ntellectual a bilities, et cetera. But there was s o m e concern with not p urely com petence, b ut his a

bility to be in the courtroom and to f

ully participate in his def

ense, to com m

unicate with his counsel, if

he choose[ s] to do so, to be able to testif y . And that w as all tied to this anxiety d isorder a n d his f eeling a heightened level of anxiety in the courtroom

. . . . Based t hough, on Dr. Stor e r ’ s t estim ony as well as the court’s observations of Mr. Garcia, it appears that that m atter has been f ully addressed with regard to this new m edication a n d p erhaps these new interventions that Dr. Storer testif i ed to. And so it appears to m e that Mr. Garcia i s f ully com petent and f

ully able to go f orward in his m atter, to m ake all necessary decisions with regard to assertion of his rights, w aiver o f his rights if he c hooses to waive any , testif y ing if [ he] chooses to testif

y , going to trial if that is his choice or entering a guilty p lea if that is his choice.
IX . Garcia m o ves to w aive a jury for sentencing. ¶33. On January 17, 20 1 7 , t h e d a y bef ore his scheduled trial, Garcia f iled a m otion f

or sentencing by the judge w ithout a jury present. S ee Miss. Code Ann. § 99-19-101(1) (Rev. 2015) (conf

e rring the statutory r ight to jury sentencing upon conviction or adj u d i c a t i o n of guilty of capital m

urder). The judge held a hearing on the m otion the sam e day

. ¶34. T h e h e a r ing m a inly consisted of the trial judge’s advising Garcia o f the righ t s h e would b e giving u

p and ensuring Garcia u nderstood the dif f erence between h aving a jury of twelve of his peers versus one judge sentence him . In particular, the j udge highlighted her

u n ique experiences that jurors w ould not have—nam ely , prosecuting, def e nding, a n d presiding over other capital-m urder cases. She also pointed out t o Garcia that, as the judge presiding over his case, she had p articipated in conversations with G arcia and his counsel and

1 4h a d r e a d a t torney status reports that a jury w ould not be privy to. Instead of ruling on the

m otion that day , she advised Garcia to think about his decision overnight and to consult with his attorney

. X . Garcia pleads guilty and w aives a jury for sentencing. ¶35. The next day , on January 18, 2 0 1 7 , G arcia p led guilty to the capital m urder of JT. Garcia gave the f

actual basis f

or his plea. He claim ed he went to the trailer that night with Gray , w ho had asked f

o r his help. Inside, he f

ound f ive-y ear-old JT already bound by socks

to a chair, f

a ce d own. Garcia proceeded to anally rape JT. Af ter he ejaculated, he realized
JT ha d “ d e f

e c a t e d every

where.” Garcia stated that he thought JT was dead at that point. Only later did he realize she was not dead, only unconscious. Because Garcia had not used

a c ondom , he tried to clean h er of f

. Both m en carried her t o the bathroom , and Garcia used the cap f rom a spray b ottle to d ip water f rom the toilet t ank t o rinse her. W i th Gray ’s help, Garcia hung JT f

rom the neck using the socks that had bound h er t o the chair. Gray held JT while Garcia tied her to the shower window. Garcia then rinsed the backside of her body and f lipped her around to wash her f ront. He l ef

t JT’s body hanging in the trailer and went straight to t h e a p a r tm ent’s laundry room because his clothes were covered in f ecal m atter. Af terwards, he showered. ¶36. The State then presented the proof it w o u l d o f f e r a t t r i a l

. B ased on Garcia’s adm issions and the State’s f actual basis, the trial court accepted Garcia’s guilty plea. ¶37. Having w aived his right t o t r i a l , G a r c i a proceeded to waive his right to a jury f or sentencing. Garcia explained his decision:

1 5Garcia: Ma’am , I f eel m ore com f

ortable having o ne individual, not 12, presiding over m y sentencing. And I believe since y o u know m e a l r eady and y ou can m ake that decision properly without any , y ou know, problem s, m a ’ am . Court: Let m e ask y ou this, Mr. Garcia. Do y ou think that if the proof

is there that I would h ave a n y hesitation at all in im posing the death penalty ? Garcia: No, m a’am

. Court: Do y o u thin k i f t h e proof is not there that I would have any

hesitation at all in im

posing lif e without parole? Garcia: Yes, m a’am , I understand.
Court: So y ou think I would have som e hesitation? Garcia: Oh, no, no, m a’am

. Court: S o y ou think—y ou don’t, y ou’re not hedging y o u r b e t s h e r e

thinking I would lean one way or the other? Garcia: No, m a’am

. Court: Okay . And y ou understand I will m ake that decision just like a

jury would m ake it. It’s just that t he state, a s I explained to y ou, would only

have to convince m e . Garcia: Yes, m a’am

. Court: Not 12 people. All right? Garcia: Yes, m a’am , I understand.
Court: All right. And so y ou b elieve that y o u’ve had suf f icient tim e and suf f icient advice to m ake this decision of y our own f ree will? Garcia: Yes, m a’am

.

1 6¶38. The judge then questioned Garcia’s counsel to ensure Garcia had been given adequate

tim e to consider his decision and had based his decision on the p r o p e r f actors. Both of Garcia’s lawy ers answered t hat they and Dr. Storer had spoken at length with Garcia about what h is decision w ould m ean and that Garcia was sure that he wanted to waive a jury

. Af ter of f ering Garcia another opportunity to take m o re tim e to m a k e h i s decision, which he declined, the trial court granted Garcia’s m otion to waive jury sentencing.
X I. The trial judge sentences Garcia to death. ¶39. The next week, the trial court held a three-day sentencing hearing. ¶40. The State’s presentation b e gan with testim ony f rom the 911 dispatcher who received the call f rom JT’s m other that JT was m i ssing. A recording of t he 911 c a ll w as play ed f or the judge. Next, the a

partm ent m anager testif

ied. She testif

i ed Garcia had reported to her

on the night JT disappeared that a little girl was m issing. He was soaking wet, like he had just g otten out of

the shower. He also appeared very calm

. The n ext m orning, af ter police f ound J T’s body , Garcia returned to the m a nager’s apartm ent. Garcia told h er that he had been in that trailer and that p olice would l ikely f ind his prints a nd accuse him o f the crim e. ¶41. Next, the State called Lieutenant Heather Dailey , who responded to the crim e scene af ter JT’s body had been f

ound. Sh e d e s c r i b e d the trailer a s m essy and dark, w ith item s
strewn every

where. She explained that JT had a shirt on but was naked f r om the waist down. Crim e Scene Technic i a n J e s s i c a Kendzioreck arrived at the trailer an hour later. Bef ore

m oving JT’s b ody , Kendzioreck t o o k pictures of the t railer a n d J T ’s body as it was f ound. The s e p i c t u res were a dm itted into evidence. FBI A gent Ty Breedlove searched the trailer

1 7that day

. He testif ied that, in his eight or nine y e ars of experience, the trailer “was o ne of the

m ost d isgusting crim e scenes that we’ve been to, f ull o f cockroaches a nd rat f eces and rotted f ood and the sm ell stuck with us f or a good two or three weeks. ¶42. P o l i c e O f

f icer Grant Koon a ttended the autopsy of JT’s b ody , perf orm e d b y t h e

coroner the af

ternoon JT was f

ound. Of f icer K oon testif

ied he photographed the body

. He also secured the sam

p les taken f

r om the body and subm itted t h e m t o t h e FBI f or testing. Shane Hof

f m an, th e FBI f

orensic exam iner who tested the sam ples also testif

ied. He conf irm ed the DNA f

rom the vaginal and anal s w abs m atched Garcia’s DNA but excluded Gray ’s. The DNA on the socks tied to JT’s neck also excluded Gray ’ s DN A b u t w a s a possible, albeit inconclusive, m a tch with Garcia’s. ¶43. In addition to the DNA e vidence, the Stat e p r e s e n t e d t h e r e cording of Garcia’s conversation on the way to the police station. The State also play ed the r ecording of his interview once he arrived. 9 ¶44. The FBI digita l f

o r e n s i c e x a mi n e r a l s o t estif ied about the i nternet searches m ade through the seized Xbox. S earch term s included “toddler h entai,” 10 “very y oung,” “petit, tiny , tween, cry ing, rape, anal, f orced,” and “poor little t hing, kid n a p p ed and raped, virginravisher.”

9 At Garcia’s request, the judge also adm itted t he r ecording of his second interview with t he police, i n which Garcia adm itted helping Gray hang JT’s body b ut d enied sexually assaulting her.

10 S ee su p ra n .5

. 1 8¶45. Finally , the S tate called Dr. Mark LeVaughn, State P athologist. Dr. LeVaughn was

adm itted as an expert w itness w ithout objection f r om the def

ense. H e t e s tif

ied the appearance of

JT’s vagina and a nus indicated injurious sexual penetration that would have caused JT pain and traum a. Dr. LeVaughn gave his expert o pinion t hat, b ased on the crim escene photos, autopsy photos, and autop s y report, JT died f rom ligature strangulation or hanging. He also testif

ied that, b ased on his experience, the abrasions f ound on JT’s neck below her lef

t ear were scratch m a r k s —m a rks ty p ically lef

t w hen s o m eone tries to f ree herself f rom being hanged. ¶46. Garcia called Dr. S torer to testif y on Garcia’s behalf

. Dr. Storer relay ed that Garcia

cam e f rom a broken hom e with too m any children, a history o f dom estic v iolence, and som e odd religious belief

s . In particular, Garcia had been adm i tted to a child psy chiatric hospital when h e was eight y ears o ld. From his r ecords, it appears G a r cia had b e e n a n “extrem ely disturbed child.” U pon his release, Garcia was s upposed to be placed i n a residential f acility f or treatm ent, but his m other did not f ollow through. Garcia l ef t school at s ixteen and was,
at one point, hom e less. 1 1 Dr. Storer also relay e d Garcia’s history with sexually com pulsive behavior, including o b s e s s i v e m asturbation b eginning at a prepubescent a ge. He also experim ented w ith bondage and sadom asochism beginning at the age of eighteen. During

one p eriod, Garcia would go to pornographic theaters and allow random m en to tie him up and have sex with him

.

11 G arcia later o b tain e d h is G E D

. 1 9¶47. Garcia also called Heather Hobby , Gray ’s e x-girlf riend and the source o f the tip that led t o t he search of Gray ’s apartm ent. 12 Hobby t estif ied about G ray ’s relationship with Garcia—how G ray m istreated Garcia, how Garcia w ould do any thing Gray wanted, and how Gray took advantage of that. ¶48. In clos i n g , G arcia’s c ounsel condem n ed the death penalty generally a nd asked the judge f o r m ercy . ¶49. Af ter deliberation, t he trial judge sentenced Garcia to death. The judge noted that, in her o pinion, G arcia “had not been totally truthf ul ” a n d had “never shown rem orse.” The judge f ound, regardless of whet h e r G r a y was or was not involved, Garcia adm itted he sexually assaulted and caused the death of JT, and he is responsible f o r those actions. ¶50. The judge f

ound two statutory aggravating circum stances bey ond a reasonable doubt. First, bey ond a reasonable doubt, t he killing of JT occurred while Garcia was engaged in the

com m ission of a s exual battery

. M iss. Code Ann. § 99-19-101(5)(d) ( Rev. 2015). Second, bey ond a reasonable doubt, the capital m urder of JT was especially heinous, atrocious, and cruel. Miss. Code Ann. § 99-19-101(5)(i) (Rev. 2015). The judge based her decision

on evidence including the child’s age, size, injuries, p ain and suf f e ring. [ J T] was f ive (5) y ears of age, w a s f our (4) f eet two (2) inches tall, and weighed f if ty ( 50) pounds. Garcia was a heavy s et twenty -nine (29) y ear old m an at the tim e of the crim e. [ JT] had no m eans by which she could have resisted Garcia or def ended herself f

r om h i s actions based on her size and age. Further, s he was f ace down, tied to a c hair with her h ead stuf f ed into the seat and turned to the side. This o c curred prior t o the sexual assault even f urther restricting any ability to protect herself

, avoid Garcia or avoid what was about to bef all her.

12 H o b b y testif

i ed s h e called th e p o lice w h en sh e learn ed a little g irl i n G r a y ’ s ap artm en t co m

p lex w as m issin g b ecau se H o b b y k n ew G ray “h ad a p a s t w ith ch ild p o rn o g rap h y ” an d h ad b een sex u ally ab u siv e to w ard h er. 2 0Clearly she would have recognized and been a ware of this occurring, that there

was d anger, and that som e thing terrible w as about t o o ccur. Moreover, the assault a nd killing occurred in what i s undisputedly a f ilt h y t r ailer, with roaches running ram

pant every

where and a terrible stench. [ J T] was certainly able to see and know of

these conditions bef

ore being bound to the chair. She was t hen penetrated both vaginally and a nally while s till alive and t ied to the chair. G arcia adm its only to the a nal penetration, wh i c h c aused h er to def ecate. The undisputed evidence, however, is t hat his DNA was f o und to be a m atch t o the D NA located on the vaginal s wabs, with the p e r s o n G arcia claim s com m itted the vaginal penetration being excluded on DNA testing of those swabs. Garcia’s DNA w as also f ound to be a m atch to the DNA on the anal s wabs, the rectum swabs, the inner thigh a nd vulva swabs, and the inside of the s ocks u sed to hang [ JT]. The other person was also excluded f rom each DNA com

p arison. There is every reason to believe that [ J T ] w a s c o n scious f o r at least s om e of the sexual assault. The length of tim e she was tied t o the chair i s not specif ied in t his record, but was o bviously long enough f o r b oth t he vaginal assault and the anal assault. Garcia adm its the anal penetration which, even accepting only his own testim ony , h ad to f ollow t h e v aginal penetration. Dr. LeVaughn testif ied to the serious injuries inf licted to the v aginal and anal areas. Those injuries involved the entire circum f erence of each area as well as injuries t o the inte r n a l portions of t hose areas. D r. L eVaughn also testif ied that the sexual assaults would have caused [ JT] pain and terror. Finally , it is clear that death was not instantaneous upon the h anging. There is evidence that [ JT] was conscious at som e point during the hanging as there are scratches to her l ef

t f ace/jaw area which Dr. LeVaughn testif ied a re consistent with som eone attem

pting to f ree herself f

rom a ligature around her neck. [ J T] suf f ered signif

icant phy sical and m ental pain and suf f ering bef ore her death. The sexual battery

and killing of

[ JT] was brutal, cold and torturous. ¶51. T h e j udge also f

ound “som e m itigating f

actors have b een shown.” Ga r c i a h a d n o signif icant crim inal history

. And he was twenty -nine y ears old at the tim e of the crim e, “still being a considered y oung person.” W hile G arcia claim ed he com m i tted t he cr i me u n d er
extre m e em otional disturbance, the judge f ound absolutely no evidence to s upport this

a l l e g ed m itigating circum stance. Finally , Garcia presented evidence of his trouble d

2 1childhood and extensive inf orm ation about the psy chological evaluation perf orm ed by Dr. Storer. The judge noted that it appeared to b e som ewhat m itigating that his f orm a tive y ears “were f ar f rom good.” F urther, while Garcia no doubt h ad a n anxiety disorder, this disorder had nothing to do with the crim e com m itted. And while Garcia had ongoing m ental-health issues as a child f

or which he did n ot receive treatm ent, at age t wenty -nine, Garcia had long been old enough to seek help on his own. ¶52. In t he end, the judge f ound the m itigating circum stances insuf f icient to o utweigh the aggravating circum stances. She thereby sentenced Garcia to death. F ollowing the denial of his m otion to vacate the sentence and conduct a n ew senten c i n g t r i a l , Garcia appealed his

sentence only , having no right to appeal his underly ing capital-m urder conviction based on his guilty plea. See Miss. Code Ann. § 9 9-35-101 (Rev. 2015) (“[ W ]here t he def endant

enters a plea of g uilty a nd is sentenced, then no appeal f rom the circuit court to t he Suprem e Court s hall b e a llowed.”). But see Miss. Code A nn. § 99-19-105(1) (Rev. 2 015) (“W henever the death penalty is im

posed, a nd upon th e j u d g me n t b e com ing f inal in the trial court, the sentence shall be reviewed on the record by the Mississippi Suprem e Court.”). Issues on Appeal ¶53. On appeal, Garcia raises eight sentence-related issues:
1. Must Garcia’s death sentence be set aside because the trial cou r t unconstitutionally heard and decided m aterial p retrial m otions at a tim e when Garcia was incom

petent to participate in the proceedings?
2. W as Garcia’s waiver o f a ju r y at his s entencing p roceeding invalid because the trial court im

properly d enied his pretrial m otion f or change of venue?

2 23. Must Garcia’s death sentence be set aside because the trial court relied on unconstitutionally adm itted e vidence to arrive at its s e ntencing decision?
4. Did the trial c ourt reversibly e rr by f inding Garcia com

petent to waive a jury trial at sentencing?
5. W as G a r cia deprived of a f air sentencing tribunal because the sentencing judge should have d isqualif ied hers elf based on her presentencing exposure to conf idential inf

orm ation that would ordinarily not be k nown to a sentencing f

actf inder, her adm itted predisposition in this case, and her intent to consider extra-record m atters?
6. W as G arcia’s d e ath sentence im posed in violation of the United States Constitution?
7. Must Garcia’s death sentence be set aside as disproportionate?
8. Does the cum

ulative e f f ect o f t he trial court’s errors i n t h is c ase m a ndate reversal of

Garcia’s death sentence? Additionally , Mississippi Code Section 99-19-105(3) m a ndates this Court review Garcia’s death sentence and m ake the f ollowing determ inations: (a) W hether the sentence o f d e a t h w a s i mp o s ed under the inf luence of passion, prejudice or any

other arbitrary

f actor; (b) W hether the e vidence su p p o r t s t h e j u r y ’ s o r j u d g e ’ s f inding of a statutory a g g r avating circum stance as enum erated in Section 99-19-101; (c) W hether the sente n c e o f death is e xcessive or disproportionate to the penalty im

posed in sim ilar cases, considering both the crim e and the def e ndant; and (d) Should one or m ore of the aggravating circum stances be f ound invalid on a ppeal, t he Mississippi Suprem e Court shall d eterm ine whether the rem aining aggravating circum stances are outweighed by the m itigating circum stances or whether the inclus i on o f any invalid circum stance was harm l ess error, or both.

2 3Miss. Code Ann. § 99-19-105(3) (Rev. 2015).
Standard of Review ¶54. “ We a p p l y h e ightened scrutiny to an appeal f rom a sentence of death.” Evan s v . State , 226 So. 3d 1 , 13 ( Miss. 2017) (citing Corrothers v. State , 148 So. 3d 2 78, 2 93 (Miss. 2014)). “This higher level o f scrutiny r equires th a t all doubts be resolved in f avor of the accused because ‘what m ay b e harm less error in a case with less at stake becom es reversible

error when the penalty is death. ’ ” Bennett v. State , 933 So. 2d 930, 939 (Miss. 2006) (quoting Balfour v. State , 598 So. 2d 731, 739 (Miss. 1992)).
Discussion
I. COMPETENCY
Issue 1: Did the trial judge hear and rule on pretrial m otions during

a tim e w hen Garcia w as incom petent? ¶55. G a r c i a f

i r s t a r g u e s h i s s e n t e n c e mu s t b e v a c a t e d b e c a u s e t h e t r i a l c o u r t “unconstitutionally heard and d e c i d e d p r e t r i a l m o t i o n s m a t e r i a l to the sentencing proceedings under review at a ti me w h e n G a r cia was i ncom petent to participate in the proceedings.” Garcia claim s the reco rd “ establishes w ithout dispute” t hat, due to his untreated anxiety disorder, Garcia was incom petent to participate in open-court proceedings f r om t he tim e of his a rraignm ent in October 2015 until, f ollowing treatm ent, he w as f ound to be com

petent

on January 12, 2 017. Garcia argues that during this tim e, despite his incom petency , the trial

court ruled on m otions s ignif icant to his sentencing, such as h is m otion to change venue and his m otions to suppress. Citing Drope v. Missouri , 4 20 U.S. 162, 181, 95 S

. C t

. 896, 43 L.

2 4Ed. 2d 1 03 (1975), Garcia argues that, b ecause the proceed i n g s a g ainst him were not

suspended during the tim e of his incom

petency , his sentence m

ust be set aside. ¶56. Garcia’s argum e nt principally rest s o n h i s p r e s u m p t i o n t h a t the trial court “adjudicated that Garcia was not com

petent” at the Novem

ber 22, 2 016 h earing a nd only f ound Garcia to be com p etent o n January 1 2, 2017, af ter Garcia received “restorative t reatm ent.” Consequently , Garcia i nsists, the trial court h eld i m portant pretrial hearings and m ade rulings d u r i n g a t i me Garcia had been f ound incom

petent. But the r ecord does not support this
prem ise. Instead, the r e c o rd shows the opposite—the trial court f ound Garcia to be

com petent during the entire trial-court proceedings. ¶57. “The standard f

or com petency to stand trial is whether the def endant has ‘suf

f icient present ability to consult with h is l awy er with a reasonable d egree of rational understanding,’ and ‘has a rational as well as a f actual understanding of the proceedin g s a gainst him .’” Pitchford v. State , 240 So. 3d 1061, 1067 (Miss. 2017) (quoting Gam m age v . State , 510 So. 2d 802, 803 (Miss. 1987)); see also Dusky v. United S tates , 3 62 U .S. 402, 402, 80 S. Ct. 78,
4 L. Ed. 2d 824 (1960) (per c uriam ). And a t the Novem ber 2016 hearing, f

ollowing Dr. Storer’s t estim ony , the trial judge f ound Garcia m et this standard. She ruled, “based on the testim o ny , and of c ourse [ h er] observances of Mr. Garcia, it [ did] not appear to [ her] that he is in any m anner incom

petent in term s of intellectual f unctioning or h is ability to understand and appreciate what is going on or in f act in his ability

to consult with his attorney s.” ¶58. The j udge did, h owever, “have som e q uestion” about how Garcia would h andle the

courtroom setting if t

he case went to trial

. Noting how Garcia a p peared m ore relaxed when

2 5properly m edicated, she determ i ned, “the better c ourse [ was] to try to t reat [ his anxiety ] f irst and s ee where [ things stood] i n a bout t hirty d ay s.” At t hat point, the judge f ound Garcia
“com petent but f

or that potential issue

. . . .” (Em phasis added.) On appeal, Garcia interprets the judge’s ruling as f

inding him i ncompetent

to participate in open-court proceedings and actually com m

unicate with h is lawy ers during them

. But this i nterpretation i s c o n t r a ry to what the judge actually f

ound. As part of her ruling, the judge noted, “It appear[ ed] to [ her] that clearly [ Garcia] c o u ld p articipate during trial.” At the tim e of the Novem ber 2016 hearing, the j udge determ ined Garcia “probably cou l d make it through a trial, and

. . . probably would do all right going through a trial.” But because “it would take a great deal

o f patience on his part and his attorney ’s part,” and t o prevent Garcia’s anxiety f r o m potentially escalating to a point t hat he could not p articipate a t f uture trial, t he judge ordered

treatm ent and a reevaluation in thirty day s. ¶59. Garcia’s interpretation is f urther contradicted by

the judge’s com m e nts on her prior ruling at the Decem

ber 20, 2016 o m nibus hearing. Notably , def ense counsel never objected

to this hearing based on Ga r cia’s incom p etency

. A nd when d iscussing the issue of

com petency , the j udge asked Garcia’s counsel, “[ A]t this point,

. . . t h e r e ’ s n o claim of incom petency to stand trial but f or this anxiety issue w e’ve already addressed, and that’s not really a competency issue so much as a being able to pay attention and participate , right? ” (Em phasis added.) And counsel acknowledged, “That’s correct[ .]” ¶60. At th e J a n u a r y 1 2 , 2 0 1 7 h e a r i n g, in which the trial court “f ollow[ ed] up on Dr. Storer’s earlier testim ony concerning the anxiety issue,” the judge e m phasized that she never

2 6f

ound Garcia to be incom

petent. Instead, “clearly the court previously f ound that Mr. Garcia

was com petent with regard to his m ental f unctioning, his intellectual abilities, et cetera.” But the judge d id note “there w as som e concern with not purely com petence, but his ability to be in the c ourtroom and to f

ully participate in h is d ef

ense, to com m

unicate with his counsel, if he c h o o s e [ s ] t o d o so, to be able to testif y .” Garcia seizes on this com m ent, asserting that

com petency includes the ability “to rationally com m u nicate with his attorney about the case” and “to t estif

y in his own d ef

ense if appropriate.” H

earn v . S tate , 3 S o. 3d 722, 728 (Miss. 2008) (quoting Martin v. State , 8 71 So. 2d 693, 697 (Miss. 2004)). But the judge never f ound Garcia had m et his b urden t o overcom e the p resum ption that he possessed these abilities. See Evans , 226 So. 3d at 14 (“The burden of proof rests on the def endant to prove that he is m entally incom

petent to stand t rial.” ( citing Richardson v. State , 767 So. 2d 195,
203 (Miss. 2000))). R ather, the record shows the judge w as c onc e r n e d about—and addressed—the possibility that Garcia m i ght lose these abilities during a f uture jury trial if he was not properly

m edicated. ¶61. Specif

i cally , the trial cou r t n e v e r f o und w hat Garcia now asserts on appeal—that, f rom the tim e of his arraignm e nt in October 2015 until Dr. Storer t estif ied a second tim e in January 2017, Garcia had b een i ncom petent to participate in the p roceedings that took place during that tim e period. ¶62. As to t h e t rial court’s actual f inding—that G arcia was com petent during the entire trial-court proceedings—we f ind no abuse of discretion. See M a r t i n , 871 S o. 2d at 698 (apply ing abuse-of

-discretion standard of review to a com petency determ ination). “W e will

2 7reverse a tri a l c o u r t ’ s com petency determ ination only i f it is ‘m a nif estly against the overwhelm ing weight of the evidence.’” Dickerson v. State , 1 75 So. 3d 8 , 15 (Miss. 2015) ( q u o ting Hearn , 3 So. 3d at 728). And here, c o ntrary to Garcia’s c l aim , t he trial co u r t ’ s f inding G arcia t o be c om

petent was not m a nif

estly against t he overwhelm ing weight of the evidence. ¶63. At the N ovem

b er 2 016 hearing, Dr. S torer did t estif y t hat his p relim inary opinion was that Garcia was incom

petent. But this testim ony did not go “ unrebutted” a s Garcia suggests. Instead, the trial judge questioned Dr. Storer caref ully ab o u t t he bases o f his opinion, one being t h e r e p o rted panic a ttack Garcia suf f ered during the July 26, 2 016 suppression and change-of

-venue hearing. The judge asked Dr. Storer if he was aware that Garcia exhibited

no sy m p tom s during t he court p roceeding that m orning. Instead, he reported to his attorney s

as they were breaking f

or lunch that h e d id not f

eel well. I t cam e to light that Garcia had not been given his m edication that m orning, so the jail nurse was called to see Garcia during the break. Af

ter being seen and treated, Garcia told the court he f e lt better. ¶64. Dr. Storer had also based his opinion o n Garcia’s initial s tated pref erence f or the death penalty over l if

e without parole. Dr. S t or e r h a d t estif ied he was concerned Garcia’s pref erence was evidence his anxiety disorder had im paired his decision-m aking ability

. But when questioned by

the trial judge, Dr. Storer a dm itted this was only a c oncern. He could

n ot say t hat Garcia’s anxiety im paired his rational decision-m aking ability to a reason a b l e degree of psy chological certainty

.

2 8¶65. The judge also asked Dr. Sto r e r a b o u t h i s c o m me n t t h a t G arcia had responded

appropriately to the questions posed b y the court and that Garcia f ully understood what was going on. Dr. Storer reiterated that Garcia’s i n t e l l e c t u a l f unctioning was f

ine and that his anxiety disorder “is not a severe and persistent m ental i llness of the ty pe that would alter

so meone’s perception of reality .” Instead, Dr. Storer testif ied that G arcia’s anxiety “shuts him down to w here he’s not pay ing attention and listening and processing inf orm ation, and he’s not able t o ask questions of his attorney s as appropriate or point things o u t

. ” But balanced against Dr. Storer’s opinion was the trial judge’s own o bser v a t i o n s of Garcia in

court and her own caref

ul questioning of G arcia at each hearing to ensure he u nderstood what

w a s going and had a m eaningf u l opportunity to com m

unicate with his counsel. W e h a v e caref u lly reviewed these proceedings and f ind n o e v i dence Garcia had been unable to understand what was going on or consult with his counsel. ¶66. In o ther words, the transcript belies G arcia’s a ssertion that “without dispute” he was actually incom

petent d u ring his change- of

-venue a nd e v idence-suppression hearings. Crim inal def

endants—including those c h a rge w ith capital of f enses—are presum ed

com petent, with “[ t]he burden of proof rest[ ing] on the def endant to prove that h e is m entally incom petent to stand trial.” Evans , 226 So. 3d at 1 4 (citing Richardson , 767 So. 2d at 203). Here, contrary t o Garcia’s assertion, the trial court never f ound Garcia had m et that burden. And the record d oes not s how her f inding Garcia c o m

petent was m anif

est error. Theref

ore, the trial court did not r eversibly err by f ailing sua sponte t o suspend the proceedings against

2 9Garcia f

rom his arraignm ent until Dr. Storer subm itted on January 12, 2 016, his f i nal report f inding Garcia com

p e tent.
Issue 4: Did the trial judge err by f inding Garcia com petent to w aive a jury for sentencing? ¶67. Garcia raises a second com petency argum ent related specif

ically to his com

petency
to waive his right to a j ury trial at sentencing. Despite his own m e ntal-health expert’s testif y ing on January 12, 2016, t hat Garcia was com petent, Garcia now argues t he trial court erred by f inding him

com petent to waive his right to jury s entencing. ¶68. G a r cia seem i ngly dism isses Dr. S torer’s f inding of com

petency b e c a u s e i t w a s conditioned on G arcia’s receiving proper m edical treatm ent. But at n o p oint does he argue that he had been incom

petent on January 18, 2017—the day he waived h is right to a jury f or sentencing—because he h ad not received proper m edication. Garcia also c ontends the trial

court erred b y l argely rejecting Dr. Storer’s testim o ny at the Novem ber 1 6, 2016 hearing that Garcia’s anxiety disorder im paired his ability to m ake rational decisions, as e v idenced by his stated pref

erence t o live on death row instead of with t he general prison population. W hile acknowledging h is pref

erence changed f

ollowing treatm e nt, 13 Garcia attributed this change

t o c ontinued availability of treatm ent. But Garcia does not c laim lack of proper t r e a t me n t contributed to his decision to waive jury sentencing.

13 G arcia f

ails t o ack n o w led g e, h o w e v er, th at D r . S to rer co u ld n o t t estif y to a reaso n ab le d eg ree o f p sy ch o lo g ical certain ty th at G arci a ’ s a n x i ety d i so rd er i m p aired h is ratio n al d ecisio n -m ak i n g ab i lity

. R ath er, D r. S to rer w as merely co n c ern e d , w h ich w as larg ely th e reaso n h e su g g e sted treatm en t. 3 0¶69. Instead, citing the Mississippi Court o f A ppeals’ d ecision in Magee v. S tate , 752 So. 2d 1100, 1 102 (Miss. Ct. App. 1999), Garcia argues—in his own words—that the “capacity f or rational decision m aking” is “ another aspect of com petency

. ” 1 4 He c ontends his decision

to w aive a jury f

or sent e n c i n g was irrational because his “sole concern” was avoiding the jury -selection process. As support, he zeroes i n on one question he asked during the hearing: Garcia: Just one question, m a’am

. If I w aiver [ sic] m y sentencing Jury ,

would a Jury

still be selected? Judge: No. Garcia: Okay . That’s why I was asking. Garcia claim s on appeal t hat this question “is that of a p erson who is so c ontrolled by his f ear of having an anxiety attack if his m edications f

ail him in a courtroom f

ull of people during the jury selection process that he is driven by his m ental illness to do any thing to avoid the possibility that could happen.” But even under heightened scrutiny , a nd giving G arcia the benef it of any doubt, the record does not support h is c ontention that the t rial court erred by

14 H ere is w h at th e C o u rt o f A p p eals actu ally

h e l d in M

a g ee : T h e s t a n d ard o f co m

p eten cy to en ter a g u ilty p l ea is t h e sam e as th at f o r d eterm in in g co m

p eten cy to stan d trial. G o d in ez v . M o ra n , 5 0 9 U .S

. 3 8 9 , 3 9 9 , 1 1 3 S

. C t

. 2 6 8 0 , 1 2 5 L . E d . 2 d 3 2 1 (1 9 9 3 ); C a ylo r v. S ta te , 4 3 7 S o . 2 d 4 4 4 , 4 4 7 (M iss. 1 9 8 3 ). A ll th a t t h e S t ate m u st d em o n s trate as to co m p eten cy to stan d trial is th at th e d ef

en d an t h a s a ratio n a l u n d erstan d i n g o f th e c h arg es ag ain st h im an d th e ab i lity to assist h is l aw y er in p r e p arin g h is d ef e n se. G o d in ez , 5 0 9 U .S . at 3 9 6 . . . ; C a ylo r , 4 3 7 S o . 2 d at 4 4 7

. M a g ee , 7 5 2 S o . 2 d at 1 1 0 2

. In o th er w o rd s, th e stan d ard f o r co m p eten c y to w aiv e th e rig h t to a j u ry trial is th e s am e stan d ard o f c o m p eten c y t o stan d trial. I t is th e D u sk y stan d ard

— th e “su f

f icien t p resen t ab ility to co n su lt w i th h is law y e r w ith a reaso n ab le d eg ree o f ratio n al u n d erstan d in g ” an d “a ratio n a l a s w ell as f actu al u n d erstan d in g o f th e p ro ceed i n g s ag a in s t h im .” D u sk y , 3 6 2 U .S . at 4 0 2

.

3 1f

inding him

com petent. Garcia bore the burden to show incom petency by a

preponderance of the evidence. Ross v. State , 9 54 So. 2d 968, 1007 (Miss. 2007) (“W h ere there is a serious question about the sanity or com petency of a def

endant to stand trial, ‘ it naturally devolves
upon the def

endant to go f

orward with the evidence to show his probable incapacity to m ake

a r ational def

ense.’” (quoting E

m anuel v. State , 412 So. 2d 1187, 1189 (Miss. 1982))). And, here, Garcia’s isolated procedural question does n ot tip the scale against the trial judge’s ruling. ¶70. Instead, t he t rial judge’s f inding that Garcia was com p etent is supported not only by her own observations of Garcia’s ability to com m u nicate with c o unsel a nd participate in the proceedings against him over the c ourse of m ore than a y e ar but also b y Garcia’s own expert. Indeed, Dr. Storer f

o u nd Garcia com

petent af ter i nterviewing him in a courtroom in f ront of his entire def

ense t eam and a d o zen of f icers c onvened to sim

ulate as c l o s e l y a s possible a jury -trial environm ent. Dr. Storer created this e nvironm ent t o ensure Garcia’s social-anxiety issues did not f

a ctor in his decision to waive his right to a jury sentencing. ¶71. Af ter r eview, we f

ind t he j u d g e ’ s c o m

petency f inding well supported. There is no reversible error on either com p etency -related claim

. II. CHANGE OF VENUE Issue 2: Did the trial court abuse its discretion b y deny ing Garcia’s

m otion to change venue? ¶72. As his second i ssue, Garcia argues that his waiver of a jury at sentencing was invalid because t he trial court im properly denied his p retrial m otion f or a change of venue. Garcia
argues he waived his r ight to a sentencing j ury out of necessity because the trial j udge ruled

3 2his jury would com e f rom Harrison County , “a place where there was personal h atred against him .” ¶73. The record, h owever, does not support that h is waiver of a sentencing jury was f orced

or even connected to the denial o f his m otion t o c hange venue m onths earlier. In the
Decem ber 2016 pretrial conf

e rence, the trial judge indicated her mo t i o n -to-change-venue decision was not set in s t one. Garcia was f ree to raise the v e n u e issue again based on changing c ircum stances. Garcia did n ot r enew his m otion—despite now arguing on appeal that post-venue-hearing circum stances supported t he need to change venue. Instead, Garcia chose to waive his right to a jury at sentencing. ¶74. F u r t h e r , b e f

o re a ccepting Garcia’s waiver of a jury at sentencing, the trial judg e specif ically advised G arcia that he would be waiving h is right to challenge her jury -related pretrial rulings, including the denial of his m otion to change venue. S h e warned, “You’re giving up the right, a ll these m otions we’ve heard a b out the v enire and pos s i b l e me d i a
coverage, all of that stuf

f , basically all those m otions w ould go by the way side as to any kind of f air and im

partial jury . You understand that? ” Garcia responded that he understood. ¶75. On appeal, G arcia argues the trial judge’s advice contained legal error. Citing cases f rom other j urisdictions, he argues that his waiver of a j ury at sentencing did not o perate as

a w aiver of the r ight to challenge on appeal the denial o f his m otion to change venue. State

v. Kahey , 436 So. 2 d 475, 481 (La. 1983) (holding that the wa i v e r o f t r i a l by jury did not

m oot the change-o f

- v enue i ssue); State v. Johnson , 318 N.W .2d 417, 4 21 (Iowa 1982) (sam e); Com m onwealth v. Dobrolenski , 334 A.2d 268, 271 (Pa. 1975) (sam e )

.

3 3¶76. In their brief s, both Garcia and the State claim Byrom v. State , 863 So. 2d 836, 851 (Miss. 2003), speaks t o the waiver issue. B ut in Byrom , also a death-penalty ca se, the def endant did not p lead g u ilty , a s Garcia did, b ut instead w as t ried by a jury

. Only af t er a jury f ound her guilty did t h e d e f e ndant waive her right to a jury at sentencing. I d. at 845. On appeal of both t he jury ’s v erdict and the trial court’s s entence, By rom argued the trial

court erred by deny ing her m otion to change venue. Id. at 851. B u t it cam e to light that By rom ’s counsel erroneously believed a mo t i o n t o change v enue had been denied, though in reality the m otion, while discussed in open c ourt, h ad never been f iled. Id. Because no

m otion was e ver f

iled or b rought to a hearing, this C ourt f ound the i ssue o f venue procedurally

barred. Id. W e also f

ound her claim

lacked m erit. Id. ¶77. B y r o m w a s based on a waiver principle not at issue here—the f ailure to obta i n a ruling on a m otion. Id. Here, G arcia obtained a ruling. H is m otion t o change venue was denied. But he then proceeded to waive his right to a jury b oth at trial and at sentencing. So Byrom i s s i l ent on what im pact Garcia’s waiver of a jury had on his ability to appeal the denial of his m otion to change venue. ¶78. W e do note t he Mississippi Court of Appeals has addressed this issue in a non-deathpenalty case. I n Grissom v. S tate , 66 So. 3d 1280, 1282 (Miss. Ct. App. 2011), the court held that t he def

endant was procedurally barred f rom raising in a m otion f

or postconviction relief the claim that t he trial court erred by deny ing his m otion to change v enue. The bar applied because the def

endant “chose to plead guilty a nd, thus, did not h ave a trial.” Id. W e f ind the
Court of Appeals’ reasoning sound. Because Garcia c hose to plead g uilty , waiving his right

3 4to a j ury trial, and because Garcia additionally waived his right to a jury a t sentencing instead

of renewing his m otion to change venue, we f ind this issue is procedurally barred. ¶79. That said, i n B

y rom , we proceeded to address the m erits of the c a pital def endant’s

venue claim despite the clear procedural bar. B y r o m , 863 So. 2d a t 851. W e do the sam e here, additionally f

inding the trial judge did not a b u s e h e r discretion by deny ing Garcia’s

m otion to change venue. ¶80. “A m otion f

or a change of venue is not autom atically granted in a capital case.” Id.
Even i n a capital case, “[ t]he decision to g rant a c h a n g e o f v e nue rests soundly in the discretion of the trial judge.” King v. State , 9 60 So. 2d 413, 429 (Miss. 2007) (citing Howell

v. State , 860 So. 2 d 7 0 4 , 7 1 8 ( M i s s . 2004)). “This Court will not disturb t he r uling of the trial c ourt where the sound discretion of the trial judge in deny i ng a c h ange of venue was not abused.” Id. (citing Howell , 860 So. 2d at 718). ¶81. As required by Mississippi Code Section 9 9-15-35, Garcia’s m o tion to change venue contained three sworn af

f idavits by Harrison County

citizens that Garcia could not receive

a f air a nd im partial trial. He also attached copies of m edia r eports. At the change-of -venue hearing, t he State acknowledged G arcia’s m o tion com plied with Section 99-15-35, creating
“a presum ption

. . . t hat an im

partial jury is unattainable.” Barfield v. S tate , 22 So. 3d 1175,
1183 (Miss. 2009) (citing W e lde v . State , 3 So. 3d 113, 1 18 (Miss. 2009); Miss. Code § 99-
15-35 (Rev. 2 007)); see a lso Ho l l a n d v . State , 705 S o. 2d 307, 336 (Miss. 1997) (“In addition [ to af

f idavits], adverse and prejudicial pretrial publicity m ay dem onstrate the

3 5inability t o obtain a f a ir jury i n that venue.” ( citing Johnson v. State , 476 So. 2d 1195, 1211 (Miss. 1985))). ¶82. B u t t his presum

ption is r ebuttable. Johnson , 476 So. 2d at 1211. To th a t e n d , t h e trial court proposed and G arcia a nd the State agreed to putting the pretrial-publicity question

to a jury venire that had b e en s u mmo n e d b u t not chosen f or another trial. See id. (acknowledging t hat t he S tate m ay rebut the presum ption by dem onstrating through voir dire that an i m partial jury is attainable); see also Welde , 3 So. 3d at 118 (“The St a t e may rebut the p resum

ption t hat an im

partial j ury cannot be obtained ‘by proving f r om voir dire that the trial court im

p aneled an im

p artial jury .’” (quoting Hollan d , 7 0 5 S o. 2d at 336)). So on August 16, 2016, the trial judge, the State, and Garcia questioned a pool of thirty potential jurors sum m oned f

or an u n related trial but n ot sel e c t e d t o s e r v e on the jury

. O f the thirty , nineteen acknowledged h aving known, heard, o r read som ething a bout Garcia’s case. Af

ter general questions were a sked, f ourteen m ock jurors were asked to s tay f o r additional detailed questions. ¶83. In m aking h e r ruling, the trial court f ound the “questioning of the jurors in this m atter
to b e the m ost helpf

ul to the determ ination of this Motion [ to change venue].” Specif ically , There were o ver one-third of the t otal j urors w h o indicated that they had never heard or s een any

thing concerning this case. O f those f ourteen (14) questioned m ore f ully , half had no knowledge of the case. Only three (3) of the f ourteen (14) questioned in detail indicated h aving f orm ed any opinion and only two (2) of those three (3) indicated that they would not be abl e t o s e t that opinion aside. In f

act, one (1) of those two ( 2) w o uld not have been a proper juror f or any cas e . A f

t e r b eing told about the burden of p roof being on the State and upon being a sked in general if the S tate proved in any case t h a t a c r i m e had been com m itted but f

ailed to prove that a def

endant had c om m itted it whether the jurors would f

ind that def

endant not guilty , this p articular j uror indicated

3 6that he would not as he b e lieved that if som eone was present or knew about the

crim e or such, then that person was also guilty

. The trial judge concluded that “the questioning of t he j urors indicates to the C o urt that the publicity has not been so pervasive that every one has either becom e e x posed to i t or recalls it. It also indicates that a f air an d im

p artial jury can be seated, given proper and thorough voir dire.” W e f

ind no abuse of discretion in this f i n d i n g . As in Welde , only one person answered he c ould not apply the presum ption of innocence. S

ee Welde , 3 So. 3 d a t 1 19 (af f irm ing the trial court’s denial of a m o tion to change venue partly because “[ o]nly o ne prospective juror stated that he had f orm ed a f i xed opinion”). ¶84. G a r c i a a r g u es the trial judge should have never conducted a voir dire because h i s

m otion dem onstrated that the presum ption he could n ot receive a f a ir trial in Harrison County due t o the m edia c overage was irrebuttable. “W h ile the presum p tion m ay be rebutted during voir dire,” this C o u r t h a s f o und that “‘in som e circum stances pretrial publicity can be so dam aging and the presum ption so great, that no voir dire can rebut it.’” White , 495 So. 2d

at 1349 ( quoting Johnson , 476 So. 2d at 1211). This Court “ha[ s] set f o rth certain elem ents which, when present w ould serve as an indicator to t he t rial c ourt as to when the presum ption is irrebuttable.” Id. These elem ents are (1) Capital cases based on considerations of a heightened standard of review; (2) Crowds threatening violence toward the accused; (3) An inordinate am o unt of m edia coverage, particularly in cases of (a) serious crim es against inf luential f am ilies; (b) serious crim e s against public of f icials;

3 7(c) serial crim es; (d) crim es com m itted by

a black def

endant upon a white victim ; (e) where there is an inexperienced trial counsel.
Id. In her order deny ing Garcia’s m otion to change venue, the trial judge considered each these f actors. S he acknowledged the f act Garcia’s case was capital. But she f ound a lack of evidence of threats of violence on Garcia. Further, she determ ined there had not been “an inordinate am ount” of

m edia coverage. ¶85. In p a

r t i c u l a r r egarding m edia coverage, the trial judge acknowledged that “[ t]here was

a g reat deal of coverage at the tim e of the subject c r im e, arrest of [ Garcia,] and prelim inary hearing.” But then the coverage s everely dropped of

f . “There were t hen a f

e w articles the f o l lowing y ear and only one (1) this y ear p rior to the hearing on this Motion.” Moreov e r , while “[ t]he subject crim e is certainly serious,

. . . there i s no allegation that it was com m itted against a m em

ber of an inf

luential f am ily o r a public of

f icial. Nor is t here any indication that it is a serial crim e. The victim was black and the Def

e ndant is Hispanic.” Finally , the trial judge noted that Garcia’s “[ t]rial counsel is e x perienced.” For these reasons, the trial judge concluded the m edia c overage had not been “an inordinate am o unt.” Specif ically , she f

ound the coverage had not reached the saturation l evel f ound to create an irrebuttable presum ption of partiality in Fisher v

. State , 481 So. 2d 203, 217-23 (Miss. 1985). 15

15 T h e trial j u d g e h ere f

o u n d , T h is is p articu larly t ru e w h en o n e co n s i d e rs th a t t h e r e w ere ap p ro x im ately th irteen (1 3 ) h o m icid es i n H arriso n C o u n ty in 2 0 1 4 , sev en ( 7 ) o f th o se b ein g in G u l f p o r t (in clu d in g th e su b

j ect crim e). E ach o f t h o se h o m icid e s also receiv e d a g reat d eal o f m ed ia co v erag e at th e tim e o f t h e o ccu r r e n c e , th e 3 8¶86. On appeal, Garcia is dism i ssive of the trial judge’s f indings both that there was a lack of evidence of t hreats of v i o lence m ade toward Garcia and that t here had n ot been “an inordinate am ount” of m edia coverage. He asserts that “ throughout the p rocess[ , ] threats of violence toward the accused f rom the com m

unity , a nd indeed toward his counsel, have been present and ubiquitous.” 16 H e cites various articles as dem onstrating a com m u nity dem and f or his death. 17 But a s evidenced b y t h e r ecord, the trial judge caref ully considered each article Garcia subm itted. 18 And f rom these articl e s s h e d e tected n o present and ubiquitous

arrest an d th e p relim in a ry h earin g . T h at is, th i s c a s e w a s n eith e r th e o n ly h o m icid e i n 2 0 1 4 , n o r th e o n ly h o m i cid e receiv in g m ed ia co v erag e. T o b e su re, th e f act th at t h e v ictim in t h is case is a ch ild sep a r ated it so m ew h a t f ro m o th er h o m i cid es an d d id d raw atten tio n f ro m th o se o u tsid e o f th is g eo g rap h ic area. H o w ev er, th ere h as c e r t a i n l y n o t b een th e m e d i a s atu ratio n w h ich o ccu rred in F

ish er . N o r h as th e re b een an y in d icatio n o f an y p rio r co n v ictio n s o f D ef en d an t o r an y

in d icatio n th at h e h as ev e r b een in v o lv e d in an y sim i lar crim e as also o ccu rred in F ish er . 16 We n o t e th at c o u n s el’s co m m en t ab o u t receiv in g th reats w a s m ad e at sen ten c i n g , n o t at t h e m o t io n t o ch an g e v en u e. A n d G arcia n ev er ren ew e d h is m o t io n to ch an g e v en u e b ased o n an y

n ew ev id e n ce, d esp ite b ein g ad v ised th a t h e co u ld

. 17 A t o ral arg u m e n t, G arcia’s c o u n s el also rep e ated ly ref eren c ed a p etitio n callin g f o r G a rcia to b e sen ten ced to d e a t h

. B u t G arcia’s co u n sel ad m itted th is u n d ated p etitio n h ad b een f i led a f ter G a rcia p l ed g u ilty

. A n d ev en so , G arcia d id n o t ren ew h i s m o tio n to ch an g e v en u e. In stead , h e p ro ceed ed to w aiv e a j u ry at sen ten cin g . 18 In h er o r d er, th e trial j u d g e o b serv ed , [ G arcia] al s o su b m i tted a larg e n u m b e r o f m ed i a rep o rts. T h e C o u rt h as rev iew ed each o f t h o se. O n ly o n e (1 ) a r ticle f o r 2 0 1 6 w as su b m itted a n d th at article f o llo w ed an earlier m o tio n h earin g in th is c a se. E ig h t (8 ) a rticles f ro m 2 0 1 5 w ere su b m itted

. T h ree (3 ) o f t h o s e f o cu sed o n th e o n e (1 ) y ear an n iv ersary o f th e d ate o f th e su b j e ct crim e; o n e (1 ) related to t h e v ictim ’s sev en th b irth d ay ; tw o (2 ) rep o rted o n [ G arcia’s] arraig n m en t; o n e (1 ) rep o rted o n th e settin g o f t h e t r i a l d ate i n th i s cau se; o n e (1 ) r ep o rted o n th e v ictim ’s co u sin b eg in n in g a g ro u p to h el p v i c t im ’s f am ilies; a n d o n e ( 1 ) related to a 3 9threats of violence. Only one article reported the jail warden’s say ing Garcia had not been housed w ith the general population due to t he h i g h probability o f threats against inm ates accused of sex crim e s against children and i nternal and external threats. And t his one article, standing alone, is insuf

f i cient to show the trial judge abused her discretion. ¶87. This Court has also caref u l ly reviewed the m edia reports subm itted to the trial court. And despite Garcia’s characterizations, the rem a ining articles do not dem onstrate the threat of c om m unity violence was such t hat n o voir dire c o uld rebut the presum ption of im

partiality

. Nor do they , as G a r c i a a l s o argues on appeal, dem onstrate a saturation of m edia coverage such th a t t h e d e n i a l o f h is m o tion to change v enue was reversible e rror. Even u nder the heightened s crutiny o f a c a p i tal case, the trial judge did not abuse her discretion when she evaluated the White f

actors and concluded the m edia c overage was not such that the
presum ption a Harrison County

jury could not be im

partial was irrebuttable.

seco n d arrest o f a p erso n o f in tere st in t h i s cau se w h o h as n o t b een c h arg ed w i th th e crim e in th is cau se. T h e m aj o r i ty o f th e articles are f ro m Ju ly a n d A u g u st o f 2 0 1 4 , j u s t af ter th e su b j ect crim e o ccu rred

. T h e in itial articles co n cern th e v ictim ’s d i sap p earan ce an d m ak e n o m en t io n o f [ G arcia] w h o h ad n o t y et ev en b een id en tif i ed as a p erso n o f in terest. L ater articles rep o rt o n [ G arc i a ’ s ] arrest, th e c a u s e o f d eath , an d [ G arcia’s] p relim in ary h earin g . T h e later articles in 2 0 1 4 co n tain a n u m b e r o f d e tails as t o c au se o f d eath , [ G arcia’s] p u rp o rted statem en ts, a n d D N A testin g . M an y o f th e articles are th e sam e, sim p ly h av in g b e en p u b lish ed b y d if f eren t m ed ia so u rces. A n u m

b er o f articles also rep o rt o n th e f act th at [ G arcia] w as f irst arrested an d ch arg ed w ith b u rg lary o f th e trailer in w h ich t h e v ictim w as f o u n d an d h i s p u rp o r

ted s tatem en t ad m ittin g to t h at b u rg lary

. M an y o f th e d etails i n th e a rticles a

p p ear to h av e co m e f

ro m t h e testim o n y ad d u ced at th e p relim in ary h e arin g in th is case. 4 0¶88. Because the State rebut t e d t h e presum p tion of unf

airness through the agreed-upon

m ock voir dire—dem onstrating an im partial jury could be drawn f rom Harrison County 19 — the trial judge did not abuse her discretion by deny ing Garcia’s m o tion to change venue. See Welde , 3 So. 3d at 119.
III. EVIDENCE Issue 3: Did the t r i a l c o u r t r e l y o n “ u n c onstitutionally adm itted

evidence” w hen m aking its sentencing decision? ¶89. As his third c laim e d error, Garcia a r gues the t rial judge relied on “unconstitutionally adm itted evidence” w hen m aking her sentencing deci s i o n . Specif ically , he challenges the adm ission of

the Xbox internet searches and his statem ents to the police, which he tried to
suppress pretrial. He also chal l e n g e s t he adm ission of the State pathologist’s expert testim o ny , to which he never o bjected. “The a dm ission of evidence

. . . i s l ef t to the sound discretion of the trial judge.” Havard v. State , 928 So

. 2d 771, 7 97 (Miss. 2 006) (quoting
Minor v. State , 831 So. 2 d 1116, 1120 (Miss. 2002)). Af t er review, we f

i nd t he trial judge did not abuse her discretion by adm itting these three categories of evidence.
A. Internet Searches on Garcia’s Xbox 360 ¶90. Garcia f

irst argues the trial judge erred by deny ing h i s mo t i on in lim ine to exclude evidence of the internet searches c onducted through his Xbox 360. At the m otion hearing,

19 A t o ral arg u m en t, G arcia’s co u n sel i n s i n u ate d t h a t, b ecau se th e j u ro rs w h o h ad b een q u estio n ed k n ew th e y w o u l d n o t in f act h av e to serv e o n a d eath -p e n alty case, th eir an sw ers m ay n o t h av e b een tru th f u l. B u t t h i s n ew ly r aised sp ecu latio n ig n o res th at G arcia’s law y ers ag reed t o th is ap p r o ach

. A n d it cu ts b o th w a y s b ecau se th e o p p o site co u ld b e j u st as easily arg u ed

— th at th ese f

o u rteen p eo p le’s an sw ers w ere m o r e tru t h f u l b ecau s e n o n e h ad in cen tiv e to lie to escap e j u ry serv ice f o r a l en g t h y cap ital-m

u rd er trial f

o r w h ich th ey m ay h av e b een seq u estered

. 4 1an FBI f

orensic e xam iner testif

i ed these searches—which were of a sexually explicit a nd violent n ature and involved t erm s describing y oung f em a l es—had originated f

rom the Xbox seized f rom Garcia’s bedroom and had been conducted in the week bef ore J T ’ s mu r d e r . Garcia objected to the adm ission o f the searches based on Mississippi Rule o f Evidence 901, which requires evidence be authenticated bef ore adm i ssion. H e a l s o objected, citing Mis s i ssippi Rule of Evidence 403. This rule grants trial courts discretion to exclude otherwise adm issible evidence if its probative va l u e is outweighed by the danger of unf air prejudice. ¶91. In c laim i ng the searches had not b een properly authenticated under Rule 901, Garcia likened this evidence t o t he s ocial-m edi a m essages purportedly sent by the def endant in
Sm ith v . State , 136 So. 3d 424 (Miss. 2014). In Sm ith , this Court ruled the m essages were
not properly authenticated as being what they purported to be—m essages created and sent by the def

endant. The prim ary

concern in Sm ith was the potential f or f abrication—that is, creating a f

ake social-m e dia account using som eone else’s nam e and m asquerading as that
person. Id. at 432-33. “ Because of the special concerns regarding f abrication,” we ruled that “‘the f act that an electronic com m unication o n i ts f

ace purports to o riginate f r om a certain person’s social networking a cc o u nt is generally i nsuf f icient standing alone to authenticate that person as the author of the com m unications.’” Id. at 433 (quoting Cam pb e l l v. State , 382 S.W .3d 545, 550 (Tex. Ct. App. 2012)). ¶92. Here, by contrast, we are not dealing w ith an electronic com m unication p urporting to originate f

rom Garcia’s social-m edia account. W e a re dealing w i t h electronic searches

4 2indisputably conducted on G arcia’s elec tronic device. And when it com es to the

authentication of internet searches, courts have f ound that evidence that search e s w e r e

c o n d u c t e d on the def

endant’s device is suf

f i cient to m a ke a prim a f acie case o f authentication. Saunders v. State , 241 So. 3d 645, 648-49 (Miss. Ct. App. 2018) (holding that the screen shot of a text m essage f ound o n a phone in the def e ndant’s possession m et a prim a f acie showing of authenticity ); see a lso Hoey v. State , 519 S.W .3d 7 45, 757-58 (Ark. Ct. App. 2017) (holding that testim ony that internet searches cam e f rom two sm art phones f ound in the def

endant’s possession was suf f icient t o a u thenticate them ); H olzheuser v. State , 828 S.E.2d 664, 668-69 (Ga. Ct. App. 2019) (holding that im ages and notes f ound on the d ef endant’s p ersonal c ell phone w e r e s u ffi c i e n t l y a u t h e n t i c ated); United States v. Lubich , 72 M.J. 170, 175 (C.A.A.F. 2013) (holding t hat a prim a f acie s howing of authent icity had been m ade by evidence that incrim inating internet searches were m ade u sing de f endant’s account). Indeed, in Sm i th , this Court surm ised that a social- me d i a m essage potentially could be authenticated by evidence “that the com m unication originated f

rom the p urported sender’s personal com

puter . . . .” Sm ith , 136 So. 3d at 433. ¶93. As the trial judge ruled, the possibility that som e of the searches on the Xbox could have b een conducted by som eone else besides Garcia g oes to the weight of this evidence, not its authenticity

. 20 See Holzheuser , 828 S.E.2d a t 6 68 (“To the extent that Holzheuser argues that the inf

orm ation on his phone could have been t he product of a d if f erent person’s use of

20 A t h is g u i lty -p l ea h earin g , G arcia ad m itted m ak in g so m e o f th e search es, b u t h e claim ed h e accid en t ally ty p ed “tw een ” in s tead o f “teen .” O th er search es h e su g g ested w ere m ad e b y G ray , w h o G a rcia claim e d h a d b o rro w e d h is X b o x th at w eek

. 4 3his phone without his k n o wledge or p erm ission, this argum ent g oes to weight, not

authenticity .”); M

cLem ore v. State , No. 02-15-00229-CR, 2016 W L 4395778 (Tex. Ct. App. Aug. 18, 2016) (“The p ossibilities that som e one accessed the data bef ore appellant owned the phone or while h e owned it b ut was not in possession of it are alternative scenarios that the jury w as entitled to assess upon the adm ission of the evidence.”); L ubich , 72 M.J. at 175 (n o t i n g t h a t , once R

ule 9 01’s standard had b een m et, the def e ndant had the opportunity to

cross-exam ine the governm ent expert on “the possibility that som eone else was sitting at a

com puter that [ t h e d e f

endant] previously logged onto and entered the inf orm ation without her knowledge”). ¶94. As this Court h as said, “A pa r t y n e e d o n l y ma k e a p r i ma f a cie showing of authenticity , not a f

u ll a rgum e nt on a d missibility

. Once a prim a f acie c ase is m ade, the evidence goes to the jury and it is the jury w ho will ultim ately determ ine the authenticity of the evidence, n ot the court.” Walters v . State , 206 S o . 3 d 5 24, 535 (Miss. 2016) (quoting
Sewell v. State , 721 S o . 2d 129, 140 (Miss. 1998)). In other words, the State was “not required to r u l e o u t all possibilities inconsistent with authenticity .” Jones v. S tate , 466 S.W

. 3d 252, 262 (Tex. Ct. App. 2015). ¶95. The State m ade a prim a f acie showing that the i nternet searches were what the State claim ed them to be—internet searches m ade on Garcia’s Xbox. The State was not required

to rule o ut the possibility that the internet searches could have been conducted by som eone other than Garcia. Theref ore, the trial judge did n ot abuse her d iscr e t i o n by f inding this evidence had been suf

f iciently authenticated.

4 4¶96. Turning t o Rule 403, th e t r i a l j u d g e d i d n ot abuse her discretion by f inding the probative value o f the searches was not outweighed b y any unf air prejudice. See M.R.E. 403.
W h ile Garcia tries to d iscount the p robative value—nam ely through his denial he was the one who m ade the searches—the probative v alue was certainly high. The s earches were f or child pornography t h at m im icked the acts Garcia adm i tted carry i ng out. And the searches were

m ade just day s bef

ore Garcia acted. So any c laim of unf air prejudice is unf

o unded u nder this highly discretionary

rule. ¶97. Also unf

ounded is Garcia’s claim , r a i s e d f o r t h e f i r st tim e on appeal, that the trial judge should h ave excluded the searches based on Mississippi Rule of Evidence 404(b)(1), which deem s “ [ e]vidence of a crim e, wrong, or other act

. . . not adm issible to prove a person’s c haracter in o r der to show that on a particular occasion the person acted in accordance with t he character.” M.R.E. 4 0 4 ( b ) ( 1 ). Not only m ay the Xbox e vidence be considered intrinsic t o t he charged sexual-battery -based m urder, but what Garcia is now calling inadm i ssible c haracter evidence f alls well within obviously a pplicable exceptions to Rule 404(b)(1), f

ound i n Rule 404(b)(2). Under 4 0 4 ( b )(2), “[ t]his evidence m ay be adm issible f

or another purpose, such as proving m otive, opportunity , i n t e n t , p reparation, plan, knowledge, identity , absence of m istake, or lack o f a ccident.” M.R.E. 404(b)(2). The internet searches certainly go to the issues of

m otive, intent, preparation, and plan.
B. Garcia’s V

oluntary Statem ent to Police ¶98. Next, G arcia argues the t rial judge viola t e d h is Fourth, Fif th, Sixth, and Fourteenth
Am endm ent rights w hen she denied his m o tion to suppress his statem ents t o the p olice and

4 5their f

ruits. Garcia argues t hat the f irst recorded conversation in the police c ar with Detective Fulks violated his Miranda rights. See Miranda , 384 U.S. at 444. He f urther reasons that inf orm ation f

r om the car conversation was used to gather m ore inf orm a tion i n t h e f

orm al police interview, bef

ore which he was advised of and w aived his M iranda rights. And it was his adm issions d

uring the police interview that f o rm ed t he probab l e - c a use basis f or the search w arrant of his apartm ent. Theref ore, he c oncludes, both statem e nts and the evidence f rom his apartm ent should have been suppressed. S ee Marshall , 584 So. 2 d at 438 (explaining that the “f

ruit o f the poisonous tree”—or exclusionary rule—“prohibits th e introduction of d

erivative e vidence ” that is the product of evidence obtained in violation of the Fourth Am endm ent (quoting M urray , 487 U.S. at 536)). ¶99. But, a s the t rial c ourt f ound, f or Miranda rights to attach, Garcia had to have been “in custody ” while o n his way to the police station. Hopkins v. State , 799 S o. 2 d 874, 878 (Miss. 2001) (citing M

iranda , 384 U .S. at 444; Oregon v. Mathiason , 429 U.S. 492, 97 S. Ct. 711,
50 L. Ed. 2d 7 14 (1977); Moore v. State , 3 4 4 S o . 2d 7 31 (Miss. 1977)). “The test f or whether a person i s in c ustody is whether a reasonable person would f eel he was in custody and depends upon the totality of the circum stances,” and [ t]he f actors to be c onsidered include t he place and tim e of the interrogation, the people present, the am ount of f orce or phy s ical restrain t u s e d by the of f icers, the l ength and f

orm of the questions, whether the def endant com e s to the authorities voluntarily , and what t he def endant is told about the situation.
Id. (cit i ng Hunt v. State , 687 So. 2d 1154, 1 160 (Miss. 1996); Porter v. State , 616 So. 2d
8 9 9 , 9 07 (Miss. 1993)). Com m ander Brown testif ied Garcia approached him volunta r i l y during the s earch of Gray ’s apartm ent. Detective Fulks then testif ied Garcia voluntarily

4 6agreed to accom pany Fulks—who at the tim e was a patrol of f icer—to the police station to speak w ith detectives. W hen Garcia got into the back o f the police car, he w as not restrained.
He w as f r ee to leave and could have asked Detective Fulks to p ull over or turn around at any point. G a r c i a was n ot delivered to the s ally port like other suspects, and he was not interrogated. Having watch e d t he video of the car r ide, the t rial court noted it was Garcia who initiated t he conversation and any questions Detective Fulks asked dealt with a general conversation between the t wo—they were not i nvestigator y . So the evidence supports the trial court’s determ ination that Garcia was not in custody

. ¶100. On appeal, Garcia does n ot con t e nd h e was in custody when he voluntarily got into the police car. Rather, h e suggests that, as s oon as he m e ntioned he had r um m aged through the trailer day s bef

ore, Detective F ulks s hould have Mirandized him

. But Detective Fulks testif i ed that, during the car r i de, he had no reason t o suspect Garcia had com m itted a separate crim e o f b urglary based on his statem ent a b out his f

ingerprints. A t that point, Detective Fulks was sim

p ly giving a witness a ride to the police station as part of the ongoing investigation of JT’s m

urder. ¶101. Garcia’s claim that the car ride som ehow turned into a custodial investigation of his burglary of the trailer has no basis. A s the United States Suprem e C o u r t e xplained in
Miranda , “Our decision is not intended to h am per the t raditional f

unction of police of

f icers in i nvestigating crim e. . . . General on-the-scene questioning a s t o f acts s u rrounding a crim e

or other general q

uestioning of citizens in t he f act-f i nding p rocess i s n o t a f

f ected by our holding.” Miranda , 3 84 U.S. a t 477 (citation om i tted). Garcia’s statem ent w as m a de while

4 7a patrol of

f icer voluntarily transported him to the police station as part of the f a c t-f inding
process. He was not in custody

. Theref ore, the trial court did not err by deny ing his m otion to suppress the video of the car ride and its f ruits.
C. The State Pathologist’s Expert Testim ony ¶102. Finally , Garcia argues f or the f irst tim e on appeal t h a t D r . L e V a u ghn’s testim ony about JT’s cause of death violated his constitutional right to conf ront his accuser. See U.S. Const. am end VI. Rely ing o n B ullcom ing v. N ew Mexico , 564 U. S

. 647, 652, 131 S. Ct. 2705, 2710, 180 L. Ed. 2d 610 (2011), Garcia clai ms D r . LeVaughn’s testim ony was im p roper “surrogate testim ony ” f o r Dr. McGarry , the coroner who perf orm ed JT’s autopsy

. ¶103. G a r c i a adm its he did n ot object to Dr. LeVaughn’s t e s t i mo n y . A n d “ [ i ] f n o
contem poraneous objection is m ade, the error, if any , is waived. T his rule is not dim inished in a capital case.” Ronk v. State , 172 So. 3 d 1112, 1134 (Miss. 2015) (quoting Cole v. State , 525 So. 2d 365, 369 (Miss. 1987)). ¶104. Still, Garcia a sks this Court to review f or plain error. “Under the plain-error doctrine, [ this Court] can recognize obvious error which was not p roperly raised by the def endant and which af f ects a d e f endant’s f undam ental, substantive right.” Am brose v . State , 254 So. 3d 77, 136 ( Miss. 2018) (quoting Conners v. State , 92 S o. 3d 676, 682 (Miss. 2012)). “For the plain-error d octr i n e t o a pply , there m ust have been an e rror that r esulted in a m anif est

m iscarriage of j ustice or seriously af f ects the f a irness, integrity o r public rep u t a t ion of judicial proceedings.” I

d . H e r e , there was no error at all—let alone one t hat resulted in a

m anif est m iscarriage of

justice.

4 8¶105. In Bullcom ing , the Suprem e Court was presented with a specif ic question: wh e t her the Conf

r o ntation Clause perm its the prosecution to introduce a forensic l aboratory report c ontaining a t e s t i m o n i a l c e r t i

f i c a t i o n

— m a d e for the purpose of proving a partic u l a r f act—through the in-court t estim ony of a s c i e ntist who did not sign the certif ication o r perf

orm or o bserve t h e t e s t reported in the certif

ication.
Bullc o m ing , 564 U.S. at 652 (em phasis added). The plurality answered this question by holding “that surrogate testim ony of that order does not m eet t he constitutional requirem ent.”
Id. ¶106. But this Court is not presented with the sam e question. The State did not adm it Dr. McGarry ’s autopsy report through Dr. LeVaughn. So Bullcom ing’s specif ic concern of “surrogate t estim ony ” i s not at issue. Instead, Dr. LeVaughn was adm itted as an expert in pathology

. A nd he gave his i ndependent expert opinion t hat JT had been sexually assaulted bef ore she died a nd that s he died by strangulation. As Garcia points o ut, Dr. LeVaughn did rely i n part on Dr. McGarry ’s autopsy report and Of f icer Koon’s autopsy photos to f orm his expert opinion. But this f act does not place his testim ony i n t he Bullcom ing surrogatetestim o ny category

. ¶107. As Justice Sotom ay or noted in her special concurrence, Bullcom i ng was “not a case in which an expert witness was asked f or his independent opin i on about underly ing testim o nial reports that were not them selves adm itted i nto e vidence.” Id. at 673 ( Sotom ay or, J., concurring). “W e would f ace a dif f erent question,” she observed, “ if asked to determ ine the constitutionality of allowing an expert witness to d iscuss others’ t estim onial statem ents

4 9if the testim onial statem ents w ere not them selves a dm itted as evidence.” Id. (Sotom ay or, J.,

concurring)). ¶108. The S uprem e Court f aced this dif

f e rent question in William s v. I llinois , 567 U.S. 50, 67, 132 S

. Ct. 2221, 2233, 183 L

. E d

. 2 d 89 (2012). And a plurality concluded expert testim o ny of this n ature d oes not violate the Conf rontation Clause because the o ut-of -court
statem e nts o n which the expert relies are not being of f e r ed to prove t he t ruth of the m atter asserted. Rather, they explain the assum p tions on which the opinion rests. Id. a t 5 7 -58 (Justice Alito authored the judgm ent, joined b y Chief Justice Roberts and Justices Kennedy

a n d B r ey er. Justice Thom as concurred in the j udgm ent.). A m ajority of this Court h a s sim ilarly agreed that an expert pathologist c alled to give her independent opinion as to cause of d eath does not v iolate Bullcom ing ’s surrogate-testim ony prohibition. C hristian v. State , 207 S o. 3d 1207, 1 225 (Miss. 2016) (Justice Maxwell specially concurred, joined by Chief Justice W aller, Presiding Justice Randolph, and Justices Lam a r, Colem an, and Beam .). ¶109. Thus, G arcia’s Bullcom ing argum ent lacks m e rit. And the trial judge did not plainly err by adm itting Dr. LeVaughn’s expert testim ony . IV. RECUSAL
Issue 5: Once Garcia w aived his right to a jury at sentencing, should

the trial judge have recused sua sponte based o n eithe r her pre-sentencing ex posure to inform a t ion not ordinarily presented to the j ury o r her personal view s o n the death penalty and Garcia’s m itigation theory ? ¶110. Next, Garcia argues he “was deprived o f a f air sentencing tribunal because the judge’s pretrial exposure to conf idential inf

orma tion that would ordinarily not b e k nown to a

5 0sentencing f a c t f inder, and her s elf

-adm itted predispositions and intention to consider extra-record m a tters disqualif ied her f rom being the trier of f act.” Essentially , Garcia characterizes the t rial judge’s war n ings to Garcia about what he would be g iving up if he chose bench sentencing over j ury sentencing as the judge’s “f ree adm i [ s s i on]

. . . that she would b e f

o llowing her own p redelictions [ sic] and pre-existing perception, as well as inf orm ation outside the record, in arriving at a s e ntencing decision.” Based on this alleged adm ission, Garcia claim s the trial judge should have recused, e ven though Garcia concedes he never asked her to. ¶111. Because Garcia never sought th e t r i a l j u d g e ’ s r e c usal, t his c laim is procedurally barred. Rice v. State , 134 So. 3d 2 92, 299 ( Miss. 2014) (holding that a petitioner’s claim of

a biased trial judge was procedurally barred on appeal due to the f ailure of the petitioner to f ile a m o tion to recuse at trial). Garcia chose to waive his r ight to a jury f or sentencing after the tri al j udge’s thorough explanation of t he disadvantages and dif f erences of judge sentencing, as opposed to jury sentencing. S pecif ically , the trial judge brought to Garcia’s attention the very circum stance Garc i a now claim s m ade h is sentencing hearing f undam enta l l y u n f

a i r

— the f act the judge had been privy to inf orm ation t hat a j ury would

never see. Aware of this reality , Garcia chose to f orego his r ight to jury sentencing. So he

cannot now cr a f

t t h o s e w arnings into a claim that the trial judge’s acting as sentencer was f undam entally

unf air. ¶112. Further, his com

p l aint that the judge should have recused sua sponte based on her own adm itted im

partiality or inabil i t y t o b e f a i r has no m erit. This Court recognizes that “trial

5 1judges are conf r onted d aily w ith evidence that would tend to m ake def endants appear m ore culpable than not. W e presum e t hat our trial judges are aptly equipped t o handle these issues and apply the law without f ear of undue prejudice.” S cott v. State , 8 So. 3d 8 55, 8 60 (Miss. 2008). The transcript of t he January 17, 2017 waiver-of -jury

- sentencing hearing speaks f or itself

. Nowhere d oes the judge insist she would f ollow her own predispositions or base her decision on inf

orm ation outside the record. Instead, the trial judge caref ully explained her b a c k g r o u n d and t hat s he was privy to inf orm ation and experiences that a jury would not
possess. S he also gave Garcia m ultiple opportunities to withdraw h is m otion to waive jury sentencing af

t er consulting with counsel. So, despite Garcia’s a t tem pt to m i scharacterize the judge’s words and actions, the judge’s January 17, 2017 c onversation with Garcia leaves no doubt about the validity o f t he presum ption t hat Judge Dodson, “ sworn to adm inister im p artial justice, [ wa]s qualif ied and unbiased.” Jones v. State , 841 So. 2d 1 15, 1 35 (Miss. 2003). ¶113. In a ddition to the January 17, 2017 hearing, Garcia points to the trial judge’s com m ent
to D r. Storer at t he N ovem ber 22, 2016 com

petency hearing that she “would r ather have the death penalty than a lif

e without f

or several reasons[ ,] [ o]ne of w hich is that I w o u l d h a v e

m y own cell where n o one else would b e a nd m y own things that no one e lse would bother.” Garcia claim s this is e vidence of a predisposition toward the death penalty that m ight have im p acted her sentencing decision. ¶114. But again, Garcia never sought t o have the trial judge recuse based o n this statem ent, which was m ade m o nths bef ore he decided to waive jury sentencing. S o again t his issue is

5 2procedurally barred. Rice , 134 So. 3d at 299. Further, this one com m ent taken out of context

is not evidence that t he judge was s o biased in f avor of the death penalty that she should have recused sua sponte

. Instead, a f u ller reading of the record b elies Garcia’s accusation that the judge w a s b i a s e d. At the end of the Novem ber 22, 2016 hearing, the judge e xplained to Garcia t hat her com m e nt—which wa s ma d e i n the context o f w hether it was irrational to pref er having o ne’s own room on death row—was m erely part of an academ i c exercise and

was by no m eans intended to sway Garcia one way or another. Moreover, during the January 17, 2017 hearing, the judge explained to Garcia that, in her previous roles of prosecutor and def ense a t torney , she had argued f or and against the death penalty

. Bef ore she accepted Garcia’s waiver of

jury sentencing, the judge questioned Garcia as to whether he believed,

“ i f the proof is there that [ she] would have any hesitation at all i n im p osing t h e d e a t h penalty ” and “if the proof is not there that [ she] would have any hesitation at all in im posing lif e without parole.” And s he only accepted his w aiver of a jury a f t er Garcia a ssured her he

was “ n o t h e dging [ his] bets here thinking [ t he judge] would lean o ne way or the other[ .]” Instead, G arcia s tated that he u nderstood that the judge would m ake a sentencing d e c i s ion just as a jury

would. ¶115. Finally , Garcia asserts the sentencing order revealed the trial judge’s “disqualif y ing views.” S pecif

i cally , he alleges that the t r i a l judge c ategorically rejected t he m itigation evidence presented by Dr. Storer. But the order shows the judge did consider Dr. Storer’s

m itigation testim o ny . The order also shows she properly considered his testim ony in the

5 3context of m itigation a nd did not, as Garcia claim s on appeal, use this m ental-health evidence

of f ered in m itigation as an aggravating f a ctor justif

y ing the death penalty

. ¶116. “In determ i ning w hether a judge should have recused h[ er]self , the reviewing court

m ust consider the trial as a whole and exam ine every ruling to d eterm ine if those rulings were prejudicial to the com

plaining party .” Jones , 8 41 So. 2 d at 135 (citing Hunter v. S tate , 684 So. 2d 625, 630-31 (Miss. 1996)). Reviewing the record as a w h ole, there is n o evidence to support Garcia’s contention that, despite not m ov i n g f o r t h e trial judge’s recusal, the trial judge s till should have disqualif i ed herself sua sponte based on p ersonal b ias or an inability to be im partial.
V. DEATH PENALTY
Issue 6: Was the d eath penalty im posed on Garcia in violation of the

United States Constitution? ¶117. In his sixth issue on appeal, Garcia argues the trial judge e rred by deny ing his pretrial

m otion t o declare Mississippi’s entire death-penalty s tatutory schem e u nconstitutional. The trial judge rejected G arcia’s m otion, f i nding this Court’s decisions have consistently f ound “that the current death penalty statutes are constitutional and that in f act the im position of the death penalty as that process is o u tlined in our s tatutes and our c ase law is constitutional.”
On appeal, Garcia concedes t he law supports the trial judge’s ruling. He “acknowledges that

m ajorities of neither this Court nor the United States S uprem e Court have y et a dopt e d t h e positions h e takes here[ .]” Yet he asserts his “positions are legally m eritorious and warrant revisiting and abandoning any precedent inconsistent with them

. ”

5 4¶118. In addition to not bein g s u p p o r t e d by the law, the s am e argum ents Garcia asserts

against the death penalty were advanced and r ejected in two prior d eath-penalty appeals bef ore the Court. See Am brose , 254 So. 3d at 149-151 ( rejecting t he specif ic argum ents that the f ailure to include m ens rea f actors or aggravating circum stances in t he i ndictm ent renders the d eath sen t e n c e u nconstitutional, that Mississippi’s s tatutory d eath p enalty schem e is unconstitutional f

or p i ecem eal reasons, and that M ississippi ’s capital s tatutory schem e
perm itting the im

position o f a death sentence violates the Eighth Am endm ent in t o t o ); Evans , 226 So. 3 d at 36-40 (rejecting the s pecif ic argum ents that u se of the sam e crim e t o capitalize the hom icide and as a n aggravat o r violated the Eighth Am endm ent, that M ississippi’s death-penalty s c hem e is generally unconstitutional, t hat t h e f a i l u r e to include aggravating circum stances in the indictm ent renders the sentence unconstitutional, and that M ississippi’s death-penalty schem e is unconstitutional f o r a dditional reasons). The one exception is Garcia’ s a r g um ent that this Court should r evisit the constitutionality o f the death penalty based o n Justice Brey er’s dissent f rom the denial of certiorari in Jordan v. Mississippi , 138 S. Ct. 2567, 2569-70, 201 L

. E d

. 2d 1104 (2018) (Brey er, J., dissenting f r om the denial of certiorari). ¶119. I n h i s d i s s e n t , J u s t i c e B r e y e r e x p r e ssed concern over what he views as t h e “geographic arbitrariness” of the im position of t he death penalty

. I d. at 2 570. Justice Brey er observed how “ [ d]eath sentences , while declining in num ber, have b ecom e increasingly concentrated i n an ever-sm aller num b er of counties”—the Second Circuit C ourt District of Mississippi being o n e of t hose areas of concentration. I d. at 2569. And Justice Brey er

5 5repeated his concern t hat two other capital def e ndants m ay have been sentenced to death, not because their crim es r ef

lect the “worst of t he worst” but because they c o m m itted those crim es in the Second Circuit Court District, which is where Garcia also com m itted his capital crim e. Id. at 2570; see also Reed v. Louisiana , 137 S. Ct. 787, 197 L. Ed. 2d 258 (2017) (Brey er, J. d issenting f

r om denial o f certiorari) (arguing sentences originating f rom C add o Parish, Louisiana, are geographically arbitrary ); Tucker v. Louisiana , 136 S. Ct. 1801, 195 L. Ed. 2d 774 (2016) ( Brey er, J., dissenting f rom denial of c e rtiorari) ( sam e); Glossip v. Gross , 135 S. Ct. 2 726, 2 7 61, 192 L. E d. 2d 761 (2015) (Brey er, J., dissenting) (asser t i n g that geographical arbitrariness is national in scope). ¶120. In h is b rief

, Garcia presents statistical data to support Justice Brey er’s position. But bey ond Justice Brey er’s dissent to a denial of certiorari, Garcia presents no l aw supporting his argum ent that the g eographical c oncentration of the im position of the death penalty

r e n d e r s the death sentences i m posed in areas l ike the Second Circuit Court Dist r i c t o f Mississippi arbitrary and thereby u nconstitutional. Justice Brey e r pitched his geographical arbitrariness argum ent in his d i s sent in Glossip and was joined by just one other justice. Glossip , 135 S. C t. at 2761 (Brey er, J., dissenting). The Jordan d enial-of -certiorari dissent

was at least the t hird tim e since Glossip that Justice Brey er h as advanced h is g eographicalarbitrariness argum ent to n o avail. Jordan , 138 S. C t

. a t 2569-70; Reed , 137 S

. Ct. 787;
Tucker , 136 S. Ct. 1801. And Garcia cites no other state o r f e deral courts that h ave ruled the death penalty unconstitutional based on the f act the death penalty has b een im posed in higher

5 6concentration in certain geographical areas, such a s the S e c o n d Circuit Court District of

Mississippi. ¶121. Because Garcia provides no legal support f or this a r gum ent that the trial j udge erred by deny ing his pretrial m otion to declare the death penalty unconstitutional on its f ace, we f ind no reversible error.
Issue 7: I s G a r c i a ’ s d e a t h sentence constitutionally and s t a t u t o r i l y

disproportionate? ¶122. I n his n ext issue, Garcia turns f rom a f acial to an as-applied challenge of h i s d e a t h

sentence. He argues that, because he suf f e rs f rom anxiety disorder, whic h h e d e scribes as

a “ severe m ental i llness,” 21 i m posing the death penalty on him is just as categoricall y disproportionate as im

posing the d eath penalty on a juvenile or som eone who is i ntellectually disabled. See Roper v. S im m ons , 54 3 U

. S

. 5 5 1 , 1 2 5 S. Ct. 1183, 161 L. E d. 2d 1 (2005) (holding that execution of individuals who were under eighteen y ears of age at tim e of their capital crim es is prohibited by the Eighth Am e ndm e nt); Atkins v. V irginia , 536 U.S. 304,
122 S. C t. 2242, 153 L. Ed. 2d 335 (2002) (holding that execution of i ntellectually disabled crim inals is prohibited by the Eighth Am endm ent). But the argum e nt that an anxiety disorder

exem pts individuals f

rom t h e d e a th penalty was rejected by a m ajority o f this Court in
Dickerson v

. State , 1 75 So. 3d 8, 17-18 (Miss. 2 0 15). As does Garcia, t he def endant in
Dickerson “liken[ ed] t he m entally ill to the m entally retarded and to juveniles, who ha v e

21 We n o te th at th e r eco r d d o es n o t s u p p o rt G arcia’s arg u m en t th at h e su f f ers f ro m a severe m en tal illn ess. H is o w n ex p ert, D r. S to rer, testif ied th at G arcia’s an x iety d iso rd er, w h ile a m en tal illn ess, w as “n o t a sev ere an d p ersisten t m en tal illn ess o f th e ty p e t h at w o u ld alter so m eo n e’s p e rcep tio n o f reality .” 5 7‘dim inished personal c ulpability ,’ and who are constitutionally ineligi b l e f or t he death penalty

. . . .” I

d. at 17 ( citing Atkins , 536 U.S. 304; Roper , 543 U.S. 551). A nd he asked this Court to hold that m e ntally ill def endants are exem

pt f rom t he death penalty

. Id. ¶123. In response, this C ourt looked to the Fif th Circuit, which has repeatedly rejected the
argum ent that suf

f ering f rom a m ental illness is t he sam e as being intellectually disabled. Id.
at 18 (citing Ripkowski v. Thaler , 438 Fed. Appx. 296, 303 (5th Cir. 2011); In re Neville , 440 F.3d 2 20, 221 (5th Cir. 2006); In re Woods , 155 Fed. Appx. 132, 136 (5th Cir. 2005)).
More im portant, “the [ United S tates ] S u prem e Court has never held that m ental illness

rem oves a def

endant f r om the c lass of persons who are constitutionally eligible f or a death
sentence.” Id. (quoting Ripkowski , 438 Fed. Appx. at 3 03). T his C ourt has held that it could

not “ take the Atkins opinion—which w a s s o s p ecif ic t o m ental retardation that the Court cited and discussed the c l i n i cal def inition of m e ntal retardation—and apply i t to all other

m ental disorders.” Id. “ To do so would be no dif f e rent than tak i n g R o

per and expanding it to preclude execution of crim inals under age twenty -one, rather t han a g e eighteen as the Suprem e Court explicitly held.” Id. ¶124. Garcia never argued to the trial court—let a l one proved—he is intellectually disabled.
In f act, Dr. Storer t estif

ied “Garcia h a s no def

icits whatsoever regarding his intellectual f unctioning.” See i

d. at 24 (def

ining intellectual disability as including “signif i cantly subaverage intellectual f

unctioning”). And because he was twenty -nine y ears old when he

com m itted his capital crim e, his reliance on Atkins and Roper is m isplaced.

5 8¶125. For the sam e r e a s o n s a r t i c u l a t ed in Dickerson , we r eject Garcia’s argum ent that, based on his anxiety disorder, his death sentence in constitutionally disproportionate.
VI. CUMULATIVE ERROR
Issue 8: Did the trial judge com m i t errors, in the ms e l v e s harm less,

that cum ulatively require reversal? ¶126. As his f

inal issue, Garcia argues cum ulative e rror. But a prerequisite o f cum ulative

error is error. The cum

ulative-error doctrine perm its this Court, “[ u]pon appellate review of

cases in which [ i t ] f

ind[ s] harm less error or any error that is not specif ically f ound to be

r e v e r s i b l e in and of itself ,” to reverse when “the cum ulative e f f ect o f all errors c om m itt e d during the trial deprived the def e ndant of a f

undam entally f

air and im partial trial.” Moffett

v. State , 49 So. 3d 1 073, 1116 (Mi s s . 2010) (quoting Byrom v. State , 863 So. 2d 836, 847 (Miss. 2003)). Garcia has f ailed to dem onstrate any errors occurred during his sentencing. Theref ore, the cum

ulative-error doctrine does not apply

. VII. STATUTORY PROPORTIONALITY REVIEW ¶127. As a f

inal ma t t e r , t h i s C o u r t mu s t r eview the proportionality of Garcia’s death sentence. Miss. Code Ann. § 99-19-105 (Rev. 2015). ¶128. First, t his Court m ust ask whether the s e n t e n c e o f d e a t h w a s i m p osed under the inf luence of passion, prejudice or any other arbitrary f actor. Miss. C ode Ann. § 99-19- 105(3)(a). W e have a lready addressed in Section I V of this opinion G arcia’s argum ent that

t h e t r i a l judge should have recused as sentencer based on allegedly adm i tted im pro p e r inf luences on her sentencing decision. For t he sam e reasons, w e f ind G arcia’s sentence was not inf luenced by

passion, prejudice, or any other arbitrary

f actor.

5 9¶129. Second, this Court m ust ask if the evidence support the judge’s f inding of statutory aggravating circum stances. Miss. Code Ann. § 9 9-19-105(3)(b). The judge f ound two aggravating circum stances—(1) Garcia killed JT during the com m ission of a s exual battery and (2) JT’s m

urder was especially heinous, atrocious, a n d cruel. Miss. Code Ann. § 99-19- 101(5)(d); Miss. Code Ann. § 99-19-101(5)(i). The record supports both f indings. Garcia adm itted under oath t hat he sexually a ssaulted f ive-y e ar-old JT by inserting his penis in her anus. He also told the court that h e thought s h e had died while he was raping her but only later r ealized s he w as m erely unconscious. W hile Garcia claim ed that J T had already been bound by the socks when he arrived a t t h e t r a i l e r , Garcia adm itted he was the one who decided to hang J T by her neck f r om the bathroom window. He did this so he could rinse his

sem en of f her. H e then lef

t h e r half -naked body hanging f

rom t hat w indow. In addition to these f acts, other e vidence dem onstrated the especially heinous, atrocious, and cruel nature of Garcia’s crim e. In the day s l eading up to the crim e, G a r cia had conduct e d i n t ernet searches of the pornographic depiction o f kidnaping and r aping o f y oung girls. If h e was not the one who in f

act kidnaped JT, h e did adm ittedly rape her when presented with her sm all body , bound f

a ce down in a c h a i r i n a f i l t h y trailer. An FBI agent later described it as the

m ost disgusting crim e scene he had ever worked. D r. LeVaughn t estif ied t he sexual assault would have been painf

ul and traum atic f

or the f ive-y e ar-old JT. Dr. L eVaughn also opined that, based on the scratch m arks on her neck, JT t ried t o f re e h e r s elf f

r om the sock-based

noose around her neck as s h e w a s s trangled. S o the e v idence c learly supports the judge’s f inding of both statutory

aggravating circum stances.

6 0¶130. Finally , we m ust ask if the s e n tence o f death is excessive or disproportionate to the penalty im

posed in sim ilar cases, considering b oth the crim e and the def endant. Miss. Code
Ann. § 99-19-105(3)(c). 22 W h en f aced w ith the capital m

urder of a y oung victim com m itted during the course of sexual battery , this Court has repeatedly and consistently

held that the death penalty is not disproportionate. E.g. , Loden v. State , 971 S o. 2 d 548, 571 (Miss. 2007) (holding the death penalty w as not disproportionate f or capital m

urder com m i tted d

uring the

com m ission of kidnaping and sexual battery of a sixteen-y ear-old); Havard v . State , 928 So. 2d 7 7 1, 804 (Mi s s . 2 0 0 6 ) (holding the death penalty was not disproportionate f o r capital

mu r d er com m itted during the com m i ssion of a sexual battery of a six-m onth-old inf an t ) ; Evans v . State , 7 25 So. 2d 613, 708 (Miss. 1 997) ( holding the d eath penalty was not disproportionate f

or capital m

u r der com m itted during the c o m m ission of sexual b a t t e r y o f

a ten-y ear-old); Walker v. State , 671 So. 2d 581, 6 31 (Miss. 1995) (“f ind[ ing] that a thorough consideration of W alker, his crim e [ of c a p i tal m urder d uring the com m ission o f sexual battery of teenager] and t he sentence i m p osed i n this case, as c o m pared t o . . . a ll other death penalty cases, indicates the death penalty is proportionate”).
Conclusion ¶131. Garcia was com

petent t o waive his right to a jury at s entencing. This waiver included waiving his right to appeal his m otion to change venue. Still, we additionally f ind the trial

22 B ecau se n eith er ag g rav atin g circu m stan ce w as f o u n d to b e in v alid , t h i s C o u rt d o es n o t h a v e to ad d ress “w h e th er th e rem ain in g ag g rav atin g circu m stan ces are o u t w eig h ed b y th e m itig a tin g c i r c u m stan ces o r w h eth er th e in clu sio n o f an y i n v a lid circu m stan ce w as h arm l ess erro r, o r b o th .” M i ss. C o d e A n n . § 9 9 -1 9 -1 0 5 (3 ) (d )

.
6 1judge’s denial of this m otion was not an abuse o f discretion. At the sentencing hearing, the

trial judge d id n ot err in he r e v i d e n t i ary r ulings, did n ot i m

p roperly consider non-record evidence, and was not disqualif ied by any personal bias. Her decision that the aggravating f actors outweighed the m itigating circum stances is supp o r t e d by the record. And the sentenced im

posed—death—is propo r t i o nate com pared to other s im ilar cases. Theref ore, we af f irm Garcia’s sentence. ¶132. AFFIRMED. RANDOLPH, C.J., CO L E MAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS IN PART AND I N R ESULT WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J. KING, PRESIDING JUSTICE, CONCURRING IN P ART AND IN RESULT: ¶133. I d i s a g r e e w i t h the propriety of using a m ock jury in this, or any , crim inal case t o determ ine whether a change of venue is warranted. However, b ecause Garcia wa i ved this issue, any error in using a m ock jury is not reversible. ¶134. “Upon f

iling an application f

or change of venue supported by two af f idavits af f irm ing the def endant’s inability to r eceive a f ai r trial, there arises a presum ption t hat a n im

partial jury cannot be obtained.” W e l d e v . S t a t e , 3 So. 3d 113, 118 (Miss. 2009). T he State m ay then r ebut that p r esum

ption “by p r o ving f

rom voir dire that the trial court im paneled an im p artial jury .” Id. (internal quotation m a rks om itted) (quoting Holland v. State , 705 So. 2d 307, 3 36 ( Miss. 1997)). The State can use voir dire o f the jury venire f or the specif

ic trial

to rebut the pres u mption because “[ i]t i s f undam ental and essential t o o ur f orm of
governm ent that all persons charged with a crim e have the right to a f air t rial by an im

partial

6 2jury .” W

hite v. State , 4 95 So. 2d 1346, 1348 (Miss. 1986). In sum , the State can rebut the
presum ption with v o ir dire of the actual jury venire f or t he def endant’s c rim inal trial, because the d ef endant i s entitled to have a f air a nd im partial trial jury

. A m o ck j ury does not suf f ice,

as t hat j ury will not be the sam e jury that tries the def endant. It should never be a substitute f or ensuring the i m

p a rtiality o f the im

paneled j ury f

or the def e ndant’s trial. Moreover, it should never be an excuse f or a trial court to m ake a less-than-com plete venue analy sis; in other words, a trial court should not sim p ly rely on i ts assessm ent of t he m ock j ury and f ail

t o c o mp lete a thorough venue analy sis. Additionally , I especially disagree with the use of

a m ock jury when the def

endant objects to i ts use. The juror sam ple used in a m ock jury m ay be dissim ilar to the jury

venire f or trial. For e xam

ple, the m ock jury in this case was m ade
up o f thirty jurors, a nd it is unclear f r o m w h ich district they cam e. For trial, the court planned on creating a special jury veni r e b y s e n ding out six h undred juror sum m onses. Clearly , the dy

nam ics of the two groups would likely be vastly dif f erent. ¶135. However, the trial c ourt in this case did conduct a thorough venue a n a l y sis in this

case. 23 F urtherm ore, the t r i al court gave Garcia the option to renew the m otion t o change

venue once his actual jury venire was present, and Garcia waived this i ssue. Garcia agreed

to the use of the m ock jury and f ailed to m eaningf

ully o bject to the use of the m ock jury on appeal, thus waiving the issue. Even if this Court were to exam ine this i s s u e u n d er plain

error review, considering the heightened standard we a pply t o death penalty c ases, this issue would be without m erit. The trial judge repeatedly told Garcia and h is d ef ense counsel that

23 T h e m aj o rity

o u tlin es th e trial co u rt’s an aly sis o n th ese issu es.

6 3Garcia could renew his m otion to change v enue once the jury venire was present. 24 Thus,

Garcia could have renewed his m o tion t o ensure that his trial jury was im partial once his case had progressed to that stage of the proceedings. 25 ¶136. I caution courts agai n s t u sing m ock j uries in m otions f or c hange of venue, because doing so is not a substitute f or ensuring an im

partial trial jury . The im

partiality of the trial jur y , t he im

partial nature of such being a right g uaranteed to d ef endants, can only be determ ined by

considering the actual trial jury venire. However, the use o f a m ock jury in this case did not prevent Garcia f rom raising the issue again once presented w ith h is trial jury venire, as the trial c ourt specif i cally expressed that he could raise his m otion w hen f aced with his venire. Further, Garcia waived the issue. Thus, I concur in part and in result. KITCHENS, P.J., JOINS THIS OPINION.

24 A t o n e o f th e h earin g s o n th e m o tio n to ch an g e v en u e, th e trial co u r t stated , “A n d o f co u rse . . . [ d en y in g th e m o tio n to ch an g e v en u e ] d o es n o t p ro h ib it th e d ef en se f ro m raisin g it ag ain sh o u ld circu m stan ces ch an g e o r sh o u l d w e stay h ere, b r in g in a v en ire an d it tu rn s o u t th a t to o m an y f o lk s o n th e v e n ire d o h av e f ix ed o p in io n s.” A t a sep arate h e arin g o n v ario u s m atters, th e trial co u rt s t a t e d t h a t “ t h e co u rt h as alread y ru led o n th e m o tio n f o r ch an g e o f v e n u e . B u t as th e p arties w ell k n o w if th e situ atio n ch an g es, th e d ef e n se is, o f

co u r se, f ree to r aise th at ag ain .”

25 I d isag ree w ith t h e m a

j o rity th at G a rcia w aiv ed h is ap p ellate ch allen g e to th e v en u e issu e sim p ly b y p lead in g g u ilty an d w aiv in g h is se n t en cin g j u r y . H o w ev er, th e m aj o rity n o n eth e less a n aly

zes th e v en u e i s s u e o n t h e m erits, an d I a g ree w ith th e m aj o rity ’s co n clu s io n t h at th e t rial co u rt d i d n o t err b y d e n y i n g th e m o tio n to ch a n g e v en u e. T h e p ro b lem atic n atu r e o f th e v en u e issu e relates to th e u se o f th e m o ck j u ry , an d G arcia w aiv ed a s p e cif i c ch allen g e t o t h e u s e o f th e m o ck j u ry b y ag reein g to it, b y f a ilin g to ren ew h is m o tio n to ch an g e v en u e , a n d b y f ailin g to m e an in g f

u lly raise th e issu e o f th e m o ck j u ry o n ap p eal.” 6 4APPENDIX DEATH CASES AFFIRMED BY THIS COURT Abdur Rahim Am brose v. State , 254 So. 3d 77 (Miss. 2018). Curtis Giovanni Flow e r s v . S tate , 240 So. 3 d 1082 (Miss. 2017), r ev’d and remanded , 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019). Tim othy Nelson Evans v. State , 226 So. 3d 1 (Miss. 2017).
Jam es Cobb Hutto III v. State , 227 So. 3d 963 (Miss. 2017). David Cox v. State , 183 So. 3d 36 (Miss. 2015).
David Dickerson v. State , 175 So. 3d 8 (Miss. 2015).
Tim othy Robert Ronk v. State , 172 So. 3d 1112 (Miss. 2015).
Curtis Giovanni F

lowers v. State , 158 So. 3d 1009 (Miss. 2014), vacated , 136 S. Ct. 2157, 195 L. Ed. 2d 817 (2016).
Caleb C orrothers v. State , 148 So. 3d 278 (Miss. 2014), leave to seek PCR granted in part and denied in part , 255 So. 3d 99 (Miss. 2017).
Jason Lee Keller v . State , 138 So. 3d 8 17 (Miss. 2014), leave to seek PCR granted in part and denied in part , 229 So. 3d 715 (Miss. 2017). Leslie Galloway III v. State , 122 So. 3d 614 (Miss. 2013). Bobby Batiste v. State , 121 So. 3d 808 (Miss. 2013), leave to seek PCR g ranted , 184 So. 3d 290 (Miss. 2016). Roger Lee Gillett v. State , 56 So. 3d 469 (Miss. 2010). Moffett v. State , 49 So. 3d 1073 (Miss. 2010). Pitchford v. State , 45 So. 3d 216 (Miss. 2010). Goff v. State , 14 So. 3d 625 (Miss. 2009).
Wilson v. State , 21 So. 3d 572 (Miss. 2009).

6 5Cham berlin v. State , 989 So. 2d 320 (Miss. 2008).

Loden v. State , 971 So. 2d 548 (Miss. 2007). King v. State , 960 So. 2d 413 (Miss. 2007).
Bennett v. State , 9 3 3 So. 2d 930 (Miss. 2006).
Havard v. State , 928 So. 2d 771 (Miss. 2006). Spicer v. State , 921 So. 2d 292 (Miss. 2006). Hodges v. State , 912 So. 2d 730 (Miss. 2005). Walker v. State , 913 So. 2d 198 (Miss. 2005).
Le v. State , 913 So. 2d 913 (Miss. 2005), leave to s e ek PCR denied , 967 So. 2d 627 (Miss. 2007), l eave t o seek second PCR granted , 2 0 1 3

- D R

- 0 0 327-SCT (Miss. Jan. 26, 2016). Brown v. State , 890 So. 2d 901 (Miss. 2004).
Powers v. State , 883 So. 2d 20 (Miss. 2004)
Branch v. State , 882 So. 2d 36 (Miss. 2004).
Scott v. State , 878 So. 2d 933 (Miss. 2004). Lynch v. State , 877 So. 2d 1254 (Miss. 2004). Dycus v. State , 875 So. 2d 140 (Miss. 2004). Byrom v. State , 863 So. 2d 836 (Miss. 2003).
Howell v. State , 860 So. 2d 704 (Miss. 2003).
Howard v. State , 853 So. 2d 781 (Miss. 2003).
Walker v. State , 815 So. 2d 1209 (Miss. 2002). *f ollowing rem a nd. Bishop v. State

, 812 So. 2d 934 (Miss. 2002).
Stevens v. State , 806 So. 2d 1031 (Miss. 2002).

6 6Grayson v. State , 806 So. 2d 241 (Miss. 2002).

Knox v. State , 805 So. 2d 527 (Miss. 2002).
Sim m ons v. State , 805 So. 2d 452 (Miss. 2002). Berry v. State , 802 So. 2d 1033 (Miss. 2001).
Snow v. State , 800 So. 2d 472 (Miss. 2001).
Mitchell v. State , 792 So. 2d 192 (Miss. 2001).
Puckett v. State , 788 So. 2d 752 (Miss. 2001). * f ollowing rem and.
Goodin v. State , 787 So. 2d 639 (Miss. 2001).
Jordan v. State , 786 So. 2d 987 (Miss. 2001). Manning v. State , 765 So. 2d 516 (Miss. 2000). *f ollowing rem and. Eskridge v. State , 765 So. 2d 508 (Miss. 2000). McGilberry v. State , 741 So. 2d 894 (Miss. 1999) . Puckett v. State , 737 So. 2d 322 (Miss. 1999). *rem anded f or B atson hearing. Manning v. State , 7 35 So. 2d 323 (Miss. 1999). *rem a nded f or Batson h earing. Hughes v. State , 735 So. 2d 238 (Miss. 1999).
Turner v. State , 732 So. 2d 937 (Miss. 1999).
Sm ith v. State , 7 29 So. 2d 1191 (Miss. 1998).
Burns v. State , 729 So. 2d 203 (Miss. 1998).
Jordan v. State , 728 So. 2d 1088 (Miss. 1998). Gray v. State , 728 So. 2d 36 (Miss. 1998). Manning v. State , 726 So. 2d 1152 (Miss. 1998).

6 7Woodward v. State , 726 So. 2d 524 (Miss. 1997).

Bell v . S tate , 725 S o. 2d 8 36 (Miss. 1 998), post-conviction relief granted i n part and denied in part , 725 So. 2d 836 (Miss. 2011). Evans v. State , 725 So. 2d 613 (Miss. 1997).
Brewer v. State , 725 So. 2d 106 (Miss. 1998). Crawford v. State , 716 So. 2d 1028 (Miss. 1998).
Doss v. State , 709 So. 2d 369 (Miss. 1996).
Underwood v. State , 708 So. 2d 18 (Miss. 1998).
Holland v. State , 705 So. 2d 307 (Miss. 1997).
Wells v. State , 698 So. 2d 497 (Miss. 1997).
Wilcher v. State , 697 So. 2d 1087 (Miss. 1997). Wiley v. State , 691 So. 2d 959 (Miss. 1997).
Brown v. State , 690 So. 2d 276 (Miss. 1996).
Sim on v. State , 688 So. 2d 791 (Miss.1997).
Jackson v. State , 684 So. 2d 1213 (Miss. 1996).
William s v. State , 684 So. 2d 1179 (Miss. 1996).
Davis v. State , 684 So. 2d 643 (Miss. 1996). Taylor v. State , 682 So. 2d. 359 (Miss. 1996).
Brown v. State , 682 So. 2d 340 (Miss. 1996).
Blue v. State , 674 So. 2d 1184 (Miss. 1996). Holly v. State , 671 So. 2d 32 (Miss. 1996).
Walker v. State , 671 So. 2d 581 (Miss. 1995).

6 8Russell v. State , 670 So. 2d 816 (Miss. 1995).

Ballenger v. State , 667 So. 2d 1242 (Miss. 1995).
Davis v. State , 660 So. 2d 1228 (Miss. 1995).
Carr v. State , 655 So. 2d 824 (Miss. 1995).
Mack v. State , 650 So. 2d 1289 (Miss. 1994).
Chase v. State , 645 So. 2d 829 (Miss. 1994).
Foster v. State , 639 So. 2d 1263 (Miss. 1994).
Conner v. State , 632 So. 2d 1239 (Miss. 1993).
Hansen v. State , 592 So. 2d 114 (Miss. 1991).

* Shell v. State , 554 So. 2d 887 (Miss. 1989); Shell v. M ississippi , 498 U.S. 1 (1990) (reversing, i n part, and r em anding); Shell v. State , 595 So. 2d 1323 (Miss. 1992) (rem anding f or new sentencing hearing).
Davis v. State , 551 So. 2d 165 (Miss. 1989).
Minnick v. State , 551 So. 2d 77 (Miss. 1989).

* P i n kney v. State , 538 S o. 2d 329 (Miss. 1989); Pinkney v . Mississippi , 4 9 4 U

. S

. 1075 (1990) (vacating and rem anding); Pinkney v. State , 6 02 So. 2d 1177 ( Miss. 1992) (rem anding f

or new sentencing hearing).
*Clem ons v. State , 535 So. 2d 1354 (Miss. 1988); Clem ons v. Mississippi , 494 U.S. 738 (1990) (vacating and rem a nding); Clem ons v . State , 593 So. 2d 1004 (Miss. 1992) (rem anding f

or new sentencing hearing).
Woodward v. State , 533 So. 2d 418 (Miss. 1988).
Nixon v. State , 533 So. 2d 1078 (Miss. 1987).
Cole v. State , 525 So. 2d 365 (Miss. 1987).
Lockett v. State , 517 So. 2d 1346 (Miss. 1987).

6 9Lockett v. State , 517 So. 2d 1317 (Miss. 1987).

Faraga v. State , 514 So. 2d 295 (Miss. 1987).
*Jones v. S

tate , 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi , 4 87 U .S. 1230 (1988) (vacating and r em anding); Jones v. S tate , 602 So. 2d 1 170 (Miss. 1 992) (rem anding f or new sentencing hearing). Wiley v. State , 484 So. 2d 339 (Miss. 1986).
Johnson v. State , 477 So. 2d 196 (Miss. 1985). Gray v. State , 472 So. 2d 409 (Miss. 1985).
Cabello v. State , 471 So. 2d 332 (Miss. 1985).
Jordan v. State , 464 So. 2d 475 (Miss. 1985).
Wilcher v. State , 455 So. 2d 727 (Miss. 1984).
Billiot v. State , 454 So. 2d 445 (Miss. 1984). Stringer v. State , 454 So. 2d 468 (Miss. 1984). Dufour v. State , 453 So. 2d 337 (Miss. 1984).
Neal v. State , 451 So. 2d 743 (Miss. 1984).
Booker v. State , 449 So. 2d 209 (Miss. 1984).
Wilcher v. State , 448 So. 2d 927 (Miss. 1984).
Caldwell v. State , 443 So. 2d 806 (Miss. 1983). Irving v. State , 441 So. 2d 846 (Miss. 1983).
Tokm an v. State , 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State , 435 So. 2d 645 (Miss. 1983).
Hill v. State , 432 So. 2d 427 (Miss. 1983).

7 0Pruett v. State , 431 So. 2d 1101 (Miss. 1983).

Gilliard v. State , 428 So. 2d 576 (Miss. 1983).
Evans v. State , 422 So. 2d 737 (Miss. 1982). King v. State , 421 So. 2d 1009 (Miss. 1982).
Wheat v. State , 420 So. 2d 229 (Miss. 1982).
Sm ith v. State , 419 So. 2d 563 (Miss. 1982).
Johnson v. State , 416 So. 2d 383 (Miss.1982).
Edwards v. State , 413 So. 2d 1007 (Miss. 1982).
Bullock v. State , 391 So. 2d 601 (Miss. 1980).
Reddix v. State , 381 So. 2d 999 (Miss. 1980). Jones v. State , 381 So. 2d 983 (Miss. 1980).
Culberson v. State , 379 So. 2d 499 (Miss. 1979). Gray v. State , 375 So. 2d 994 (Miss. 1979).
Jordan v. State , 365 So. 2d 1198 (Miss. 1978).
V oyles v. State , 362 So. 2d 1236 (Miss. 1978). Irving v. State , 361 So. 2d 1360 (Miss. 1978). Washington v. State , 361 So. 2d 6l (Miss. 1978).
Bell v. State , 360 So. 2d 1206 (Miss. 1978). *Case was originally a f

f irm ed in this Court but on rem and f rom U. S

. Suprem e Court, case was rem anded by

this Court f

or a new sentencing hearing.

7 1DEATH CASES REVERSED AS TO GUILT PHASE A ND SENTENCING PHASE Curtis Giovanni Flowers v. State , 287 So. 3d 9 05 ( Miss. 2019), on remand from 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019). Justin Barrett Blakeney v. State , 236 So. 3d 11 (Miss. 2017). Sh e r w o o d B r o w n v

. S t a t e , 2 0 1 7

- D R

- 0 0 2 0 6

- S C T (Miss. Oct. 26, 2 017) (order granting post-conviction relief and vacating underly ing convictions and sentences and rem anding to the DeSoto County

Circuit Court f

or a new trial). Erik Wayne Hollie v. State , 174 So. 3d 824 (Miss. 2015). Manning v

. State , 158 So. 3d 302 (Miss. 2015) (reversing denial of post-conviction relief )

. Byrom v. State , 2014-DR-00230-SCT (Miss. April 3, 2014) (order). Ross v. State , 9 5 4 So. 2d 968 (Miss. 2007). Flowers v. State , 9 4 7 So. 2d 910 (Miss. 2006). Flowers v. State , 842 So. 2d 531 (Miss. 2003). Randall v. State , 806 So. 2d 185 (Miss. 2002). Flowers v. State , 773 So. 2d 309 (Miss. 2000). Edwards v. State , 737 So. 2d 275 (Miss. 1999). Sm ith v. State , 733 So. 2d 793 (Miss. 1999).
Porter v. State , 732 So. 2d 899 (Miss. 1999). Kolberg v. State , 704 So. 2d 1307 (Miss. 1997).
Snelson v. State , 704 So. 2d 452 (Miss. 1997).
Fusilier v. State , 702 So. 2d 388 (Miss. 1997).
Howard v. State , 701 So. 2d 274 (Miss. 1997).

7 2Lester v. State , 692 So. 2d 755 (Miss. 1997).

Hunter v. State , 684 So. 2d 625 (Miss. 1996).
Lanier v. State , 684 So. 2d 93 (Miss. 1996).
Giles v. State , 650 So. 2d 846 (Miss. 1995). Duplantis v. State , 644 So. 2d 1235 (Miss. 1994).
Harrison v. State , 635 So. 2d 894 (Miss. 1994).
Butler v. State , 608 So. 2d 314 (Miss. 1992).
Jenkins v. State , 607 So. 2d 1171 (Miss. 1992).
Abram v. State , 606 So. 2d 1015 (Miss. 1992). Balfour v. State , 598 So. 2d 731 (Miss. 1992). Griffin v. State , 557 So. 2d 542 (Miss. 1990).
Bevill v. State , 556 So. 2d 699 (Miss. 1990).
West v. State , 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State , 548 So. 2d 389 (Miss. 1989).
Mease v. State , 539 So. 2d 1324 (Miss. 1989).
Houston v. State , 531 So. 2d 598 (Miss. 1988).
West v. State , 519 So. 2d 418 (Miss. 1988).
Davis v. State , 512 So. 2d 129l (Miss. 1987).
William son v. State , 512 So. 2d 868 (Miss. 1987).
Foster v. State , 508 So. 2d 1111 (Miss. 1987).
Sm ith v. State , 499 So. 2d 750 (Miss. 1986).

7 3West v. State , 485 So. 2d 681 (Miss. 1985).

Fisher v. State , 481 So. 2d 203 (Miss. 1985).
Johnson v. State , 476 So. 2d 1195 (Miss. 1985).
Fuselier v. State , 468 So. 2d 45 (Miss. 1985).
West v. State , 463 So. 2d 1048 (Miss. 1985).
Jones v. State , 461 So. 2d 686 (Miss. 1984). Moffett v. State , 456 So. 2d 714 (Miss. 1984).
Lanier v. State , 450 So. 2d 69 (Miss. 1984). Laney v. State , 421 So. 2d 1216 (Miss. 1982).

7 4DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT Bell v. State , 160 So. 3d 188 (Miss. 2016).
Reddix v. State , 547 So. 2d 792 (Miss. 1989).
Wheeler v. State , 536 So. 2d 1341 (Miss. 1988).
White v. State , 532 So. 2d 1207 (Miss. 1988).
Bullock v. State , 525 So. 2d 764 (Miss. 1987).
Edwards v. State , 441 So. 2d 84 (Miss. l983). Dycus v. State , 440 So. 2d 246 (Miss. 1983).
Colem an v. State , 378 So. 2d 640 (Miss. 1979).

7 5DEATH CASES REVERSED AS TO P UNISHMENT AND REMANDED FOR A NEW TRIAL

ON SENTENCING PHASE ONLY Fulgham v. State , 4 6 So. 3d 315 (Miss. 2010).
Rubenstein v. State , 941 So. 2d 735 (Miss. 2006). King v. State , 784 So. 2d 884 (Miss. 2001).
Walker v. State , 740 So. 2d 873 (Miss. 1999).
Watts v. State , 7 33 So. 2d 214 (Miss. 1999).
West v. State , 725 So. 2d 872 (Miss. 1998).
Sm ith v. State , 724 So. 2d 280 (Miss. 1998). Berry v. State , 703 So. 2d 269 (Miss. 1997).
Booker v. State , 699 So. 2d 132 (Miss. 1997). Taylor v. State , 672 So. 2d 1246 (Miss. 1996).
*Shell v. State , 554 So. 2d 887 (Miss. 1989); Shell v. M ississippi , 498 U.S. 1 (1990) (reversing, in part, and rem anding); Shell v. State 595 So. 2d 1323 (Miss. 1992) (rem anding f or new sentencing hearing)

.

* Pinkney v

. S t a t e , 538 So. 2d 329 (Miss. 1989); Pinkney v. Mississippi, 494 U.S. 1075 (1990) (vacating and rem anding); Pinkney v. State , 602 So

. 2d 1177 ( Miss. 1992) (rem anding f

or new sentencing hearing).
*Clem ons v. State , 535 So. 2d 1354 (Miss. 1988); Clem ons v . Mississippi , 494 U.S. 738 (1990) (vacating and rem a nding); Clem ons v. Stat e , 593 So. 2d 1004 (Miss. 1992) (rem anding f

or new sentencing hearing).
*Jones v. S

tate , 517 So. 2d 1295 ( Miss. 1987); Jones v. Mississippi , 4 87 U .S. 1230 (1988) (vacating and r em anding); Jones v. State , 6 02 So. 2d 1170 (Miss. 1 992) (rem anding f or new sentencing hearing). Russell v. State , 607 So. 2d 1107 (Miss. 1992).
Holland v. State , 587 So. 2d 848 (Miss. 1991).
7 6Willie v. State , 585 So. 2d 660 (Miss. 1991).

Ladner v. State , 584 So. 2d 743 (Miss. 1991).
Mackbee v. State , 575 So. 2d 16 (Miss. 1990). Berry v. State , 575 So. 2d 1 (Miss. 1990). Turner v. State , 573 So. 2d 657 (Miss. 1990).
State v. Tokm an , 564 So. 2d 1339 (Miss. 1990).
Johnson v. State , 547 So. 2d 59 (Miss. 1989).
William s v

. State , 544 So. 2d 782 (Miss. 1989), sentence aff’d , 684 So. 2d 1179 (1996).
Lanier v. State , 533 So. 2d 473 (Miss. 1988). Stringer v. State , 500 So. 2d 928 (Miss. 1986).
Pinkton v. State , 481 So. 2d 306 (Miss. 1985).
Mhoon v. State , 464 So. 2d 77 (Miss. 1985). Cannaday v. State , 455 So. 2d 713 (Miss. 1984).
W i l e y v. State , 4 49 So. 2d 756 (Miss. 1984), a ff’d , W iley v. State , 484 So. 2d 3 3 9 (Miss. 1986), cert. denied , 479 U.S. 1036 ( 1988), resentencing o r d e r ed , 635 So. 2d 802 (Miss. 1993), following writ of habeas corpus i ssued sub nom. Wiley v. Puckett , 969 So. 2d 86, 105-106 (5th Cir. 1992), resentencing affirmed , 691 So. 2d 959 (Miss. 1997).
William s v. State , 445 So. 2d 798 (Miss. 1984) (case was originally af f irm ed in this Court but on rem and f

rom U

. S. Suprem e Court, case w as r em anded by this Court f or a new sentencing hearing).

7 7