1IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-DR-00896-SCT

RICHARD GERALD JORDAN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 04/24/1998

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION

COUNSEL

BY: DAVID P. VOISIN

ROBERT RYAN

ATTORNEY FOR APPELLEE:

DISTRICT ATTORNEY: OFFICE OF THE ATTORNEY GENERAL

BY: MARVIN L.WHITE, JR.

CONO CARANA

NATURE OF THE CASE CIVIL - DEATH PENALTY - POST

CONVICTION RELIEF

DISPOSITION:

MOTION FOR REHEARING:

MANDATE ISSUED: LEAVE TO SEEK POST-CONVICTION

RELIEF, DENIED - 03/10/2005

EN BANC.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. Once again this Court reviews Richard Gerald Jordan’s death penalty case. Since his

convict ion in 1976 for the murder of Edwina Marter, Jordan’s case has been reviewed a total

of six times by various courts, including this Court, the United States Court of Appeals for the

Fifth Circuit and the United States Supreme Court.2 FACTUAL BACKGROUND

¶2. In January of 1976, Richard Gerald Jordan traveled to Gulfport from Louisiana. He

telephoned the Gulf National Bank and asked to speak to a loan officer. After he was told that

Charles Marter could assist him, Jordan ended the ca ll and found Marter’s Gulfport residence

address in the telephone directory. He went to the Marter’s residence and, pretending to be

an employee of the electric company, gained entr ance to the house. He kidnapped Charles’s

wife, Edwina, forcing her to leave her three-year-old son sleeping alone in the house. Jordan

forced Edwina to drive to a deserted area of the DeSoto National Forest.

¶3. Jordan shot Edwina in the back of the head. The defense claimed that Edwina tried to

run away and that Jordan attempted to fire a warning shot over her head. The bullet entered h e r

skull at the lower right occipit al area of the brain and traveled upward, exiting above her left

eye. The State claimed that Jordan executed Edwina by firing one bullet into the back of her

head as she knelt in front of him.

¶4. Jordan then disposed of the murder weapon and ca lled Charles Marter, telling him that

he had kidnapped Edwina and that she was alive and well. Jordan demanded that Charles leave

$25,000 on a blue jacket that he would find on the side of U.S. Highway 49. However, when

Charles attempted to leave the money, he did not find the jacket. Jordan called Charles the

next day and again demanded the $25,000. He assured Charles that Edwina was fine and that

she was concerned for her children. On his second attempt, Charles found the jacket and left

the money, as he had been instructed. When Jordan retrieved the money, two officers

attempted to arrest him. Jordan escaped but was later captured at a roadblock. He confessed1 The trial court’s exclusion of the testimony of jailers and visitors in the sentencing

phase denied petitioner his right to present all relevant evidence in mit igation. S kipper v.

South Carolina , 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986).

3 to the crime and told police where to find Edwina’s body. He cooperated with the investigating

officers, telling them where he had disposed of the gun and show ing them where he had hidden

the money and his automobile.

¶5. Jordan was convicted and sentenced to death in 1976. Subsequently, the law pertaining

to death penalty proceedings changed, and Jordan’s conviction and sentence were vacated. See

Jackson v. State

, 337 So.2d 1242 (Miss. 1976). In 1977, Jordan was retried in a bifurcated

trial and was again convicted and sentenced to death. The conviction and sentence was affirmed

by this Court in Jordan v. State

, 3 65 So. 2d 1198 (Miss. 1978), c ert. denied, 444 U.S. 885,

100 S. Ct. 175, 62 L. Ed. 2d 114 (1979). S ee also In re Jordan

, 390 So. 2d 584 (Miss. 1980)

(on petition for writ of error coram nobis).

¶6. His d eath sentence was later vacated by the U.S. Court of Appeals for the Fifth Circuit

due to unconstitutional penalty -phase instructions. J

ordan v. Watkins

, 681 F.2d 1067 (5 th

Cir.), rehearing denied sub nom. J ordan v. T

higpen , 688 F.2d 395 (5 t h Cir. 1982). The Fifth

Circuit remanded the case for a new sentencing trial.

¶7. In 1983, Jordan was again sente nced to death and that sentence was affirmed by this

Court. J ordan v. State

, 4 64 So.2d 475 (Miss. 1985). However, based on its decision in

Skipper v. South Carolina

, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), the Supreme

Court vacate d Jordan’s death sentence. 1 J ordan v. Mississippi

, 476 U.S. 1101, 106 S. Ct.4

1942, 90 L. Ed. 2d 352 ( 1986). On remand, Jordan entered into an agreement with the State

whereby he would forego another sentencing trial and accept a sent ence of life imprisonment

without parole.

¶8. In 1994, this Court invalidated that agreement, finding that lif e without parole was not

an option under then Miss. Code Ann. § 97-3-21 (1987). Once again Jordan’s case was

reversed and remanded for another sentencing hearing. J orda n v. State , 697 So. 2d 1190

(Miss. 1997). On April 24, 1998, Jordan was again sentenced to death, and this Court

affirmed that sentence in 2001. Jordan v . State , 786 So.2d 987 (Miss. 2001), c ert. denied

,

534 U.S. 1085, 122 S. Ct. 823, 151 L. Ed. 2d 705 (2002). Jordan is now seeking postconvicti on relief and has filed an application for leave to proceed in the trial court and the

petition for post-conviction relief. Finding no merit to Jordan’s claims, we deny Jordan’s

application for leave to seek post-conviction relief.

ANALYSIS

¶9. In the motion for post-convict ion relief, Jordan raises thirty claims. We have

consolidated those claims below.

I. Blood Spatter and the “Execution-style” theory

¶10. Jordan raises ten claims that ar e included under this heading. Broadly stated, Jordan

objects to the way in which the State presented its theory that Edwina Marter was killed

“execution-style.”

Jordan’s position has always been that he shot Edwina when she suddenly

ran away from him. The State refuted Jordan’s defense with Officer David Melton who5

testified that blood spatter patterns at the scene demonstrated Edwina was in a stationary

position, standing or kneeling in front of Jordan when she w a s shot. The State also presented

the testimony of f

orensic pathologist, Dr. William D. Atchison, who opined that Edwina was

not running away from Jordan and was, in fact, probably kneeling in front of him.

¶11. As he has in pas t pleadings, Jordan once again objects to the testimony of Officer David

Melton and to Melton’s quali fications as an expert witness. Melton testified for the first time

in Jordan’s 1983 trial and in every subsequent trial. The State correctly points out that the

Court has now twice considered Da vid Melton as an expert witness and the evidence regarding

blood spatter patterns. In both instances, the Court has denied Jordan relief. In the 1985 direct

appeal opinion, we held that Melton was properly qualified to express an opinion regarding

blood spatter. S ee Jordan v. State, 464 So.2d 475, 484 (Miss. 1985). Again, in the most

recent appeal, we held that the trial court properly admitted Melton’s testimony. J ordan v.

State

, 786 So.2d at 1017. The State argues that this claim cannot be re-litigated under the

provisions of Miss. Co de Ann. § 99-39-21(3). Furthermore, the State points out that any

attempt to litigate this claim on a different legal or factual theory than that previously

forwarded is barred by the provisions of Miss. Code Ann. § 99-39-21(2).

¶12. We agree that this issue has already been litigated and is now procedurally barred.

Jordan is attempting to rephrase the issue as a knowing presentation of fal se or misleading

evidence, but the underlying claim is the same one that has already been addressed and found

to have no merit.2 The law of the case doctrine stands for the proposition that whatever was once

establish e d as the controlling legal rule of decision, between the same parties in the same case,

continues to be the law of the case, so long as there is a similarity of facts. M auck v.

Columbus Hotel Co. , 741 So.2d 259, 266-67 (Miss. 1999).

6 ¶13. Notwithstanding the procedural bar, we wil l examine the merits of the claim. David

Melton had received training in the interpretation of blood stains and could opine with authority

about the blood fo und at the scene. Melton testified that he was employed by the Gulfport

Police Department from 1966-1969 and by the Harrison County Sheriff’s Dep artment from

1972-1977. He attended the Mississippi State Law Enforcement Training Academy and

received training in fingerprints and blood stains. As this Court has already determined, the trial

court did not err in allowing Melton’s testimony.

¶14. We now a lso consider the standard to be applied to Jordan’s claim that the State

knowingly presented false testimony. Jordan asserts that if there is any reasonable likelihood

that the allegedly false evi dence affected the judgment of the jury, then the defendant is

entitled to a new trial. We find that Jordan has not demonstrated a reasonable likelihood that

David Melto n’s testimony on blood spatter evidence resulted in a death sentence where it is

undisputed that Jordan was twice conv icted and sentenced to death in previous trials in which

David Melton did not testify on the issue of blood spatters. We find that the issue is without

merit.

¶15. Jordan’s next ar gument is that it is a violation of the law of the case doctrine and the

doctrines of collateral and judicial estoppel to allow the State to present evid ence that Edwina

was killed “execution-style.” 2 He argues that at the first two trials, the State acquiesced to his3 We find those cas es distinguishable. In S mith v. Groose

, the prosecution used two

contradictory statements as to when a murder occurred to con vict two defendants at separate

trials. In D rake v. Kemp there were two defendan ts in two different trials where the

prosecution argued different theories to convict each of murder. In Donnel ly v. DeChristoforo

,

there were two defendants in joint trials. Prior to the conclusion of the trial, one defendant

pled guilty to the murder. In closing arguments as to DeChristoforo the prosecutor remarked

about DeChristoforo’s motive for continuin g to stand trial after his co-defendant pled guilty.

The U.S. Sup reme Court held that the comment did not render the trial fundamentally unfair

and that DeChristoforo was not denied due process.

7 account that he shot Edwina when she tried to run away from him. He argues it was error then

for the State, in subsequent proceedings, to argue inste ad that Edwina was kneeling in front of

Jordan when she wa s shot. J ordan cites a number of federal cases for the proposition that

pursuing inconsistent theories is cause for reversal. Donnelly v. DeChristoforo , 416 U.S.

637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); Smith v. Groose

, 205 F.3d 1045, 1052 (8 th Ci r

.

2000); Drake v. Kemp , 762 F.2d 1449, 1470-79 (11 th Cir. 1985). 3

¶16. The State argues the evidence that Edwina Marter was killed execution-style was not a

new theory. The State attempted to introduce this evidence at the sentencing trial in 1977 and

the State used this theory in its re-sentencing of Jordan in 1983.

¶17. We agree with the State and also now find that no ob jection was raised on this claim at

trial or on appeal. Furthermore, Jordan could have and yet failed to raise this issue in previous

post-conviction pleadings. Therefore, Jordan’s claim that it was a violation of the law of the

case doctrine and the doctrines of collateral and equitable esto p pel to allow the State to

present evidence that Edwina was killed “execution-style” is now procedurally barre d by Miss.

Code Ann. § 99-39-21.8

¶18. Notwithstanding the procedural bar, we find this issue has no merit. In the trials prior

to 1983, the trial court never held Melton’s testimony inadmissible with reg a rd to the

substa ntive content of blood spatter testimony. Therefore, there was no law of the case as to

Melton’s testimony established in the 1977 trial. This Court previously held Melton’s blood

spatter testimony and Dr. Atchison’s testimony as to the position of the victim’s body to be

admissible. Furthermore, the State was not attempting to relitigate Jordan’s conviction, but

was introducing evidence of aggravating factors with regard to re-sentencing.

¶19. Next

, Jordan a sserts that misconduct by the special prosecutor hampered defense

counsel’s ability to raise an objection to the State’s inconsis tent theories and hampered his

abil ity to cross-examine the State’s experts about their qualifications and conclusions on the

issue of blood spatter evi dence. Jordan asserts that the special prosecutor led defense counsel,

Tom Sumrall, to believe that transcripts of prior trials were unavailable for review. Having

failed to review the tr a nscripts of prior trials, it was impossible for the defense attorney to

realize that the State was pursuing incons istent theories in the 1998 re-sentencing trial. Jordan

argues that the State’s misleading statements about the availability of the transcripts was a

violation of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

¶20. The State correctly points out that all of the tr anscripts of the earlier proceedings are

public records an

d

, as such, were equally available to the State and the defense. Also the State

argues that what Jordan describes would not be a Brady violation.

¶21. In King v. State , 656 So.2d 1168 (Miss. 1995), this Court noted:9 Unit ed States v. Spagnoulo sets forth a four-prong test to determine

whether a Brady violation has occurred mandati ng a new trial. To establish a

Brady violation a defendant must prove the following: (1) that the government

possessed evidence favorable to the defendant ( including impeachment

evidence); (2) that the defendant d oes not possess the evidence nor could he

obtain it himself with any reasonable diligence; (3) that the prosecution

suppressed the favorable evidence; and, (4) that had the ev idence been disclosed

to the defense, a reasonable probability exi sts that the outcome of the

proceedings would have been d ifferent. S pagnoulo

, 960 F.2d 990, 994 (11 th Cir.

1992), citing United States v. Meros

, 866 F.2d 1304, 1308 (11 th C ir. 1989),

(cert. denied).

656 So. 2d at 1174. It is well settled that exculpatory evidence in the possession of the

prosecution must be turned over to the accu sed in a criminal proceeding. However, as this

Court has held, the prosecution is under no duty to turn over its en tire file to the defense.

Boches v. State

, 506 So.2d 254, 563 (Miss. 19 87) (citing S cott v. State

, 359 So.2d 1355,

1361 (Miss. 1978)).

¶22. Furthermore, the affidavit of defense counsel Tom Sum rall filed with Jordan’s petition

for post-conviction relief does not support the claim that Sumrall was somehow misled as to

the existence of transcripts. Sumrall stated he knew that the transcripts generated in previous

p roceedings were voluminous. He stated he received a box full of transcripts, but then

discovered tha t some were incomplete. He explained he had generous access to the special

prosecutor’s files and tran scripts and was provided with any copies that he wanted. We find

this claim is without merit.

¶23. While much time and argument has been expended on the blood spatter evidence, that

evidence is only one portion of a larger context of evidence upon which the jury could have

sentenced Jordan to death. After a defendant is convicted of a capital offense, the trial court10

shall conduct a separate s entencing proceeding to determine whether the defendant should be

sentenced to death or life imprisonment, with or without parole. Miss. Code Ann. § 99-19-

101(1). Miss. Code Ann. § 99-19-101 provides in pertinent part:

(3) For the jury to impose a sentence of death, it must unanimously find

in writing the following:

(b) That sufficient aggravating circumstances exist as enumerated

in subsection (5) of this section; and

(c) That there are insuffici e nt mitigating circumstances, as

enumerated in subsection (6), to outweigh the aggra vating

circumstances.

Miss. Code Ann. § 99-19-101 further provides, in pertinent part:

(5) Aggravating circumstances shall be limited to the following:

(d) The capital offense was committed while the defendant was

engaged, or was an accomplic e, in the commission of, or an

attempt to commit, or flight after committing or attempting to

commit, any robbery, rape, arson, burglary, kidnapping, airc r aft

piracy, sexual battery, unnatural intercourse with any child under

the age of twelve (12), or nonconsensual unnatural intercourse

with mankind, or felonious abus e and/or battery of a child in

violation of

subsection (2) of Section 97-5-39, Mississippi Code

of 1972, or the unl

a wful use or detonation of a bomb or explosive

device.

(f) The capital offense was committed for pecuniary gain.

(h) The capital offense was especially heinous, atrocious or cruel.

Jordan was convicted of capital murder. In the bifurcated sentencing proceeding and the resentencing proceedings, the jury has found sufficient aggravating circumstances to impose the

death penalty. The jury’s finding in the most recent trial clearly indicates it found beyond a

reasonable dou

bt that Jordan murdered Edwina; the murder was committed in the commission4 Tom S u mrall (defense counsel) provided an affidavit in which he states that had he

realized M elton would be testifying as a blood spatter expert, he would have asked for funds

11 of a kidnaping; th

e murder was committed for pecuniary gain; and, it was especially heinous,

atrocious and cruel, supported by the fact that she wa s subjected to the mental torture caused

by her abduc tion from her home where she was forced to leave her three-year old son alone.

¶24. Even if the testimony on the subject of blood spatter patt erns were excluded, there were

still sufficient proof of aggravating circumstances to support Jordan’s death sentence. See

McGilberry v. State

, 843 So.2d 21, 29 (Miss. 2003) (where this Court addressed the

aggravating circumstance of whether McGilberry created a great risk of death to many persons

and held that "[i]f one aggravator is found to be invalid, we are authorized to re-weigh the

remaining aggravators against the mitigating circumstances and affirm , hold the error to be

harmless, or remand for a new sentencing hearing. Miss. Code Ann. § 99-19-105(5)(b) (Rev.

2000).”

II. Ineffective assistance of counsel

a) Blood spatter

¶25. Jordan raise s a number of claims of ineffective assistance of counsel. The first several

of those claims are that defense counsel, Tom Sumrall, was ineffective for failing to prepare

to rebut Melton’s blood spatter testimony, f or failing to hire a blood spatter expert to refute

Melton’s testimony and for failing to object, at trial, to M elton’s qualifications as an expert on

the subject. Jordan asserts that Sumrall could have and should have contacted Robert McDuff,

who represented Jordan from 1988 through 1991, to get McDuff’s files on this s ubject. 4 Jordanto hire an independent expert.

12

notes that Sumra

ll failed even to review transcripts of the previous trials, which would have

alerted Sumrall to the subject matter of Melton’s testimony.

¶26. The State points out that defense counsel, in 1998, may have been somewhat at a loss to

challenge Melton’s qualifications where this Cour t had already found no reversible error in

permitting Melton to testify as an expert. J ordan v. State

, 464 So.2d at 486. The State also

notes that Jordan ha d the services of Dr. Leroy Riddick, also a forensic pathologist, to dispute

the theory presented by Melton and Dr. Atchison.

¶27. While we agree that Melton had been found qualifi ed to testify as an expert in Jordan’s

previous trials, we are troubled by Jordan’s defense counsel’s confes sion that he failed to

realize that blood spatter evidence would be presented. Certainly, Sumrall should have realized

that such testimony was possible because Melton had testified on the subject in 1983. We find

that Sumrall’s performance was deficient on this point.

¶28. However, the analysis of this issue does not stop there. Next, we must determine

whether that deficient performance prejudiced Jordan ’s defense. In this petition, Jordan merely

states that it was prejudicial and points out that the blood spatter testimony was ce ntral to the

State’s case. A meritorious claim of ineffective assistance of counsel requires more than the

mere st atement that the defendant was prejudiced and requires more than just the petitioner’s

allegations that this subject matter was central to the State’s case. As we have noted, Jordan

was convicted and sentenced to death twice before David Melton’s blood spatter testimony was13

ever present ed to a jury. While the blood spatter testimony is clearly an emotional and highly

charged detail of Jordan’s trials after 1983, there was enough e vidence even without such

testimony to convict Jordan twice before.

¶29. The Strickland standard is familiar; whether petitioner was p rejudiced by the deficient

performance. Prejudice occurs when the defendant shows that “there is a reasonable probability

that

, but for counsel’s unprofessio nal errors, the result of the proceeding would have been

different.” A reasonable probability is a probability sufficient to undermine confidence in the

outcome. S trickland v. Washington

, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Jordan’s petition fails to meet the S trick land standard on the second prong. Jordan’s

argument that the bloo d spatter evidence was central to the case is not enough to undermine

confidence in the result. This claim is without merit.

b) Jury instructions

¶30. Jordan’s next claims of ineffective assistance of counsel pertain to the jury instructions

and the form of the verdict. Jordan argues that the jury instructions favored the State’s theory

and failed to instruct the jury on the defendant’s rebuttal of that theory. Jordan also argues, as

he has on previous appeals, that the use of the heinous, cruel and atrocious jury instructions

im properly allowed the jury an evidentiary short-cut to finding the aggravating circumstances.5 In Keys

, the jury was instructed that if it found the defendant had armed himself and

confronted the victim, then it could not find the defendant acted in self-defense.

14 ¶31. Jordan cites Keys v. State , 635 So.2d 845 (Miss. 1994), 5 in support of the argument that

the jury instructions took away the jury’s discretio n to consider his theory that the murder was

not unne cessarily tortuous or physically painful to Edwina, and, therefore, was not heinous,

atrocious and cruel. We do not agree. In Jordan’s case the jury instruction did not take away

the discretion of the jury to consider his theory of defense. Inste ad the instruction set forth the

State’s theory and provided the basis for finding aggravating circumstance that the murder was

heinous, atrocious and cruel.

¶32. As the State points out, this Court has already addres sed the merits of the underlying

claims that Jordan now raises under the guise of ineffective assistance of counsel. S ee Jordan

v. State

, 786 So.2d at 1001-04 & 1026. (where this Court addressed the exact issues on jury

instructions and found that the instructions were not unconstitutionally vague or over-broad and

that the jury’s verdict, while not in ideal form, was in suf ficient form to indicate the intent of

the jury).

¶33. We find that Jor dan’s ineffective assistance of counsel claims are based upon claims that

have already bee n raised by Jordan and addressed by this Court. S ee

, Jordan v. State

, 786 So.

2d 987 (Miss. 2001); Jordan v. State

, 464 So.2d 475 (M iss. 1985). Jordan cannot now

relitigate these issues under the guise of ineffective assistance of counsel claims. Furthermore,

Jordan cannot demonstrate that his counsel’s performanc e fell below a reasonable professional15

standard and that

counsel’s performance caused prejudice to his defense where this Court has

found the jury instructions proper, the verdict sufficient to indicate the intent of the jury and

the evidence sufficient to support the verdict. We find no merit to this claim.

¶34. In a closely related claim, Jordan argues that the trial court erred in accepting the jury’s

ve r dict which merely copied verbatim the flawed jury instructions. The jury’s verdict, in

pertinent part, was as follows:

Three, Richard Jordan committed a capital offense which was especially

heinous, atrocious &cruel & whether the murder was conscienceless and

pitiless. In support of the circumstances the State claims that Edwina Marter was

murd ered in execution style & that she was subjected to extreme mental torture

caused by her abduction from the home wherein she was forced to abandon her

unattended three-year-old child & removed to a wooded area at which time she

was shot in the back of the head by Jordan....

Jordan argues that the verdict was not in su bstantial compliance with the requirements of the

law and was not an intelligent response to the trial court’s instructions. Jordan cites H arrison

v. Smith, 379 So.2d 517, 519 (Mis s. 1980), a civil case in which the verdict appeared to find

both parties negligent without apportioning fault, and Stewart v. State

, 66 2 So.2d 552 (Miss.

1995), a criminal case i n which the jury’s verdict found the defendant guilty of both capital

murder and conspiracy to commit capital murder, rather than guilty of one or the other.

¶35. Miss. Code Ann. § 99-19-9 provides that where there has been substantial compliance

with t he law, a jury’s verdict will not be reversed for mere want of form. Case law instructs that

if the jury’s intent can be understood in a reasonably clear manner, there has been substantial

compliance and the re is no error. "[T]he basic test with reference to whether or not a verdict

is sufficient as to form is whether or not it is an intelligent answer to the issues submitted to16

the jury and expre ssed so that the intent of the jury can be understood by the court." M iss.

Valley Gas Co. v. Estate of Walker

, 725 So.2d 139, 151 (Miss. 1998); Harrison v. Smith , 379

So.2d 517, 519 (Miss. 1980) (quoting H enson Ford, Inc. v. Crews

, 249 Miss. 45, 160 So.2d

81, 85 (1964)). In C ole v. State

, 756 So.2d 12 (Miss. Ct. App. 1999), the Court of Appeals

fo und that a verdict with misspellings and unusual abbreviations was not so unclear as to be

reversible error. We find that the jury’s verdict in the present case can be understood in a

reasonably clear manner and, as such, will not be reversed just be cause it is a poor translation

of the jury instruction(s). It was not deficient performance on the defense counsel’s part to fail

to object to the form of this verdict.

¶36. Jordan also argues that defense coun sel was ineffective for failing to object because the

especially heinous aggravator “doubled up” wit h the kidnapping aggravator. He argues that in

explaining “especially heinous” the trial court explicitly referred to the extreme mental torture

caused by the abduction from her home, and that this made the especially heinous aggravator

duplicative of the kidnapping aggravator.

¶37. This Court has already addressed and decided this underlying claim. In the 2001 J o rdan

opinion, the Court stated:

The two aggravating factors of kidnapping and heinousness are not

"doubled up" in the case at hand. Jordan could have kidnapped Edwina without the

crime being hein

ous. He could have allowed Edwina to secure the safety of her

child. He did not have to kill her in the cold and inhumane way he did. After he

received his ransom, he could h ave returned her to her family, physically

unharmed. This claim is without merit.17

786 So. 2d. at 1005. Likewis e, we now find this claim under the heading of ineffective

assistance of counsel to be without merit.

¶38. Finally, Jordan argues that defense counsel s hould have objected to the special

prosecutor’s remarks during closing argu ments. Those remarks pertained to the privileges that

Jordan enjoyed, and might continue to enjoy, at the state penitentiary at Parchman and on

Jordan’s having used and misus e d the judicial system. Other remarks included the prosecutor’s

referring to Jordan as a scam artist or con man.

¶39. The State argues that, because this Court held the u nderlying substantive claims to be

without merit, Jordan cannot now sustain a claim of ineff ective assistance of counsel because

he cannot show deficient performance and actual prejudice.

¶40. We agree with

the State. In the 2001 opinion, the Court found, first, that Jordan’s

counsel did make two contemporaneous objections which were overruled. Secondly, the Court

found that Jordan himself had already introduced some of the same facts regarding his activities

and conduct at Parchman into evidence and that the remarks did not unduly prej udice the jury

against Jordan. This claim of ineffective assistance is without merit.

c) Mental Health Examination

¶41. Jordan makes several claims of error perta ining to the mental health examination

conducted by Dr. Henry Maggio prior to Jordan’s 1998 re-sentenc ing. The basis of Jordan’s

first claim is that Dr. Maggio was given a copy of a report of a previous mental health6 The materially f alse information of which Jordan complains is a statement in the

report that notes that Jordan was dishonorably discharged from the Army.

18 examination conduc t ed by Dr. Clifton Davis. Jordan argues that Dr. Davis’ report contained

materially false information and that the State was aware that the information was false. 6

¶42. At the 1998 re-sentencing t rial the defense opted not to call Dr. Maggio as a witness

because his report was unfavorable to Jordan. However, the State had a copy of Dr. Maggio’s

report and used information from that report to cross-examine a key mitigatio n witness. Jordan

argues that it was improper for the State to use the report to impeach defense witnesses because

the report was based on erroneous information and, therefore, unreliable.

¶43. The Stat e points out that it was Jordan who requested both of the mental health

examinations and that it was the trial court which ordere d that Dr. Maggio be given a copy of

Dr. Davis’ earlier report. The State committed no error in complying with the court’s order.

¶44. In the most recent op inion, this Court examined a related version of this issue and

t horoughly examined Jordan’s constitutional claims. The Court found no error in the State’s

impeachment of Jordan’s mitigation witness with info rmation from Dr. Maggio’s report where

the report was never introduced into evidence or read to the jury. Furthermore, as we held

before, the State was within its rights to use Dr. Maggio’s report to impeach the mitigation

witness as to veracity, credibility and his knowledge of the defendant when that witness’

testimony directly contradicted information contained in Dr. Maggio’s report.

¶45. The materially false information about which Jordan complains is the statement in Dr.

Davis’ report that Jordan was dishonorably discharged from the Army. Jordan includes evidence19

that he wa s honorably discharged. From the record, we find little explanation for this error in

the report. The report states that Jordan told Dr. Davis he had been dishonorably discharged.

Jordan al so admits that the information could have been entered incorrectly in the report.

There was much more information in both Dr. Davis’s report an d Dr. Maggio’s report that

Jordan does not challenge as untrue. The majority of the information used for impeaching

Jordan’s witness had absol utely nothing to do with Jordan’s discharge from the Army, honorable

or otherwise. Jordan cites U nited States v. Agurs

, 427 U.S. 97, 96 S.Ct. 2392, 49 L. Ed. 2d

342 (1976 ), for the longstanding proposition that the State has a responsibility not to present

false or misleading evidence. A gurs involved undisclosed e v idence that the murder victim had

pr ior convictions for violent crimes. The case sets out the U.S. Supreme Court’s standard for

judging the materiality of undisclosed or false evidence.

The proper standard of materiality of undis c losed evidence, and the

standard applied by the trial judge in this case, is that if the o mitted evidence

creates a reasonable doubt of guilt that did not otherwise exist, constitutional

error has been committed.

96 S. Ct. at 2401-02. The misinformation of which Jord an complains was not material.

Furthermore, it was not a denial of Jordan’s constitutional rights for the special prosecutor to

supply a copy of the earlier mental health eva luation to Dr. Maggio. Therefore, this claim is

without merit.

¶46. Next, Jordan asserts that trial counsel was ineffective for failing to inspect the files of

t he special prosecutor and/or the files of prior defense counsel, in which case he would have

found that Dr. D avis’ report contained inaccurate information as to Jordan’s discharge from the20

Army. Jordan also asserts that trial counsel had an obligation to ensure that the court-appointed

psychiatrist conducted an evaluation consistent with accepted practice.

¶47. As the State points out Dr. Maggio’s re port does in fact note that Jordan himself

explained he had been honorably discharged from the Army. Dr. Maggio was made aware of

the discrepancy during his own examination of Jordan. Jordan suffered no prejudice from the

discrepancy between the two mental health reports and he has not demonstrated that trial

counsel was ineffective for failing to object to Dr. Maggio’s report. S trickland, supra.

Therefore, this issue has no merit.

¶48. Next, Jordan asserts that he did not give a knowing and intelligent waiver prior to

cooperating with Dr. Maggio. He argues that he was never informed that anything he said to the

mental health examiners could be used against him by the State to secure a death sentence.

Jordan continues that had he known that Dr. Maggio’s report was going to be sent to the

prosecutor, he would not have cooperated with the doctor in the evaluation.

¶49. This Court h

as already addressed similar issues related to Dr. Maggio’s evaluation in its

most recent opinion. J

ordan v. State, 786 So.2d at 1006-10. This claim is procedurally barred

pursuant to Miss. Code Ann. § 99-39-21.

¶50. However, we will examine the merits of Jordan’s claim. Jordan specifically complains

that he was not aware that anything he said to Dr. Maggio could be used against him and that

because he was not aware of this, he could not have given a knowing and intelligent waiver with

respect to the use of those statemen ts at the sentencing proceedings. Jordan cites E stelle v.

Smith

, 451 U.S. 45 4, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), and G ardner v. Johnson

, 2477 As Estelle v. Smith teaches, the Fif th Amendment requires that the defendant in a

capital trial who is subjected to a court-ordered psychiatric examination be informed that he

is free to refuse to participate in that examination because its results can be used against him

at the sentencing phase of the trial to secure the death penalty. Gardner , 247 F.3d at 563.

21 F.3d 551 (5 th Cir. 200 1). 7 Estelle v. Smith provides that the Fifth and Sixth Amendments

require that a defendant be fully apprised, prior to examination, that what he says might be used

against him for sentencing purposes.

¶51. There are distinctions between Jordan’s claim and t he cases he cites. In E stelle v. Smith

,

the mental health examination was a court-ordered examination and the defense counsel w as not

aware of the scope of the examination or notified prior to the sentencing trial that the report

would be used against the defendant. Likewise, in G ardner the mental hea lth examination was

a court-ordered exam and counsel was n ot aware that it would be used against the defendant

during the sentencing phase.

¶52. In the most recent resentencing trial in this case, it was the d efense who requested

Jordan be given a mental health evaluation for the purposes of exploring whether Jordan

suffered fr o m post-traumatic stress syndrome, for purposes of mitigation. Because Jordan’s

counsel requested the psychiatric examination, he was well aware, and even intended, that

statemen ts he gave be used at the resentencing trial. Furthermore, because Dr. Maggio was

appointed upon the defendant’s request, he was not a “state actor” for purposes of an E stelle v.

Smith warning. This Court addressed a similar claim in which a defendant asserted that he was

not given adequate warni

ngs. S ee Cole v. State

, 666 So.2d 767, 780 (Miss. 1995) (the expert22

appointed by the court at the defendant’s request was not a “state actor” associated with the

prosecution).

¶53. As has already been n oted, Dr. Maggio’s report was not put in evidence nor was it read

to the jury. It was used by the prosecution to impeach a mitigation witness who testified that

he had known Jordan for many years, that he trusted him and thought him to be a good man. The

prosecutor had the witness silently read portions of Dr. M aggio’s report that included

information that Jordan emb ezzled money from his employer, joined the Army to avoid

prosecution, was convicted in a military court-martial proceeding and spent time in a federal

prison.

¶54. The warnings were not warranted in the i nstant case. However, even if it was error not

to give the warning, the error was harmless. This claim is without merit.

¶55. Next, Jordan asserts that trial counsel should have objected to the appointment of Dr.

Maggio and should have requeste d appointment of a psychologist. As we have held, a defendant

is not entitled to a psychiatrist or psychologist of his choice, but only has the right to a

competent one. M

anning v. State

, 726 So.2d 1152, 1190-91 (Miss. 1998); Woodward v.

State

, 726 So.2d 524, 528-29 (Miss. 1997); Butler v. State

, 608 So.2 d 314, 321 (Miss. 1992);

Willie v. State

, 585 So.2d 660, 671 (Miss. 1991). Jordan cannot demonstrate that his trial

counsel was deficient or any resulting pre judice from mere undeveloped assertions that another

expert would have been beneficial. C aldwell v. Mississippi

, 472 U.S. 320, 105 S.Ct. 2633, 86

L.Ed.2d 231 (1985); Burns v. State , 729 So.2d 203, 223-24 (Miss. 1998).23

¶56. Jordan provides nothing to show what prejudice arose from trial counsel’s failure to

pursue another or a different mental health expert. Therefore, Jordan fails to meet the

ineffective assistance of counsel standard set forth in Strickland v. Washington , supra

.

¶57. Jordan asserts that he was denied his right to a mental health examination because Dr.

Maggio’s eva luation was deficient. Jordan asserts that it is widely known in the defense

community that Dr. Maggio’s evaluations are cursory at best. Jordan also argue that Dr. Maggio

did not use accepted criteria to diagnose antisocial personality disorder.

¶58. We find this claim is pr ocedurally barred for failure to object at trial or raise this issue

on direct appeal. B rown v. State

, 798 So.2d 481, 491 (Miss . 2001); W iley v. State

, 750 So.2d

1193, 1208 (Miss. 1999); Foster v. State , 687 So.2d 1124, 1138 (Miss. 1996).

¶59. Notwithstanding the procedural bar, this Court has long recognized Dr. Maggio’s

qualifications and acceptance as an expert in the fiel d of psychiatry. A defendant is not entitled

to a favorable m

ental health evaluation, but is instead entitled to a competent psychiatrist and

an appro priate examination. Ake v. Oklahoma

, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d

53 (1985); J

ackson v. State, 860 So.2d 653, 669 (Miss. 2003). This claim is without merit.

III. Jury Instructions

¶60. Jordan asser

ts that the heinous, cruel and atrocious jury instructions were improper

because the aggravating factors were not defin ed with any specificity and that this created an

evidentiary shortcut for the jury. He argues that the jury was instructed that if they found that

the killing was committed execution style, then they should find the aggravating circumstance

and use it when determining whether Jordan should live or die. Jordan cites T aylor v. State

, 67224

So.2d 1246, 1275-76 (Miss. 1 996). In T aylor

, the Court found that an instruction which

informed the jury that the death penalty may be imposed if they found the murder to be

es pecially heinous, atrocious and cruel was improperly presented to the jury because there was

no evidence before the jury of how the murder was committ ed. There was evidence that the

victim was strangled and there was testimony that strangulation is a pain ful and slow way to die,

but no specific evidence

of how this strangulation was especially heinous, atrocious and cruel.

¶61. The subject of this claim is the court’s instruction to the jury at the conclusion of the

penalty phase of Jordan’s trial. Instruction number one advised the jury as follows with respect

to the especially heinous, atrocious and cruel aggravating circumstance:

Whether Richard Jordan committed a capital offense which was especially

heinous, atrocious and cruel and whether the murder was conscienceless and

pitiless. In support of this circumstance, the State claims that Edwina Marter was

murdered in execution style and that she was subjected to the ex treme mental

torture caused by her abduction from the home wherein she was forced to

abandon her unattended three year old child and removed to a wooded area at

which time she was shot in the back of the head by Jordan.

¶62. This argument has alre ady been litigated and decided against Jordan and is now

procedurally barred under the provisions of Miss. Co de Ann. § 99-39-21(3). S ee Jordan v.

State, 786 So.2d at 1002-03.

¶63. Notwithstanding the procedural bar, we find there was su fficient evidence to support the

jury instruction. This Court has found sufficient evidence to support a heinous, cruel and

atrocious jury ins truction in a factually similar case. In W oodward v. State

, 726 So.2d 524

(Miss. 1997), Woodward objected to a similar instruction, arguing that because he shot the

victim in the back of the head, killing her instantly, the murder was not heinous, cruel or25

atrocious. We disagreed and, looking to the facts of that case, found that the victim was

abducted from her car in broad daylight, forced into the defen dant’s truck and driven to a

wooded area where she was forced to her knees and made to perform fellatio on the defendant.

She was then raped, and as she tried to gather her belongings, Woodward shot her in the back

of the head. Woodward then went back and finished out his day cutting and hauling pulpwood.

The Court stated that clearly the abduction and rape of the victim was heinous, atrocious and

cruel and the fact tha t Woodward returned to his job demonstrates that the crime was

conscienceless and pitiless. Id. at 538-39.

¶64. In the p resent case, as has been stated above, Jordan abducted Edwina from her home in

broad daylig

ht, forcing her to leave her three-year-old son sleeping alone in the house. He

forced her to drive to a wooded area on the pretext that he was going to deliver her to his partner

while h e retrieved ransom money from her husband. Upon arriving at the wooded area Edwina,

undoubtedly, realized that there was no “partner” waiting for Jordan. Jordan shot her in the back

of t he head and then drove back into town and continued with his plan to extort money from

Charles Mart e r, where for two days he led Charles to believe that his wife was alive and well.

¶65. There was sufficient evidence for the jury to fi nd that Edwina’s murder was heinous,

atrocious, cruel, conscienceless and pitiless. There was no unconstitutional burden-shifting in

the jury instructions or evidentiary shortcuts for the jury. Nor were the instructions

unconstitutionally vague or overly broad. The instructions properly limits the jury’s discretion,

advising them that they may find the aggravating factor only if they find that Jordan “utilized a26

method of killin

g that inflicted physical or mental pain upon Edwina Marter before her death,

that there was mental torture and aggravation before death.” This claim is without merit.

¶66. Next, Jordan

argues that the jury instructions improperly instructed the jury to disregard

sympathy. Jordan asserts that the defense counsel was ineffective for failing to object to the

following instruction:

You should consider and weigh any aggravat ing and mitigating

circumstances, as set forth later in this instruction, but you are cautioned not to

be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public

opinion or public feeling.

This is exactly the jury instruction that has long b een approved by this Court as a proper

statement of law. However, Jordan argues that there is an intervening case in which this Court

held that sy

mpathy is a proper consideration for the jury. K ing v. State

, 784 So.2d 884 (Miss.

2001). The facts in K

ing are distinguishable from Jordan’s case. In K ing

, the trial

court

instructed the jury fr om the bench to totally disregard sympathy. K ing

, 784 So.2d at 889-90.

This Court has approved the very instructi on given to Jordan’s jury and has held that the jury

i nstruction does not inform the jury that they must disregard in toto sympathy. This claim has

no merit.

¶67. Jordan al

so argues that the jury should have been given a “catch-all” instruction as to the

fact that they should consider and weigh all of the evidence in mitigation of punish ment. Jordan

has presented this argument before on direct appeal and now raises it as an ineffective

a ssistance of counsel claim. This claim is therefore procedurally barred. Notwithstanding the

procedural bar, we will once again discuss the merits of this claim.27

¶68. At trial, Jordan presented tes timony from family members that he was a good father and

son and had a good reputation and had served his country in Vi etnam. Jordan also presented

testimony that he was a model prisoner and had been productive while incarcerated. He asserts

that the jury should have been instructed on how to consider the non-statutory mitigating factors

that were pres ented. He cites J ackson v. State

, 684 So.2d 1213, 1238 (Miss. 1996), and

Eddings v. Oklahoma

, 455 U.S. 104, 102 S. Ct. 869, F l L. Ed. 2d 1 (1982), to support his

assertion. Both of these cases stand for the proposition that a defendant is entitled to present

almost unlimited mitigating evidence.

¶69. This Court has often approved the use of a catch-all instruction as to the jury’s

consideration of mitigating evidence in a sentencing trial. W iley v. State

, 750 So.2d 1193,

1204 (Miss. 1999) (quoting Jackson v. State

, 684 S o.2d at 1213, 1238 (Miss. 1996)). In S cott

v. State , 878 So.2d 933 (Miss. 2004), the Court approved the following instruction.

Consider the following elements of mitigatio n in determining whether the

death penalty should not be imposed: Any matter--any other aspect of the

defendant's character or record, any other circumstances of the offen se brought

to you during the trial of this cause which you, the jury, deem to be mitigating on

behalf of the defendant.

Id. at 983.

¶70. Also in Scott v. State

, the Court reiterated that when conside ring a challenge to a

jury

instruction on appeal, the jury instructions are not viewed in isolation, but read as a whole to

determine if the jury was properly instructed. I d. at 966; Burton ex rel. Bradford v. Barn ett

,

615 So.2d 580, 583 (Miss. 1993). Similarly, this Court has stated that "[i]n determining whether8 This goes specifically to the mitigation testimony of Jordan’s parents who were

deceased at the time of the 1998 trial.

28 erro r lies in the granting or refusal of various instructions, the instructions actually given must

be read as a whole. When so read, if the instructions fa irly announce the law of the case and

cre ate no injustice, no reversible error will be found." C oleman v. State

, 697 So.2d 777, 782

(Miss. 1997) (quoting Collins v. State

, 691 So.2d 9 18 (Miss. 1997)). In other words, if all

instructions taken as a whole fairly, but not necessarily perfectly, ann o unce the applicable rules

of law, no error r esults. S cott v. State

, 878 So.2d 933 (Miss. 2004) (citing Milano v. State

, 790

So.2d 179, 184 (Miss. 2001)). See Austin v. State

, 784 So.2d 186, 193 (Miss. 200 1). S ee also

Agnew v. State , 783 So.2d 699, 701 (Miss. 2001).

¶71. In Jordan’s sentencing trial, the instructions clearly advised the jury it could consider

any other matter brought up during the trial as mitigating evidence. Sentencing instruction No.

1 advised the jury that “in reaching your decision, yo u may objectively consider the detailed

circumstances of the offense for which the defendant was convicted, and the character and

record of the defendant himself.” Sentencing instruction No. 3 advised the jury that the sworn

testimony that was r ead from the witness stand was entitled to the same consideration and

should be judged as to the credibility and weighed just as l ive testimony is considered. 8

Sentencing instruction No. S-5 explains that the jury must a pply reasoned judgment in light of

the totality of the circumstance. Sentencing instruction No. D-3 instructs the jury that each

individual must evaluate the evidence in mitigation and weigh each mitigation circumstance in

the balance.29

¶72. Even though the jury d id not get a standard catch-all instruction like this Court approved

in Scott

, taking the instructions as a whole, th e jury was instructed that it should consider and

weigh all of the evidence in mitigation of punishment. This claim is without merit.

IV. Due Process and Other Constitutional Claims

¶73. Jordan argues that of all the in mates sentenced to death prior to the change of law

announced in Jackson v. State

, 337 So.2d 124 2 (Miss. 1976), he is the only one who remains

on death row. All the other ultimately received a life sentence. Jordan also argues that, like

him, several death row inm ates entered into sentencing agreements whereby they agreed not to

seek parole in exchange for the State not seeking the death p enalty. He asserts that none of

those ot her inmates were re-sentenced to death following this Court’s decisions to void those

agreements. Jordan also argues that his exemplary record while in prison and evidence of

changed character entitles him to post-conviction relief.

¶74. The State poin

ts out that Jordan raised this same argument in his most recent direct

appeal and that this Court denied relief. J ordan v. State

, 7 86 So.2d at 1030. Therefore, this

claim is barred by the doctrine of res judicata under the provisions of Miss. Code Ann. § 99-39-

21(3).

¶75. Notwithstanding t he procedural bar, it is suggested that Jordan’s equal protection

argument fails. He does not raise specific details of his own re-sentencing that demonstrate

discrimination. He is not challenging a specific law or statute, nor is he asserting that he is a

member of a class to which the death penalty is unfairly imposed. Instead, he is arguing that he

is entitled to post-convictio n relief because other inmates, once on death row, have been30

resentenced to l

ife in prison. This Court has held that “...a defendant who alleges an equal

protection violation has the burden of proving "the existence of purposeful discrimination."”

Scott v. State , 878 So.2d at 993 (citing W hitus v. Georgia

, 385 U.S. 545, 550, 87 S.Ct. 643,

646, 17 L.Ed.2d 599 (1967)). Likewise, Jordan must prove the purposeful discrimination "had

a discriminatory effect" on him and the decision-makers in his case acted with discri m inatory

purpose. Wayte v. United States

, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547

(1985); Scott v. State , 878 So.2d at 993.

¶76. Jordan offers no evidence specific to his own case th at would support an inference that

the decision-makers acted with a discriminatory purpose. He asserts only that because others

have been

given life sentences, he should be given a life sentence. Jordan does not meet the

burden of proving an equal protection violation. Therefore, this claim is without merit.

¶77. Next, Jordan argues that it was error to allow the special prosecutor to prosecute this

case. He argues that the special prosecutor was not a disinterested prosecutor, rather the

prosecutor had a personal vendetta against him. T his claim has already been litigated and is now

procedurally barred pursuant to § 99-39-21(3). As to the merits of this claim, we noted in

Jordan’s most recent direct appeal, the Fifth Ci rcuit has ruled that, where special prosecutors

are appointed, district attorneys must “retain control of the prosecution.” F au lder v. Johnson

,

81 F.3d 515, 517 (5 th Cir. 1996). In this petition as on direct appeal, Jordan fails to offer any

proof that the Harrison County District Attorney’s Office did not retain control over the

prosecution of this case. We have already found that during most of the pre-trial hearings and

at trial, the District Attorney himself or one of his assistants was always present with the special31

prosecutor. Jordan v. State , 786 So.2d at 1030. Likewise, Jordan fails to demonstrate the

“prosecutorial vindictiveness” about which he complains. This claim has no merit.

¶78. Jordan argues that a fter four reversals of his death sentence and the passage of so many

years since the crime was committed, he ha s been denied the ability to present a comprehensive

case in mitigation. Specifically, Jordan points out that his parents are now deceased and he was

denied the important emotional impact of their testimony in the sentencing trial. Jordan cites

cases dealing with the importance of presenting all relevant mitigat ing evidence and the right

to compel the attendance of favorable witnesses. T aylor v. Illinois

, 484 U.S. 400, 408, 108 S.

Ct. 646, 98 L. Ed. 2d 798 (1988); Lockett v. Ohio , 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d

973 (1978); Jurek v. T

exas , 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); C hambers

v. Mississippi

, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); D avis v. State

, 512

So.2d 1291, 1293 (Miss. 1987); Leatherwood v. State , 435 So.2d 645, 650 (Miss. 1983).

¶79. The State argues that despite the passage of so much time and the death of Jordan’s

parents, trial counsel has been able to present all available mitigating evidence. Transcripts of

prior testimony are available and have been read in the subseq uent proceedings where live

testimony is not available.

¶80. Jordan has had the benefit of all of the mitigating e vidence that was available the first

time he was convicted and sentenced to death. Although, the form of some of the evidence is

not the same as it was in the original pres entation, it is still available and has been utilized to

the best extent possible by defense counsel. Likewise, Jordan was convicted and sentenced

to death in his very first trial in 1976 when, ostensibly, all of his mitigation witnesses were alive32

and well. Therefore, we find that Jordan fails to demonstrate any actual prejudice from the

unavailability of his parents’ live testimony. This claim has no merit.

¶81. Next, Jordan asserts that a statement g iven to Officer Albritton should have been

excluded because it was given after Jordan’s arraignment proceedings in which he asked that an

attorney be appointed to represent him. Jordan cites M ichigan v. Jackson

, 475 U.S. 62 5, 106

S.Ct. 1404, 89 L. Ed. 2d 631 (1986), whi ch held that if police initiate interrogation after

defendant’s assertion, at arraignment or similar proceed i ngs, of his right to counsel, any waiver

of defendant’s right to counsel for that police-initiated interrogation is invalid.

¶82. Jordan h

as challenged the admissibility of this same statement from the very beginning

of this long series of appeals. Both this Court and the federal courts have found th is claim to

be without merit. In this Court’s most recent opinion, in 2001, we expressly considered the

Michigan v. Jackson decision and decided that the issue of whether the tape recorded

statement given to Officer Albritton, post-arraignment and without appointed counsel present,

was without merit.

Despi te his allegations that his case is not yet final, Jordan has received

four appellate

reviews of this issue, and we have now twice decided that the issue

is procedurally barred. Most impor tantly, the issue is harmless error at best. Our

initial decision on this issue showed the admission of that statement to O fficer

Allbritton was harmless s ince it was merely cumulative of the properly obtained

statement that Jordan gave to FBI Agent Watts. Jordan , 365 So.2d at 1203.

Jordan v. State , 786 So.2d at 1020.

¶83. Last

ly, Jordan simply says that in light of the cumulative effect of the errors, he is

entitled to post-conviction relief.33

¶84. Where there are no individ ual errors, there can be no cumulative error. Foster v. State

,

639 So.2d 1263, 1303 (Miss. 1994). This Court has previously r ecognized that "[w]here there

is no reversible error in any part,

.... there is no reversible error to the whole." D o ss v. State

,

709 So.2d 369, 401 (Miss. 1996) (quoting McFee v. State

, 51 1 So.2d 130, 136 (Miss. 1987).

This Court has further noted, "A criminal defendant is not entitled to a perfect trial, only a fair

trial." M cGilberry v. State

, 74 1 So.2d 894, 924 (Miss. 1999), citing S and v. State

, 467 So.2d

907, 911 (Miss. 1985). The record indicates that Jordan received a fair trial. This issue is

without merit.

CONCLUSION

¶85. We deny Jordan’s applica tion for leave to file a petition for post-conviction relief in the

trial court.

¶86. LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

S MITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND

RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.