IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-01655-SCT RICHARD CHAPMAN

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 10/19/2016 TRIAL JUDGE: HON. JEFF W EILL, SR. TRIAL COURT ATTORNEYS: CHRISTOPHER SCOTT ROUTH JAMIE KELLY McBRIDE COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: REVERSED AND RENDERED - 08/09/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BEAM, JUSTICE, FOR THE COURT: ¶1. This appeal arises f rom the Hinds County C i r c u i t C o u r t ’ s o r d e r granting in part Richard Chapm a n’s m otion f or post-conviction r elief (PCR), f ollowing this Court’s m andate in Chapm an v. State , 167 So. 3d 1170 (Miss. 2015) ( C hapm an I V

). There, in a f

ive-to-f our decision, a m ajority o f t h i s Court f ound that no direct appeal was taken f rom Chapm an’s
1982 c onviction f

or rape a nd lif

e sentence, and ordered t he trial c o urt to conduct an evidentiary hearing to determ ine if the record and transcript f rom t he jury trial s till existed,and if not, whether s om ething equivalent could be reconstructed. Id

. at 1175. Af ter parties reconstructed m

uch o f the record on rem and, th e t r i a l court granted Chapm an leave to f ile an out-of -tim e appeal f

rom his 1982 rape conviction and lif e sentence. 1 ¶2. Chapm an appeals f rom that ruling, claim ing the record is less than adequate to allow

an acceptable app e a l t o b e prepared. Chapm an m aintains his trial counsel was constitutionally def

i cient f or f a iling to f ile an appeal, o r even a notice of appeal, even though Chapm an claim s he p aid counsel to do so. Chapm an also claim s a lif e sentence i m

posed on

a sixteen-y e ar-old f

o r a crim e that was not a hom icide constitutes crue l a n d u n usual punishm ent. Chapm an subm its his 1982 rape conviction should b e reversed and t his cause dism issed or, in the alternative, rem a nded f or a new trial. ¶3. The S tate contends Chapm an’s out-of -tim e a ppeal is devoi d o f r e v e r sible error and
argues Chapm an’s rape conviction and lif e s entence im

posed by t he jury should be af f irm ed. ¶4. Having reviewed the reconstructed record, we f ind that Chapm an is n ot entitled to an out-of -tim e appeal. A s will be explained, we c onf irm what Justice Colem an surm ised in his dissent in Chapm an I V was likely the case: (1) Chapm an’s trial record was not destroy ed,

as Chapm an has claim e d throughout his m ultiple PCR petitions; and (2) Chapm an had three
y ears f r om April 17, 1984, when Mississippi’s Unif orm Post-Conviction C ollateral Relief
Act (UPCCRA) went into e f f ect, to petition f

or an out-of

- tim e appeal but f

ailed to do so. See Chapm a n IV

, 167 S o. 3d at 1177-80 (Colem an, J., dissenting); see also f orm er Mississippi Code Section 99-39-5(1)(h), providing grounds f or relief t o “[ a]ny prisoner in c ustody under

1 A cco rd in g t o C h ap m an ’ s ap p ellan t b rief , C h ap m an cu rren tly is o n p aro l e f ro m h is lif e sen ten ce. 2sentence of a court of record of the state of Mississippi who claim s: . . . he is entitled to an out of tim e appeal.” 2 ¶5. T h e r e c o n s tructed record plainly shows that Chapm an was aware as late as Augu s t 1983 that a direct appeal had not been f iled af ter his 1982 rape conviction. And even though the UPCCRA had not y et been enacted, Chapm an had a judicial rem edy available to him , as
set f o rth by this Court in 1977, upon which Chapm an also f ailed t o act. See J

ones v. State , 346 S o. 2d 376 (Miss. 1977) ( Jones I ) and J ones v. State , 355 So. 2d 89 ( Miss. 1978) ( Jones
II ).
PROCEDURAL BACKGROUND ¶6. Chapm an was i ndicted by a Hinds County grand j ury on August 10, 1981, f or rape and

arm ed r obbery

. T he rape charge was tried b e f o r e a Hinds County j ury in January 1982. Chapm an was represented at trial by Herm e l Johnson. Form er Mississippi Suprem e Court Justice Reu b e n A n d e rson, then serving as a Hinds County circuit judge, presided over Chapm an’s trial. No direct appeal was taken af t erward. ¶7. I n Septem

ber 1982, Chapm an pleaded guilty to robbery (without a f irearm ) , a f

t e r having been charged w ith robbing the rape victim with a f irearm

. Chapm an was sentenced

to ten y ears in the custody of Mississippi D epartm ent of Corrections ( MDOC), with six y ears suspended, f

our y ears to serve, and f

ive y ears on supervised probation. ¶8. The r econstructed record shows that, in August 1983, f orm er Hinds County

Ci r cuit Judge W illiam

Colem an sent Chapm an the f ollowing letter:

2 T h is p ro v isio n is n o w d esig n ated M ississip p i C o d e S ectio n 9 9 -3 9 -5 (1 )(i). 3Dear Mr. Chapm a n:

The index card i n the Court Adm inistrator’s of f ice shows that y ou were convicted o f rape a nd received a lif e s entence on January 2 7, 1982 and t hat y ou entered a plea of guilty on Septem ber 2 2, 1982 to ro b b e r y without a f irearm and received a t e n y ear sentence, six y ears suspended on f ive y ear supervised probation and f our y ears to serve. Af ter y our lett e r w as received by Judge [ Reuben] Anderson, the Court Adm inistrator che c k e d with Mr. Johnson, y our attorney , and he a d vised t hat it was part of the plea bargainin g a g reem ent on t he robbery charge that y ou would not a

ppeal the rape charge. I h ave no way of knowing i f this i s correct or not. This Court has lost jurisdiction and, if it is y our i ntention to appeal, y ou m ust f ile the proper papers with the Mississippi Suprem e Court. Sincerely y ours, W illiam F. Colem an Circuit Judge
¶9. In April 1 985, Judge Colem an entered an order allowing the f ollowing evidence u sed in Chapm an’s 1982 rape trial to be turned over or des t r o y ed: s aliva sam ple, blood sam

ple,
rape pack, two pairs of underwear, one blue shirt, one pair of grey p ants, and one “checked sheet.” ¶10. In 2005, the Innocence Project f iled a m otion i n H i n d s C o u n ty C ircuit Court on Chapm an’s behalf f

or “Preservation and Production of Evidence.” Fo r me r Hinds County Circuit Judge Swan Yerger ordered the University of Mississippi M edical Center (UMMC), the Mississippi S ta t e Crim e Laboratory , the Jackson Police Departm ent (JPD), the Hinds County Sherif

f ’s Of f ice, the Hinds County District Attorney ’s Of f ice, the Mississippi Crim e Laboratory , and the Hinds County Circuit Clerk’s Of f i ce to search f

or biological evidence

4relating to Chapm an’s 1982 rape prosecution

. The trial court also d irected each entity to

provide the status and disposition of any biological evidence and to preserve such evidence until f urther notice. ¶11. T h e H i nds C ounty District Attorney ’ s Of f ice responded to t he circuit c o u r t ’ s o r d e r t h a t all evidence f

r om Chapm an’s rape case had been destroy e d p ursuant to an April 1 985 court order. Chapm an v. State , 47 So. 3d 203, 205 (Miss. Ct. App. 2010) ( Chapm an I ). ¶12. In 2006, Chapm an f iled a p ro se PCR m ot i o n a l l e g i n g : (1) innocence regarding the
rape conviction; (2) the trial court’s f ailure to abide by Unif

orm R ule of C ircuit a nd County
Court Practice 8.04 in accepting C hapm an’s guilty plea f or r obbery ; (3) the S t a t e ’ s f ailure

to preserve exculpa t o r y evidence and the trial transcript; and (4) inef f ective assistance of counsel. Id . Chapm an f

i led an am ended m o tion, alleging also: (1) his indictm ents in both the rape and robbery

cases were d ef

ective; (2) the jury in his rape trial was n ot drawn f rom

a f air cross-section of the com m unity ; and (3) he i s serving a n illegal sentence. Id

. at 205-06. The trial court dism issed Chapm an’s PCR m otion, f inding the m o tion was tim e-barred under the three-y ear s tatute of lim itation provided by Mississippi Code Section 99-39-5(2), and that Chapm an was not entitled to relief

. Id . at 206. ¶13. Chapm an I a f

f irm ed the t

r i a l c o u r t ’ s d i sm issal, f

inding Chapm a n had f

a i led t o com

ply with M ississippi C ode Section 99-39-9(1)(d), which requires a sworn statem e nt of specif ic
f acts within the prisoner’s personal knowledge, a n d a sworn s t atem ent of specif ic f acts not within the prisoner’s knowledge stating how or b y whom said f a c t s w i l l be proven. Id

. Chapm an also f

ailed to c om

ply with Mississippi Code Section 99-39-9(1)(e), which requires

5witness af

f idavits f rom all who will testif

y and copies of

docum ents or records that will be of f ered. C hapm an I

noted, however, this requirem ent m ay be excused upon a showing of good cause. Id

. ¶14. Addressing the tr i a l c o u r t ’s f inding that C h apm a n’s PCR action was tim e-barred, Chapm a n I pointed out that the Legislature recently had enacted Mississippi Code Section 99-39-5(2)(a)(ii), which lif ts the tim e bar if biological evide n c e exists t hat would dem onstrate, through additional DNA testing, a reasonable probability the p etitioner would

not have been convicted or would have received a l esser sentence if f a v o rable results had been obtained through such DNA testing at the tim e o f pros e c u t i on. Id

. at 208-09 ( citing
M iss. Code Ann. § 99-39-5 ( 2 )(a)(ii) (Rev. 2015)). B u t Chapm an f a iled to show t h a t previously tested or untested biological evidence e xists, and Chapm an f ailed to m eet his burden of proving newly

discovered evidence. Id . at 209. ¶15. L a s t l y , Chapm an I explained that the Legislature recently had enacted a procedure
f or preserv i n g a n d d e s troy ing DNA evidence, and requiring the State to retain enough biological evid e n c e t o develop a DNA prof ile, and detailing under what circum stances biological evidence m ay be destroy ed. Id

. at 209 (citing M iss. C ode Ann. § 99-49-1(3)(d), (f ) -(h) (Rev. 2015)). The law, however, was not i n ef f ect when t h e e v i d e n c e used in Chapm an’s prosecution was ordered destroy ed by the circuit court in 1985. Id

. ¶16. F u rther, C

hapm an I f

ound that Chapm an f

ailed to m ake an adequ a t e s h o w i n g o r assertion that the State had acted in bad f aith in destroy ing the evidence. Id

. (citing Cox v. State , 849 So. 2d 1257, 1266 (Miss. 2003) (setting f orth a three-part test t o p rove a spoliation

6claim , includ i n g c onsideration whether the governm ent a c ted in bad f a i th in f ailing to preserve potentially

exculpatory

evidence)). Id

. 3 ¶17. I n 2 0 1 1 , C h a pm an f i led another PCR m otion in the t rial court asserting the sa me claim s presented i n his 2006 PCR m otion. The trial court f ound the m otion tim e-barred and dism issed it. The Court of Appeals af f irm ed the trial court’s dism i ssal, f in d i n g it “tim e barred and s uccessive-writ b a rred

. ” C h a p m an v. S

tate , 135 So. 3d 184 (Miss. Ct. App. 2013), reh’g denied (Apr. 1, 2014), cert. dismissed , 145 So. 3d 674 (Miss. 2014) ( Chapm an II ). ¶18. In 2012, while C

hapm a n II was pending in the Court o f Appeals, Chapm an f ile d a
t h i r d PCR m otion in the trial court, asserting: (1) destruction o f evidence v iolated hi s d u e-process rights, (2) trial court erred in f inding his m otion was tim e-barred , ( 3 ) t h e indictm ent was def

ective, ( 4) the j ury was n ot properly sworn, (5) the State f ailed to com

ply with discovery , ( 6 ) h e had inef f ective assistance of counsel, and (7) the S tate’s closing
argum ent was im

prope r . T h e t r i a l court denied relief , f inding the P CR m otion was tim ebarred. The Court of

Appeals af

f irm ed, holding: It is clear that Chapm an’s m otion was tim e-barred. Under the Unif ormPostConviction Collateral Relie f Act (UPCCRA), where “no appeal is taken,” a petitioner m

ust m ove f

or relief “within three ( 3) y e ars af ter the tim e f

or t aking an appeal f

rom the judgm ent of conviction o r s entence has e x pired, or i n c ase of a guilty plea, within three (3) y ears af ter entry o f t he j u d g me n t of conviction.” Miss. Code Ann. § 99-39-5(2) ( Supp. 2013 ). Chapm an was convicted i n 1982, which was bef ore the UPCCRA was enacted o n April 17, 1984. Odom v. State , 483 So. 2d 343, 344 (Miss. 1986). “Individuals

3 C hapm an thereaf

ter p etitioned this Court f or writ o f c e rtiorari, which this Court dism issed due to Chapm an’s f ailure to f ile a m otion f

or rehearing i n t he C ourt of Appeals. Chapm a n v. State , 2007-CT-00725-SCT (Novem ber 4, 2010). 7convicted prior to April 17, 1984, ha[ d] three ( 3) y ears f rom A p r i l 17, 1984, to f ile their [ m otion] f

or pos t [-]conviction relief .” Id

. Theref ore, Chapm an had until April 17, 1987, to f

ile his PCR m otion. C hapm an did n ot f ile his m otion until well a f

ter the statute of lim itations h ad run. Thus, Chapm an’s m otion is tim e-barred, and we f

ind no exception to this bar applies. See Miss. Code Ann. § 99-39-5(2)(a)-(b). Chapm a n v. State , 167 So. 3d 1205, 1206-07 (Miss. Ct. App. 2014) ( C h apm an III

). ¶19. Chapm an thereaf

ter petitioned this Court f or a writ of certiorari, which was granted.
In a f ive-f o ur d ecision, this Court r eversed Chapm an III

. Chapm an IV

, 167 So. 3d at 1175. ¶20. T h e m ajority f

ound that Chapm an had allege d t w o p o t e n t i a l v i o l a t i o n s o f h i s constitutional rights: (1) h is trial record and transcript were im properly destroy ed, and (2) his trial counsel was inef

f ective f or not f i ling a direct appeal, which caused t h e recordings of Chapm an’s trial not to be transcribed. Id . at 1172. ¶21. The m ajority f

ound that the f

irst potential c o n s t i t utional violation im p licated dueprocess rights b ecause i f Chapm an’s trial record was destroy ed, this violated a statutory duty under Mississippi Code Section 9-7-128 to preserve the record. Id

. 4 The m ajority f ound that the only things c ontained in the r ecord bef o re it were C hapm an’s order of conviction and what Chapm an claim ed was his indictm ent f o r rape. Id

. ¶22. Speaking to the second potential constitutional violation, the m a jority said Chapm an had claim ed his attorney a greed at tr ial to f ile an appeal but f

ailed t o do s o even though Chapm an allegedly had paid his attorney f or that service. Id

. And according to Chapm an,

4 T h e m aj o rity n o ted th a t at t h e t i me o f C h ap m an ’s trial, S ectio n 9 -7

- 1 2 8 req u ired crim in al reco rd s b e k ep t f o r f if ty y ears. T h e L eg islatu re am en d e d th e s t a t u t e i n 1 9 8 7 to req u ire r e t e n t i o n o f crim in al reco rd s f o r tw e n ty y ears. C

h a p m a n IV , 1 6 7 S o . 3 d at 1 1 7 2 , n .1

. S ee M iss. C o d e A n n . § 9 -7 -1 2 8 (R ev . 2 0 1 4 ). 8he ( Chapm an) did not learn of his attorney ’s f ailure until roughly t wo y ears later wh e n Chapm an was inf

orm ed by the court clerk that no direct appeal had ever been f iled. Id

. ¶23. The m ajority s aid that Chapm an also had alleged his attorney was inef f ective f or not

c a l l ing a n alibi witness. Id

. Chapm an also had claim e d his indictm ent f ailed to cite the relevant statute under w hich h e was cha r g e d; the State im properly destroy ed all phy sical evidence af

t er his conviction; his s e n t e n c e was illegal; t he jury ’ s verdict was a gainst the weight and suf

f i ci e n c y o f t h e evidence; and a t trial, the victim pointed to Chapm an’s trial counsel f rom the witness stand when identif y ing who had raped her. Id . at 1172-73. ¶24. The m ajority h eld that Chapm an was entitled to an evidentiary hearing s o t h e t r i a l

court c ould determ i ne “what, if any thing, of the trial record e xists, and to provide Chapm an

a n d t h e S tate an opportunity t o l ocate or reconstruct the trial record a n d transcript, or t o produce an equivalent picture.” Id . at 1174. ¶25. On rem and, the trial court issued an order granting in part Chapm an’s PCR m otion, related here in pertinent part, as f ollows: Shortly af ter r em a nd, the [ c]ourt and the parties began t h e l o n g and tedious task of researching and investigating to determ i ne whether or not the trial r ecord or transcript existed. In light of the f act this m atter proceeded to trial

. . . over 34 y ears a go, determ i ning t he exis t e nce of the trial r ecord and t r a n s c r i pt w as exceptionally c hallenging as all of the i ndividuals originally involved with the c ase no longer work f or Hinds County

. A dditionally , reviewing the court reporter records was painstakingly dif f icult, as the records are m aintained in a high l y u n o r g a nized f ashion in a room within the Hinds County Courthouse. The reviewing of these records was f u rther com

plicated by the f act that neither the [ c]ourt nor the parties were aware of the true i d e n t i t y o f the court reporter in the above-sty led cause of action until M ay , 2016.

9Af t er nearly one (1) y ear of investigation into this m a tter by both the Court and the parties, Assistant District Attorney Jam i e McBride located the o r i g inal reel to reel tapes which contain t he audio r ecordings of t h e Def endant’s 1982 trial. D ue to the dated nature of the tapes, the [ c]ourt was f orced to have the audio f iles transf

e rred to a digital f

o rm at a n d t h e s ound quality enhanced. The audio recordings were subsequen t l y transcribed b y a f reelance court reporter a s the ori g inal court reporter, Nelda W oods, was unavailable to com

p lete this project.
W ithin the Mississippi Suprem e Court’s July 2, 2015 Order in t his case, t h e t r ial court was instructed to “consider the m erits of Chapm an’s c la i ms raised in the current m o tion f or PCR based on t h a t r e c o r d ” in the event t hat such was located. [ Citation om itted]. W ithin the instant PCR m otion and the am ended m otion, Chapm an m akes m u ltiple c laim s which w ould have been m ost appropriately r aised o n direct appeal, s uch a s a Batson violation, 5 f aulty indictm ent and inef

f ective assistance of counsel, am ong others. Chapm a n also m akes an im

plicit request f

or an out o f t im e appeal, citing w ithin his am ended m otion that h is trial counsel stated in open court at the sentencing hearing t hat he intended to appeal this conviction, but f a i led to do so.

. . . Chapm an claim s that his trial counsel stated on the record f ollowing the sentencing hearing th a t he intended to appeal t he conviction, however the sentencing he a ring is not contained in the record. Additionally , the only d o cum ent the undersigned could located in the court f i le that conta i n s a n y ref erence to an appeal is an unsigned copy of a l e t t e r t o C hapm an f rom the Honorable W illiam F

. C o l e m an, which states that “the Court adm inistrator checked with Mr. J o hnson, y our a ttorney , and he advised that it was part of the plea bargaining a greem ent on the robbery charge that y ou would not appeal the rape charge. I have no way of knowing i f this is correct o r not.” See Exhibit B , attached. Theref

o r e i n the case sub judice, the record does not contain adequate evidence to contradict Chapm an’s claim s, however, the undersigned f inds that an evidentiary hearing would be useless as Chapm an’s trial counsel is deceased. Accordingly , the undersigned f inds it appropriate to grant Chapm an’s request f

o r a n o u t of tim e appeal, m ade within his original and supplem ental [ PCR m otio n ] so that h e m ay f ile a direct appeal of his underly ing conviction and sentence in H i n d s C o . cause num b er T-94. By granting Chapm an l eave to f ile an out of tim e appe a l , t h e undersigned

5 B a tso n v. K

en t u ck y , 4 7 6 U .S

. 7 9 , 8 2 , 1 0 6 S

. C t

. 1 7 1 2 , 1 7 1 5 , 9 0 L

. E d

. 2 d 6 9 (1 9 8 6 ). 1 0dism i sses the rem aining claim s m ade withi n t he instant m otions as m oot,

however, nothing about the entry of this order should preclude Chapm a n f rom m aking these claim s within the appeal of his crim inal convictions. ¶26. At the o utset, we take this m om ent to restate the rule in Mississippi with r egard to outof -tim e appeals, as reiterated in Diggs v. State , 784 So. 2d 955 (Miss. 2001):
T o p r o v e [ the] right to an out-of -tim e appeal, t he m ovant m ust show by a preponderance of the evidence t hat h e asked his attorney to appeal within the tim e allowed f

o r giving notice of an a

ppeal. Moreover, the m ovant m u st show that the attorney f

ailed to perf

ect the a ppeal and that s u ch failure was through no fault of the movant

. Id

. a t 956 (quoting Dickey v. S tate , 662 So. 2d 1106, 1108 (Miss. 1995) (em phasis added)). ¶27. Here, i n f

inding that “the record d oes not contain adequate e v idence to c o n t r a d ict Chapm an’s claim s,” the trial court f ound that Chapm an suf

f iciently had established he was denied his right to an a

ppeal b y counsel’s a ctions or inactions t hrough no f ault of Chapm an’s. Given the circum stances in thi s c a se, such as the f act that Chapm an’s t rial attorney is deceased, the trial court f o und an evidentiary hearing would be useless to determ ine otherwise. The trial court proceeded no f urther in its f

indings. ¶28. Having thoroughly reviewed the reconstructed record, we a gree there i s nothing that

contravenes the trial court’s f inding that Chapm a n’s attorney f ailed t o perf

e ct a n appeal

1 1through n o f aul t o f C hapm an’s. 6 But, despite this f inding by the trial court, we f ind that Chapm an is not entitled to an out-of -tim e appeal. ¶29. As will be explained, the reconstructed record conclusively establishes t hat Chapm an

was aware, as late as August 1983, that no direct appeal or n otice o f appeal pertaining to his
1982 rape conviction h ad been f i led. Yet, Chapm an f

ailed to act p u r s u a n t t o e ither the judicial rem edy created b y this Court i n 1977 f or such s i tua t i o n s , or the UPCCRA, which

went into e f

f ect in April 1984 a nd g ranted specif ic g rounds f

or r elief to “[ a]ny prisoner” such as Chapm an claim ing “he is entitled to an out of tim e appeal.” Judge Colem an’s 1983 Letter to Chapm an ¶30. Judge Colem an’s 1 983 l etter to Chapm an conf irm s wh a t C h a

p m a n h i m s e l f adm its was

t h e case: that Chapm an learned of trial counsel’s alleged f ailure t o f ile an appeal “roug h l y
two y ears” af

ter his rape conviction. W hat Judge Colem a n told Chapm a n in the letter about needing to “f

i le the proper papers with t he Mississippi Suprem e Court” because t he circuit court had “lost jurisdiction[ ,]” needs clarif ication. ¶31. The letter was written prior to the UPCCRA, which was enacted on April 17, 1984. The act r epealed the statutory w rit of error coram nobis and abolished the com m on-law writs relating to post-conviction collateral relief , error coram n obis , error coram vobis , and post6 Com pare w ith Diggs v. State , 784 So. 2d at 9 56 In Diggs , the trial c o u r t h e l d a n evidentiary hearing to determ ine whether Diggs’s attorney had f ailed to f ile an appeal af

ter being a sked to d o s o. Id. at 956. Af ter hearing conf

licting testim ony f

rom Diggs and his f orm er a ttorney , the trial court denied Diggs’s petition. Id

. at 9 57. T his Court af f irm ed the trial court judgm ent, f

inding that the burden o f proof l ay with Diggs, and t hough the record pertaining to the underly ing conviction was lim ited, this Court could not s a y def initively that a m istake had been m ade. I d

. 1 2conviction habeas c orpus . S e e M i ss. Code Ann. § § 99-39-3(1), 99-39-5(2) (Rev. 2015). ¶32. Though the a c t a

p p l i e d p r o s p e c t i v ely f

rom its date of enactm ent, individuals convicted prior to April 17, 1984, were given three y ears f rom April 17, 1984, to f

i le a PCR petition.
Odom v. State , 483 So. 2d at 344-45. ¶33. Thus, all inm ates–such as Chapm an–had u ntil April 1 7, 1987, to f ile a PCR petition

to request an out-of

-tim e appeal un d e r fo r

m e r M i s s i s s i p p i C o d e Section 99-39-5(1)(h)–again, providing grounds f

or relief to “[ a]ny prisoner in custody under sentence of a court of record of the state of

Mississippi who claim : . . . he is entitled to an out of tim e appeal.” 7 ¶34. But when Judge Colem an’s 1983 letter w as written, t he rem edy announced in Jones
I a p plied. Prior to J

ones I , “out-of -tim e appeals were unknown in our practice.” Colem an v. State , 804 So. 2d 1032 (Miss. 2002). ¶35. Jones I recognized that “[ d]ue process requires adequate post conviction rem edies.”
Jones I , 3 46 S o. 2d at 377. Jones I also recognized that i n m ost cases, the trial court would be without jurisdiction to grant an out-o f

- tim e appeal in instances where a petitioner m ay have b een denied the right to appeal his or h er crim inal conviction. Id

. Thus, Jones I held that the proper reme d y w o uld be to a llow the com p lainant to petition t he Mississippi Suprem e Court f

or a n appeal so “this Court m a y decide f o r i t s e l f what relief m ay be due.”
Id

. ¶36. T h e n e x t y ear, this Court expounded u pon Jones I i n J

ones v. State , 355 So. 2d 8 9 (Miss. 1978) ( Jones II

)

. Jones II held that a petition f or an out-of

- t i me a p p eal should be

7 A g ain , th is p r o v isio n n o w is d esig n ated as M ississip p i C o d e S ectio n 9 9 -3 9 -5 (1 )(i). 1 3f

iled with this Court, with proper af f idavits. Id

. at 90. T he case then w ould be rem anded f or

an evidentiary hearing, allowing the trial court to grant an out-of -tim e appeal if t he evidence dem onstrated that, through n o f ault o f the petitioner, the r ight to perf ect an appeal with the

t i me prescribed by law was denied “by the acts [ or om issions] of his attorney o r the trial
court.” Id . at 90. ¶37. Af ter the UPCCRA w as enacted, the judicial rem edy provided in Jones I and II was no longer necessary

. See Colem an , 804 So. 2d at 1041 (Carlson, J., concurring). ¶38. Here, the reconstructed record conclusively shows that C h a p m an was aware as late

as August 1983 that his attorney had not f ile d a n a p peal. A t that point, C hapm an had a judicial rem edy he could have pursued. T h e n , eight m onths later in April 1984, Chapm an had a statutory rem edy that becam e a n d r e m ained available to him until April 1987. But Chapm an f

ailed to act on either rem edy

. ¶39. The m ajority in Chapm an IV did n ot address this f ailure due to the scant record then bef ore the Court. T he m ajority also was concerned abou t Chapm an’s claim s that the trial record and trial transcript were im properly destroy ed by the S tate, along with bi o l o g i c al evidence used in Chapm a n’s trial. Id

. at 1172-74. But as Justice Colem a n i n his dissent in Chapm a n IV correctly surm ised, a nd as the reconstructed r ecord now conf irm s, neither was the case. Chapm an IV

, 167 So. 3d at 1177-80 (Colem an, J., dissenting). The transcript f or Chapm an’s trial p roceedings was not d estroy ed; rather, one was not t ranscribed because an appeal h a d n o t been f

iled. Id

. at 1178. Further, it was com m on practice i n Mississippi jurisprudence at the tim e to allow phy sical evidence to be destroy ed. Id

.

1 4¶40. For these reasons, we f ind that Chapm a n is not entitled t o an o ut-of -tim e a ppeal. And

we reverse the trial court’s ruling g ranting Chapm an’s request to f ile an out-of

-tim e appeal.
PROCEDURAL BAR NOTWITHSTANDING ¶41. Even were we to lif t the procedural bars and perm it Chapm an an out-of -tim e appeal,

we f i nd no m erit in Chapm an’s present claim in this m atter that the reconstructed record is inadequate to allow an acceptable appeal to be prepared. T he reconstructed record is m ore than adequate to address the claim s Chapm an a s serts i n h is PCR petition(s) in Chapm a n v. State , 167 So. 3d 1205, 1206-07 (Miss. Ct. App. 2 0 1 4 ) ( C h a p m an I II ) : (1) destruction of evidence violated his due-process rights, (2) the indictm ent was def ective, (3) t he jury was

n o t p roperly sworn, (4) the State f ailed to com

ply with discovery , (5) his c oun s e l w a s inef f ective; and (6) the State’s closing argum ent was im proper. ¶42. As will b e d i s c u s s e d , t h e r e c o n s tructed record shows each of t hese claim s to be without m erit. And we begin our discussion with what the reconstructed record shows the
f acts of this case to be, in the light m ost f avorable to the jury ’s 1982 guilty verdict.
State’s Case ¶43. On June 1, 1 9 81, at approxim ately 12:15 p.m ., the victim 8 was sitting in her car during her lunch b reak at her place of em ploy m ent–Oliver Van H orn’s warehouse, located on North Gallatin Street in J ackson, Mississippi. A y oung A f rican-Am e r ican m ale, whom the victim had never seen bef

o re (and later identif

ied as Chapm an), approached her vehicle and asked i f h e could get s om e cardboard boxes out of the back of the warehouse. T h e v i c t i m t o l d

8 W e o m i t th e v ictim ’s n am e, as th is C o u rt r ep eated ly d eclin es t o id en tif y v ictim s o f sex u al crim e s. 1 5Chapm an to g o around f r o n t a nd ask s om eone inside. Chapm an walked away f rom the vehicle toward the d irection of the warehouse. The victim watched him f or a m om ent then turned back around in her vehi c l e . A b o u t f i ve m inutes later, C hapm an returned to the victim ’s vehicle. The victim “didn’t hear him

walk up. He just snuck up on m e . ” ¶44. Chapm an s aid: “Hey , I want y o ur car.” The v ictim turned around and looked out of her car w indow, which was rolled down, and C hapm an had a gun pointed at her head. The victim described the gun as “a sm all handgun, revolver, black in color.” ¶45. Chapm an f

orced his way i nto the victim ’ s v ehicle. The v i c t i m t o l d t h e jury : “He didn’t wait f

or m e to m ove over. He sat on top of m e.” Chapm an t hen c ranked the vehicle and drove of

f toward the back o f the warehouse and o n to “a little d irt road and he went f or little way s . . . .” ¶46. Chapm an told the victim if she scream ed, he would kill her. She said Chapm an was driving “real, real slow, and he had the gun in his h a n d s i t t i n g on his l ap,” and she “kept asking him , ‘Please don’t kill m e.’ And he s aid, ‘Just shut up and don’t scream or don’t do
any thing f unny . ’” ¶47. Mom ents l ater, Chapm an stopped the vehicle. He asked the victim how m uch m oney she had. The victim told C hapm an she h ad $219 i n her purse. Chapm an took the m oney and asked if she had any m ore. T he victim said n o. C hapm an then looked t hrough the victim ’s
purse. ¶48. Chapm an asked the victim if she had any kids. She said she h ad two sm all children. Chapm an told her, “You don’t want any thing to ha p p e n t o y our kids.” The victim said,

1 6“No.” A n d C h a p ma n said, “W e ll, I’m going t o f *** y ou up.” Chapm a n then m ade the victim “get out of the car and go into the bushes.” ¶49. The victim told the j ury : “ W e cam e to a little clear spot and h e m ade m e lay down, and he said, ‘Pull down y our panty hose and underwear.’” C hapm an told h er, “ D on’t s cream or do a n y thing because I’ll kill y ou.” The victim said there was a “big ant bed ” a t t h e spot where she lay down, “ and they were crawling all over m e a nd biting m e and h e wouldn’t let

m e get u p. And that’s when he started raping m e.” Chapm an then to l d h e r “ to get up because they

started biting him .” ¶50. Chapm an m oved the victim to “another little clearing place,” about “eight f eet” away and told her, “ Don’t d o any thing because I’ll blow y our h ead of f

. ” The victim t old the jury : “And he raped m e again.” ¶51. Chapm an told the victim : “You’re supposed t o e n joy it. Look like y ou ’ r e e n j o y i ng it.” At that p o i n t , a w h i t e pickup truck drove by , and C hapm an said, “Don’t say any thing because I’ll kill y ou.” ¶52. The a r e a w h e r e t h e r a p e occurred was behind the Jackson Paper Com p any near railroad tracks. The victim believed the white truck belonged to the railroad. ¶53. The victim said when the white t ruck d rove by , C hapm an “just l aid there and waited
f or the truck t o go by and looking at m e, just waiting f or m e to do som ethi n g . ” S h e s a id, “while I was there, I noticed that he had a b ig scar on his right shoulder[ ,]

. . . a n d I k e p t looking at it . . . .”

1 7¶54. Chapm an “f inally got up and he told m e to put m y clothes on and g o back to the car.” There, Chapm an told her, “Now, if y ou call the police o r tell a n y b o d y , I’m going to com e back and blow y our head o f f .” C hapm an took the victim ’s m oney and w alked away toward the Jackson Paper Com

pany . ¶55. W h en asked by the State at trial whether she consented to having sexual intercourse with Chapm an, the victim said, “No, I didn’t. He f o rced m e to[ ;] he had a gun and he kept threatening that he would kill m e if I didn’t do what he wanted m e to.” She t old the jury specif ically that Chapm a n’s “penis penetrat[ ed her] genital areas.” A nd the c r im e occurred “here in the City

of Jackson.” ¶56. Af ter Chapm a n walked away f rom the vehicle, the victim drove back to Van Horn’s and told a co-worker what had happened. The c o-worker inf o rm e d the m anager, who called the police. Police of

f icers f rom the Jackson Police Departm ent (JPD) arrived within f ive or
ten m inutes, and the victim told them

what had happened. ¶57. She described the individual as being in his late teens or early twenties, “6’1” [ tall], weighed about 1 6 5 pounds, and he had a short af ro and a beige v-neck sweater with no sleeves

. . . and a gold chain around his neck.” He a lso had “peach f uzz” on his f

ace. He was wearing blue jeans a nd tennis shoes. She also told the police t he individual had a scar on his right shoulder, which she described as about three inches long. ¶58. W h en asked by the State at trial whether she c o uld i dentif y the person who raped her if she saw that person a gain, the victim said, “Yes, I would.” She then pointed to Chapm an,

1 8s a y ing the “def endant sitting right there.” The State a sked, “Is that the person without the suit on that y ou’re ref

erring to? ” The victim

stated: “Right. Short sleeves.” 9 ¶59. T h e victim told the jury that af ter talking w i t h t h e p o l i c e a t V a n H o r n ’ s f o r approxim a tely “thirty to f ourty -f i ve m inutes[ ,]” the police drove her to UMMC. There, she

was exam ined by a d o ctor, and a r ape kit w as perf orm ed. She said they also gave her som e

m edicine to help prevent “venereal disease.” The police called the victim ’s husband while she was at the hospital. ¶60. The next evening, on June 2, the police called the victim at hom e around 9:00 p.m ., told her they had picked up a s uspect, and asked her to co me t o t h e p o l ice station in the

m orning f or an identif

ication lineup. The v ictim and her husband went t o t he station the next

m orning. ¶61. On June 3, whil e t h e v i c t i m s t o o d i n a viewing room , the police brought f ive individuals o ut into an a djacent r oom , separated b y a one-way m irror. The victim identif ied Chapm an out o f the lineup. She did so without seeing Chapm an’s scar, a s all of the lineup participants “had on short s leeves.” She said they all appeared to be the sam e a ge. They were dif f e rent sizes, but all wore the sam e ty pe of j ail clothes.

9 In o n e o f C h ap m an ’ s P C R p etitio n s , C h ap m an c l aim ed th e v ictim p o in ted to C h ap m an ’s trial c o u n sel an d id en tif ied co u n s el as th e rap i st. T h e m aj o rity in C h a p m a n IV n o ted C h ap m a n ’s assertio n . S ee C h a p m a n IV , 1 6 7 S o . 3 d at 1 1 7 3 (“C h ap m an claim s . . . th e v ictim id en tif

ied h is atto rn ey as th e p e rp etrato r.”). A s th e rec o n stru cted reco rd illu strates, C h a

p m an ’s assertio n is f

alse. 1 9¶62. JPD o f f icers had a rrested Chapm an on June 2 at around 7:00 p.m . JPD of f icers were told at “roll call” about the rape a nd arm ed robbery that h ad o ccurred the day bef ore, and they were given the suspect’s description as provided by the victim

. ¶63. Of f icer P.C. Burnham testif

ied that he and O f

f i c e r J o h n B o wm an were patrolling downtown Jackson a round 7:00 p.m . on June 2, w hen they observed a vehicle traveling west on Am ite Street, driving erratically . They pulled the vehicle over and saw it was occupied by Chapm an, Of

f i cer Burnham

told the jury , while p ointing at Chapm an in the courtroom

. Both of f icers knew Chapm an f

r om the area. ¶64. They asked C hapm an f or his driver’s license, and Chapm an s aid he did not have one. Of f icer Burnham said the description they had received about the rape suspect, prior to their

encounter with Chapm an, was that of a “ b l a c k m a l e , 6 f eet, 6 f eet 1,

. . . 160 pounds.” Of f icer Burnham said at the tim e of crim e, the individual was said to be “ w e a ring blue jeans,

som e t y p e o f pullover-ty

p e cream or beige c olored s h irt w ith som e button in the f ront.”
W h en t hey stopped Chapm a n on Am ite Street, Chapm an “was w earing exactly t h e s a m e thing that had been dispatched over the radio . . . .” ¶65. The of

f icers were told the suspect had a b a d s c a r o n his right shoulder. Of f icer Burnham said Of

f icer B owm an asked Chapm an if he had any scars on h im

. C hapm an said

no. Of f icer B owm an asked i f h e could look, and Chapm an purportedly said he did not m ind. Of f icer Bowm an pulled Chapm an’s “right collar o ver.” And “[ t]here was a scar o n his right shoulder as described to us earlier by – looked like about an inch long, abou t may be an eighth-of -an-inch wide.”

2 0¶66. At that poi n t , O f f i c e r B owm an placed Chapm an under a rrest f or rape and arm ed robbery and advised C hapm an of his Miranda righ t s . 1 0 C h a pm an said h e understood his rights. ¶67. Chapm an w as placed in the back seat of the patrol vehicle. Chapm a n asked what was going on. The of

f icers told him about the rape and robbery that had occurred the day bef ore. Chapm an purportedly then said: “If I f  d that girl, she’s going to have sy p hilis because I got it.” ¶68. Of f icer Bowm an t estif

ied at trial that the area where they arrested Chapm a n on June
2 w as about three blocks f rom Van Horn’s location. He said Chapm a n’s m other a nd f ather lived on W est Church Street, in two separate houses. Of f icer Bowm an told the jury that W est Church Street is a couple of blocks f rom the Van Horn building. ¶69. Of f icer B owm an said he asked Chapm an if he had any scars. Chapm a n said he had

one on his f

a ce. Of f icer Bowm an asked Chapm an if he had a s car on his shoulder. Chapm an did not say any

thing. Of f icer Bowm an asked Chapm an if he could look. Chapm an still did

not say any

thing. At that point O f

f icer Bowm an pulled Chapm an’s s hirt back f rom his right shoulder and “observed a scar about three-inches long a n d about a quarter-inch wide

. . . .” ¶70. Of f icer Bowm an s aid, af

ter they placed Chapm an under arrest, Chapm an asked, “Can that lady m ake a positive ID on m e? ” T hen Chapm an said, “If I f ** **d that girl, she’ll have
sy philis f or I’ve got it.”

10 M ira n d a v. A rizo n a , 3 8 4 U .S . 4 3 6 , 8 6 S . C t . 1 6 0 2 , 1 6 L . E d . 2 d 6 9 4 (1 9 6 6 ). 2 1¶71. Of

f icer Bowm an asked Chapm an, “what did he do w ith the gun[ ? ]” Chapm an said, “he didn’t have a gun but his daddy had a 357 Magnum .” ¶72. Dr. W illiam Turner, the doctor who exam ined t he v ictim , testif ied at C hapm an’s trial.
Dr. Turner said when a sexual-assault patient i s a d mi tted to t he hospital, he is required to perf orm a step-by -step, sexual-assault e xam ination a nd f ill out a repor

t

. Dr. Turner exam ined the victim and “did a vaginal e xam and a vaginal sm ear.” Sam ples taken f

rom the victim ’s

exam w ere sent to the Mississippi Crim e Laboratory

. Dr. Turner also perf orm ed “a wet prep, which is a m icroscopic exam i nation.” The purpose of t his e xam ination, he said, is to look
f or “sperm atozoa,” which would help him “see if a recent sexual intercourse had taken
p l a c e . ” Dr. Turner told the jury that sperm atozoa were present, which led Dr. Turner t o conclude, “based upon reasonable m e d i c a l c ertainty ” that “the patient had recent sexual intercourse.” Dr. Turner also stated his opinion that if a f em ale indi v i d u a l h a s sexual intercourse with a m ale individual who h a s a v e n ereal disease, t hat disease would not necessarily

be transm itted. ¶73. Dr. Turner w as asked on cross-exam i n a t i o n w h e t h e r a ny hair was taken f rom the victim ’s vaginal area. Dr. Turner said that w as n ot one o f his d uties. But he bel i e v e d t h e nurse(s) probably

did so while perf

orm ing the rape kit. ¶74. J.D. Grif

f ith, who worked a s an evidence technician f or J PD a t t he tim e, testif

ied that

on June 1, 1981, he collected “a r ape package” f rom UMMC’s s ecurity o f f ice. Grif f ith took the package to JPD and logged it into evidence.

2 2¶75. Dr. Rodrigo Galvez testif ied that af ter Chapm an was arrested, he exam ined Chapm an. Dr. Galvez obtained a blood s am ple and a saliva sam

p le f rom Chapm an and sent the sam ples to the JPD. ¶76. JPD Of

f icer Mark Land t estif

ied that he had interviewed the victim at Van Horn’s on June 1 , shortly af

ter the a lleged rape. W hen Of f i cer Land arrived at Van H orn’s, the victim looked v ery d istraught. Her “clo t h e s w ere disheveled and her panty hose were torn and snagged a n d she had g rass and stuf f clinging to her c l othing.” Based on t he v ictim ’s account, Of f icer Land e stim ated the c rim e had occurred “approxim ately 200 t o 250 f eet d irectly west of the Oliver Van Horn building.” ¶77. Edwina Ard testif

i ed last f or the State. Ard was em

ploy ed by J P D as a c rim inalist and worked in JPD’s c rim e laboratory

. She had ten y ears’ experience with JPD in 1 981 and was

an expert in the f

ield of serology

. Ard testif ied she had exam ined the b l o o d a n d saliva

exam ples taken f

r om Chapm an. And she exam ined “the vaginal s w abs and the washings”
f rom the victim

. ¶78. Ard testif

ied: “The f

irst tim e I tested the vaginal washing, I detected both ty pe B and ty pe H. The victim is blood ty pe O, and she is a secreter, and there is the H activity , which will m ean that ty

pe B was the f

o reign activity

which was present.” ¶79. Ard said Chapm an is b lood ty pe B , and he is a nonsecretor. She sa i d e i g h t t o ten percent of the population f alls into blood ty

p e B grouping. According to Ard, based on the tests she perf

o rm ed, she could not elim inate Chapm an as the source.

2 3¶80. Ard also conducted a “ gram stain m icroscopic exam ination” of one of the slides m ade

f rom a “vaginal s wabbing” of the victim

. A rd f ound “gram -negativ e diplococci to be present.” Ard said that, based upon a degree of reasonable probability

the presence of this “diplococci . . . could have com e f rom a gonorrhea inf

ection.” ¶81. Following the State’s case-in-chief , Chapm an m oved f

or a directed verdict, claim ing the State had f

ailed to m ake out a p r i m a f acie case that s exual “penetration of the vaginal area had occurred.” The trial court denied the m otion. Chapm an’s Defense ¶82. Chapm an’s def

e nse in the case was that, d uring the tim e the alleged rape occurred on
June 1, h e was with his m other and y o u n ger brother shopping. Chapm an presented alibi testim o ny f

rom his y ounger b rother, older sister, m other, and h is f ather. 11 Chapm an him self testif i ed last. ¶83. Chapm an’s y ounger brother Jam es, who w as age twelve at the tim e of trial, testif ied that he and his m other picked up C hapm an f rom his f ather’s h ouse on June 1 at 11:30 a.m

. The three of t h e m went shopping at “Sham burg’s a n d Zay

re.” Their m other bought som e underwear f

or their sister’s son and som e “sheets.” T h e t hree arrived back at their m other’s house at 2:30 p.m . Jam es said C hapm an was wearing a b lue shirt w ith w hite stripes around the sleeve, and grey pants. C hapm an’s def ense t hen presented a blue shirt and grey pants as evidence, which J a m es identif ied as the c lothes Chapm an was wearing o n J u ne 1. The

1 1 N o te, C

h a p m a n IV n o ted th at C h a p m an h a d alleg ed h is trial co u n sel w as al s o in ef f ectiv e f o r n o t callin g an alib i w itn e ss. C h a p m a n IV , 1 6 7 S o . 3 d a t 1 1 7 2

. A g ain , C h a p m a n IV w as n o t p riv y

to th e reco n stru cted reco rd

.

2 4def

ense also pr esented underwear and sheets as evidence, which Jam es identif ied as the item s his m o ther had purchased f rom the store on June 1. All these ite ms w e r e ma rked f or identif ication and entered into evidence. ¶84. Chapm an’s sister Denise testif ied that Chapm an was l iving w ith their f a ther on June 1 at 308 W est Church Street. Denise said her m o ther and Jam es picked up Chapm an f rom th e i r f a t h e r ’ s around 11:30 a.m . that day to g o s hopping. They returned around 2:30 p .m . Denise said Chapm an was wearing a blue shirt and grey pants at the tim e. ¶85. Chapm an’s m o ther Margie testif ied that she and Jam es had picked up Chapm an f r om his f ather’s house at 11:30 on June 1. She said Chapm an w as in bed at the tim e . She said Chapm an drove h er car to Sham burg’s and Zay

re, where she b ought training pants f o r h e r daughter’s baby and sheets f o r herse l f

. T h e y arrived back at her house around 2:00 p.m ., where Chapm an s tay ed until 3:0 0 p . m. , at which tim e h e went back to his f ather’s house. Margie said Chapm an was wearing a blue shirt and grey pants that day

. ¶86. Chapm an’s f

ather W illie testif

ied that Chapm an was living with him on June 1. He said Margie and J a me s p i cked u p Chapm an f

rom his house on June 1 at 11:30 a.m . to go shopping. W illie said Chapm a n arrived back hom e around 2:00 p.m . He s aid Chapm an was wearing a blue shirt and grey pants. W illie said he owned a gun, a “.22.” He said the gun was locked up in his house on June 1, and he was the only one that has a key

. ¶87. Chapm an t estif

ied that on June 1, his m other and y ounger b rother picked h im up f rom his f ather’s house at 308 W est Church Street between 11:00 and 11:30 a.m . Chapm an drove his m other’s c ar t o Sham burg’s and Zay

re to go shopping, an d t h e y r eturned a round 2:35

2 5p.m . Chapm an said he was wearing a blue shirt with “U.S.A.” written on it, g rey p ants, and

blue tennis shoes. Chapm an said he was a g e sixteen at t he tim e and had just com p leted the tenth grade. Chapm an told the jury he stands six f e et, f ive inches tall. And he weighed about “195, 85 pounds” at the tim e the a lleged r ape occurred. C hapm an also said h e had “peach
f uzz” on his chin on June 1. ¶88. Chapm an said Oliver Van Horn’s is about three blocks a w a y f r om where his f

ather lives. Chapm a n said he never drives that w ay , a n d he h ad never been to Van Horn’s looking
f or boxes. Chapm an said he had never seen the victim bef ore in his lif

e, until she identif

ied him at a prelim inary

hearing. ¶89. Chapm an knew his f a ther owned a g un . B ut Chapm an said he never had borrowed the gun, and he did not have a gun in his possession on June 1. ¶90. Chapm an told the ju r y t h at he had a venereal disease on June 1 , and he had had the disease f or about a m o nth prior. Chapm an denied that he s aid it w as sy p hilis. He s aid he told the o f f i cers the night he was arrested, “I can’t be cha r g e d w i t h rape because I’ve got a venereal disease.” ¶91. Chapm an s a i d h e t o l d t h e of f icers he h ad a scar on his right shoulder. Chapm an claime d the of

f i cers then “snatched” his shirt down to look at it. Chapm an said he was wearing a brown, short-sleeve, knit shirt and blue jeans the night he was arrested. ¶92. O n c r o s s - e x a mination, Chapm an s aid he h ad lived in the a rea n e a r V a n H o r n ’ s location f or about nine y ears prior to June 1. Chapm an claim ed h e had never been i n the area behind Van Horn’s during that tim e. B ut C hapm an adm itted he had seen the dirt road behind

2 6Van Horn’s on n u me r o u s o c c asions prior to June 1, because the road is visible w hen one

drives by Van Horn’s. ¶93. Chapm an also acknowledged h e was f am i liar with the r ailroad tracks located behind
Van Horn’s, having play ed there w h e n h e was y ounger. Chapm an said he quit play ing on the railroad tracks when he “turned twelve y e ars old.” ¶94. Chapm an adm itted the victim had identif ied h im as the perpetrator, but he insisted the victim h ad the wrong person. C hapm an said that d uring the identif

ication lineup c onducted three day s af

ter his arrest, all the other participants were around f ive f eet, f our inches tall.
State’s Rebuttal ¶95. Af ter the def

ense’s case-in-chief

, t he State ca l l e d J P D O f f i c e r C h a rles Crisco to testif y . Of f icer Crisco conducted the lineup on J une 3. According to Of f icer Crisco’s report, f ive p eople p articipated in the lineup, including Chapm an, whom Of f icer Crisco identif

ied in the courtroom

. The participants ranged in ages “[ f ]rom 16 to 22.” All appeared to be about the sam e age. A ll were black m a les. T h e y r a n ged f rom “f ive f oot, nine to six f

oot, two.” Two were s ix f

eet tall and o ver. Three were under six f eet, m easuring, respectively , “f ive f oot, nine; f

i ve f oot, ten; f ive f oot, eleven.” ¶96. Of f icer Crisco said a t the t im e of t he l ineup, Chapm an reported that he was “[ s]ix f oot, two; 160 pounds.” Following Of f i c e r C r isco’s testim ony , t he lineup was entered into evidence. Jury Verdict

2 7¶97. Af

ter the close of evidence, both sides p resented closing a rgum ents. T he case then

was subm itted to the jury under instructions f rom the c ourt and the p arties. The jury f ound Chapm an guilty of rape and im posed a lif

e sentence. There is n o indication that a bif urcated sentencing hearing was held.
Claim s Asserted by Chapm an in his PCR, and Appellat e C o u n sel’s Contention that Reconstructed Record is Inadequate ¶98. Again, Chapm an’s appellate counsel contends the reconstructed r ecord is i nadequate
f or an appeal b ecause t

w o m ain concerns cannot b e addressed: ( 1) alleged discrim inatory jury selection and (2) sentencing. ¶99. Citing Watts v. State , 717 So. 2d 3 1 4 ( M i ss. 1998), counsel argues there m ust be a direct nexus between the m i ssing record a nd t he issues on a ppeal. But unlike i n Watts , the issues of which Chapm an com

plains are am ong the m issing portions of the record. ¶100. Counsel m a intains jury selection cannot be ex a m i n e d b e c a u s e t h e r e c o n s t r u c t e d record does not i nclude a transcript of the j ury s election process, t hus m aking it im possible to

exam ine whether the State e mp l oy ed discrim inatory m ethods in selecting what Chapm an claim s was an all-white jury

. Counsel cites Swain v. A labam a , 380 U.S. 202, 85 S. Ct. 824,
1 3 L

. Ed. 2d 759 (1969), which held that in order to establish a prim a f acie case o f r a c i a l discrimi n ation i n jury selection, a def endant m u st s how prosecutor(s) in the jurisdiction
sy stem atically used p erem ptory challenges to s t rike m em bers o f a particular racial group f rom juries. Counsel also contends the transcript of the sentencing proceedings has not been located. There f

o r e , Chapm an’s conviction and sentence s hould be reversed and the case

rem anded f

or a new trial or dism issed.

2 8¶101. First, as m entioned, there is no indication in the r econstructed record that Chapm an’s

case was bi f

u r c a t e d w i th a g uilt phase and sentencing phase. Chapm an was charged with
rape under Mississippi Code Section 97-3-65(2), which allowed the jury , i n its discretion, to f ix the sentence at lif

e im prisonm ent upon conviction. ¶102. In 1981, this section provided, in pertinent part: Every p e r s o n w ho shall f orcibly ravish any f

em a l e of the a g e of twelve (12) y ears or upward, or who s hall have been convicted of having carnal knowledge of any f em ale above the age of twelve (12) y ears without her c onsent,

. . . upon conviction shall be im

prisoned f

or lif e in the state penitentiary if t he jury by its verdict so prescribes; . . . Miss. Code Ann. 97-3-65(2) (1980). ¶103. At the tim e of Chapm an’s trial, f orm er Rule 5.13 of the Unif orm Crim inal Rules of Circuit Court applied, which allowed, but did not require, the circuit court to h old a bif urcated trial. ¶104. The sam e was recognized in Duncan v . State , in which t he def

endant was sentenced

to lif e im prisonm ent f

or arm ed robbery under Mississippi Code Sect i o n 9 7 -3-79. See
Duncan v. State , 939 So. 2d 772, 781-82 (Miss. 2006) (rejecting claim the trial court erred by not ord ering a bif

u r cated s entencing hearing on def e ndant’s arm ed-robbery conviction since trial court was not required to do so under then-Rule 10.04 of the Unif o rm Rules of Circuit and County

Court Practice). ¶105. Here, the trial court’s sentencing order is contained in the record. It reads in pertinent part: “[ A]f

ter hearing all the evidence and argum e nts of counsel, and receiving instructions of t he [ c]ourt,” Chapm an’s jury “retired and pre sently returned into open [ c]ourt the

2 9f

ollowing verdict, to wit: ‘W e the jury , f ind the def

endant guilty o f rape as charged, and f ix the penalty

at lif e im prisonm ent.’” ¶106. T h e r e c o n s t r u c t e d r e c o r d f u r t her illustrates that a rgum e n ts f or or against li f

e im p risonm ent w ere presented to the jury during closing a r g u ments f rom t he respective parties. ¶107. W e r eject counsel’s claim that the reconst r u c t e d r e c o r d c a n n o t be exam ined to determ ine whether j ury -selection d iscrim i nation occurred b ecause that portion of the record is m i ssing. ¶108. At the tim e of Chapm an’s trial, he argues, the “procedural rule carried f orward f rom S w a i n ” governed. S

e e, e.g. , Thom as v. State , 517 So. 2d 1285, 1286 (Miss. 1987) (citin g Swain , 360 U.S. 202). This required that discrim ination b e proved as a pattern throughout other cases tried by the prosecutor, against the presum ption that the prosecutor properly used
perem ptory challenges. S

e e T h o m a s , 5 17 So. 2d at 1286; S m i th v. State , 500 So. 2d 973, 974 (Miss. 1986). ¶109. C h a pm an’s trial counsel would have h ad to raise this c laim at t rial. Oth e r w i s e , i t would have been barred f rom review on direct appeal. See Sm ith , 500 So. 2d at 975 (“W e have c onsistently held that f ailure to raise an issue capable of resolution a t trial or on direct appeal constitutes a waiver of that claim absent a showing of cause and actual prejudice.”). Nowhere in any o f Chapm an’s pro se f ilings have we f

ound a claim by C hapm an that his trial counsel did or did not raise a Swain violation at Chapm a n ’s 1982 rape trial.

3 0¶110. A l s o , we point out that Chapm an IV m entioned that, in one of Chapm an’s p r o s e

f ilings o r brief

s, Chapm a n had suggested that a B atson 12 violation occurred at his 1982 trial.
See C hapm a n IV

, 167 So. 3d at 1172. Chapm an IV did not speak to any s u ch claim other than m entioning it. ¶111. Nevertheless, as the State points o ut, B atson did not hand down until 1 986, f our y ears af ter Chapm an’s 1 982 rape trial. That sam e y ear, the U nited States Suprem e Court also held the Batson rule would not have retroactive applic a t i o n on collateral review of convictions that had becom e f

inal bef ore B atson was announced. In Allen v. Hardy , the Court said: [ R]etroactive application of the B ats o n rule on collateral review of f i nal convictions w ould seriously disrupt t he a d m inistration of justice. Retroactive applica t i o n would require trial courts to hold hearings, of ten y ears af

ter the conviction beca me f

inal, to determ ine whether the d ef e n dant’s proof concerning the prosecutor’s exercise of challenges establis h ed a prim a f acie case of discrim i n a t i o n . W here a def endant m ade out a p rim a f acie case, the court then would be required t o a sk the prosecutor to explain his reasons f or the challenges, a task that would be im possible in v irtually every case since the prosecutor, rely ing on Swain , would have h ad no reason to th i n k s u c h an explanation w ould som eday be necessary . Many final convic t i o n s therefore would be vacated, with retrial h ampered by problems o f lost evidence, faulty memory, and missing witnesses.
A l len v. Hardy , 4 78 U.S. 255, 260-61, 1 06 S

. Ct. 2878, 92 L. Ed. 2d 199 (1986) (inner quotations and citations om itted) (em phasis added).

1 2 B a t s o n v . K en tu ck y , 4 7 6 U .S

. 7 9 , 8 2 , 1 0 6 S

. C t. 1 7 1 2 , 1 7 1 5 , 9 0 L

. E d

. 2 d 6 9 (1 9 8 6 ) o v erru led th at p o rtio n o f S w a in , w h ich h e ld th at, “alt h o u g h th e u se o f p erem p to ry ch allen g es t o strik e b lack j u ro rs o n acco u n t o f race v io lated t h e E q u al P ro tectio n C lau se, a d ef en d a n t co u l d n o t estab lish su ch a v io latio n so l ely o n p r o o f o f th e p ro secu t o r’s actio n at th e d ef en d an t’s o w n trial.” A llen v. H a rd y , 4 7 8 U .S

. 2 5 5 , 2 5 8 -5 9 , 1 0 6 S

. C t. 2 8 7 8 , 9 2 L

. E d . 2 d 1 9 9 (1 9 8 6 ) (citin g S w a in , 3 8 0 U .S . at 2 2 0 -2 6 ). 3 1¶112. That said, all we have been able to l ocate i n t h e ma t t er bef ore us is a statem ent by Chapm an contained in the f act section of Chapm an’s appellant brief in Chapm an III that his trial consisted of a “(12) m e m b er white f

em ale jury .” Chapm an also asserte d a c l a i m in Chapm a n II

that his jury

was not chosen f

rom a f air cross-section of

the com m

unity

. ¶113. This Court explained as f ollows in De La Beckwith v. State , 707 So. 2d 547 (Miss. 1997): “[ T]he statutory m ethod of selecting jurors is directory , not m andatory , and unless it is s hown that the me t h o d u s e d was f raudulent or such a r adical departure f

rom the m ethod prescribed by the statute a s to be unf air to the def endant o r to p revent due process of law, t his Court will not reverse.” Capler v. S tate , 2 37 So. 2d 4 45, 448 (Miss. 1970), vacated in part , 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, on rem and, 268 So. 2d 3 3 8 ( M i s s . 1972) (quoting Arm strong v. S

tate , 214 So. 2d 5 89, 5 94 (Miss. 1968)), cert. denied , 395 U.S. 965, 89 S

. Ct. 2109, 23 L

. Ed. 2d 750 (1969). “ T he jury l aws of this state are directory and the s election of the jury in an i rregular m anner does not render it illegal.” Rhone v. State , 254 So. 2d 750, 7 52 (Miss. 1971). Rather, the question is “whether the jury lists reasonably ref lect a cross-section o f the population.” Peterson v. State , 268 So. 2d 335, 336 (Miss. 1972). ¶114. Chapm an does not s ay how, or even that, the trial court f ailed to com

ply with statutory l a w f o r s e lecting jurors. 13 And, as already m entioned, nor does Chapm an say , or eve n indicate, that his trial counsel raised a Swain violation at trial. ¶115. As the reconstructed reco r d i l l u s t r a tes, there is no m erit in either claim asserted by appellate counsel. W e now address Chapm an’s other claim s. (1) Destruction of evidence violated Chapm an’s due process rights.

13 C o n trary to C h ap m an ’ s assertio n t h a t h is j u ry w as co m p o s ed o f all w o men , th e reco n stru cted r eco r d sh o w s th e j u ry w a s ad d ressed rep eated ly as “L ad i e s a n d g e n tlem en ” th ro u g h o u t th e p ro c eed in g s. 3 2¶116. As m entioned, an order w as entered by the circuit court in A pril 1 985, ordering the

f ollowing evidence to b e turned over or destroy ed: saliva sam ple, blood sam

ple, rape pack,

t w o pairs of underwear, one blue shirt, one p air of grey pants, a nd one “checked sheet

. ” 1 4 ¶117. Beginning with his PCR m otion f iled in 2006, Chapm a n m aintains that DNA testing of the rape pack would exonerate him

. And t he court-ordered destruction of it violated his due-process rights. W e disagree. ¶118. First, as Chapm an I e x p l a i n e d , it was n ot until 2009 that the Legislature enacted a procedure f

or the preservation and destruction of DNA evidence. Chapm an I , 47 So. 3d at 209. “ T h e S t a t e must retain biological evidence ‘in the am ount and m anner suf f icient to d e v elop a DNA prof

ile f rom the biological m aterial.’” Id

. (quoting M iss. Code A n n . § 99-49-1(3)(d)). “The UPCCRA a lso d etails under what circum stances biological evidence

m ay be destroy e d.” I

d

. (citin g M i s s . Code Ann. § 99-49-1(3)(f )-(h)). But a s Chapm an I pointed out: “[ T ]his law was not in ef f ect when evidence used i n Chapm an’s prosecution was ordered destroy ed in 1985. Theref o re, it has no application here.” Id

. ¶119. Chapm an I next looked at Mississippi l a w d e a l i n g w i t h spoliation of evidence. Noting Cox ( supra ), Chapm an I said in order to prove a spoliation claim : F i r s t , it m

ust be determ ined whether the evidence would have play ed a signif icant role in the def

endant’s case. To p lay a s ignif ic ant role, the exculpatory nature and value of the evidence m ust have been a

pparent bef

ore the evidence was lost. The second part of the test requires that the def endant h a v e n o w a y of o btaining com p arable evidence by other m eans. A third

14 A g ain , acco r d in g to th e reco rd , th e clo th es i tem s w ere e n t ered in to ev id en ce b y th e d ef en se in su p p o rt o f th e d e f

en se’s claim th at, at th e tim e o f th e rap e, C h ap m an w as w ith h is m o th e r p u rch asin g u n d erw ear f o r h is sister’s in f

an t s o n , a n d t h at C h ap m an w as w earin g d if f eren t clo th es th an th o se d escrib ed b y th e v ictim

. 3 3consideration is wh e t h e r the governm ent acted in bad f aith i n f ailing to preserve the potentially

exculpatory

evidence. Chapm a n , 47 So. 3d at 2 09 (quoting Cox v. State , 849 So. 2d at 1266); see a lso Arizona v. Y o ungblood , 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (unless a crim inal def endant can show bad f

aith on the part of the State, f ailure to preserve potentially usef ul evidence does not constitute a denial of due process). ¶120. The Court of Appeals noted that, even though this test “has perhaps only been applied in the context of the prosecution’s duty to preserve evidence bef ore conviction, we f

ind [ the test] helpf

ul in resolving the issue bef ore us.” Id

. ¶121. Apply ing the test to Chapm an’s claim , C hapm an I f

ound Chapm an’s bare allegation that the State destroy e d evidence in his case in bad f a i t h w a s i n s uf

f icient to warrant postconviction relief

. Id

. Chapm an I agreed with the State that “going through the trouble of obtaining an order f

rom the c ircuit court to p erm i t destruction of the evidence’

. . . negate(s) a claim of bad f aith.” Id

. ¶122. W e agree with Chapm an I

. No rule e xisted in 1985 requiring the S tate to preserve biological evidence used in Chapm an’s 1982 trial. ¶123. W e note a sim ilar case f rom Florida. In Swain , 937 So. 2d 1 160, the def e n dant was convicted i n 1 9 7 6 o f sexual b attery and robbery

. In the c o urse o f requesting DNA testing under Florida Rule of Crim inal Procedure 3

. 8 5 3 , the def endant learned that e v idence had been ordered destroy e d by the trial court in a post-trial order; the evidence i ncluded “vaginal swabs” f rom o ne of the victim s. I d

. at 1160-61. The def

endant c laim e d the evidence was

3 4potentially e xculpatory and t h e d e struction of i t constituted a d ue-process violation under Arizona v. Y

oungblood , 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). ¶124. That Florida court f ound no m erit in the claim , holding: “The f a ct that such evidence

was d estroy e d af

ter trial and prior to the advent of DNA testing does not constitute bad f aith.
No o n e at that tim e could have anticipated that such evidence w ould have any f uture evidentiary

value.” Id

. at 1161. ¶125. The sam e r ationale applies here. In Chapm an’s claim t hat his due process rights were violated by the destruction of the biological evidence used in Chapm an’s 1 982 rape trial has

no m erit. (2) Chapm an’s indictm ent w as defective

. ¶126. Chapm an claim s his indictm ent i s d ef icient o n i t s f

a c e because all i t contains is the statutory language f

or rape, without citation to the statute. Chapm an say s i t also f ails to include the e ssential elem e nts of r ape. Chapm an f u rther claim s the indictm ent i s def ective because it does not state a specif ic tim e and location of the alleged crim e such that Chapm an would have been able to present a proper alibi def ense. ¶127. According to the record, C hapm an’s indictm ent w as l ocated on a m icrof ilm f ile in the Hinds County

Clerk’s Of

f ice. The copy

obtained provides as f

o llows: The Grand Jurors f

or the S tate of Mississippi, taken f rom t he body of good and law f u l p e r s ons of the First Judicial District of H i nds County , in the State of Mississippi, elected, im

paneled, sworn, and charged t o inquire in and f or said District of Hinds C ounty and State af o resaid, i n the nam e a nd by the a uthority of the State of Missi s s i p p i, upon their oaths present: That Richard Chapm an in s aid District, C ounty and State on 1st day of June, A.D., 1981, did wilf ully , unlawf u lly , f eloniously and f

orcibly ra p e a n d ravish [ Victim ,] a f em a l e over the age of twelve y e ars, w ithout the consent and against t he will of [ Victim ].

3 5The copy also shows the c lerk’s f ile stam p, dated August 10, 1981, and a s ignature im m ediately

below it. ¶128. In 1 981, Rule 2.05 of the Unif orm Crim inal Rules of Circuit Court Practice controlled the f orm of indictm ents. Harden v. State , 465 So. 2 d 321, 3 23-24 (Miss. 1 985). Rule 2.05 required the i n dictm ent provide “a plain, c o ncise and def inite wr i t t e n s t atem ent of the essenti a l f

acts constituting the of

f ense charged and shall f

ully notif y the def endant of the

nature and cause of the accusation against him .” Hollom an v. S tate , 656 So. 2d 1 134, 1139 (Miss. 1995). Rule 2.05 also required that an indictm ent include: (1) The nam e of

the accused; (2) The date on which the indictm ent was f iled in each court; (3) A statem ent that the prosecution i s b r o u g h t in the n am e [ of ] and b y the authority of the State of

Mississippi; (4) The county

and judicial district in which the indictm ent is brought; (5) The date and if applicable the tim e, on which the o f f ense was alleged to be com m itted. Failure t o state the correct date shall not render the i n d i c t m ent insuf f icient; (6) The signature of

the f orem a n of

the grand jury

issuing it; and (7) The words “against the peace and dignity of the state.”
Id . (quoting then-Rule 2.05). ¶129. Though recom m ended, thi s C o u r t n o n e theless has h eld that citation of the statute under which the charge is brought is not an absolute r equirem e nt in a n indictm ent. Winters

v. State , 52 So. 3d 1172, 1175 (Miss. 2010). W hat is required is that t he indictm ent provide

3 6e n o u g h f

acts to put the def

endant on notice of the statute that is a l leged to have be e n violated. Culp v. State , 933 So. 2d 264, 277 (Miss. 2005). ¶130. Here, the language contained in Chapm a n’s indictm e nt: “did wilf ully , f eloniously and
f orcibl y r a p e and ravish [ Victim ], a f em ale a bove t he age of twelve y e a rs, without the

consent and against the will of [ Victim ],” gave Chapm an a de quate notice he was being ch a r g e d w i t h f

orcible rape of a f

em ale over the age of t welve in violation of Mississippi Code Section 97-3-65(2) (1980)–along with the elem ents prescribed therein. In 1981, that Section provided, in pertinent part:
E v ery person who shall f orcibly ravish any f

em ale of the age of twelve ( 1 2 ) y ears or upward, or who s hall have been convicted of having carnal knowledge of any f em ale above the age of twelve (12) y ears without her c onsent,

. . . upon conviction shall be i m

prisoned f or lif e in the state penitentiary if t he jury by its verdict so prescribes. . . . Miss. Code Ann. § 97-3-65(2) (1980). ¶131. In Arm stead v. State , 503 So. 2d 281 (Miss. 1 987), the def endant was charged with

attem pted rape under Section 97-3-65(2) a n d M i s s i s s i p p i C o d e S ection 97-1-7 ( which applies

to attem pted of f enses). The def

endant a rgued the indictm ent was f atally def ective because it f ailed to include the term

“intent.” Id . at 282-83. ¶132. The A rm stead Court f ound no m e rit in this c laim , say ing: “The indictm ent in question alleged that [ Arm stead] ‘unlawf ully , wilf ully , f eloniously , and f

orcibly did attem pt to rape and ravish [ Victim ]

. . . against the will and without the consent of [ Victim ].

. . . “ Id

. at 283. Noting f orm er Rule 2 .05, t h e A rm stead Court held the indictm ent suf f iciently notif

ied the def endant of the nature and cause of

the accusation against him

. Id

.

3 7¶133. Likewise, Chapm an’s a ssertion that his indictm ent was d ef icient because it f

ailed to cite the statute and f

ailed to include the essential elem e nts of rape is without m erit. ¶134. Chapm an’s assertion the i ndictm ent did not provide a specif ic tim e and location of the alleged crim e so as to allow him a proper alibi def

ense also is without m erit. ¶135. The indictm ent c learly p rovides that the alleged of f ense occurred in the First Judicial District o f Hinds County on June 1 , 1 9 8 1

. Nothing else was required in this instance concerning place and tim e. ¶136. In Daniels v. Sta t

e , 7 4 2 S o . 2 d 1140, 1143 (Miss. 1999) (quoting U nited States v.
Cochran , 697 F. 2d 600, 6 04 (5th Cir 1983)), overruled on other grounds b y Wilson v. State , 194 So. 3d 855 (Mis s . 2 0 1 6), this Court said “an allegation as to the tim e of the o f f ense is

not a n e ssential elem ent of the of f e n s e c h a r g e d i n the indictm ent a n d, ‘within r easonable lim its, p roof of any date bef ore the return of the indictm ent within the s tatute of lim itations is suf f icient.’” ¶137. H e r e , that Chapm a n’s indictm ent d id n ot include a specif ic tim e the all e g e d r a p e occurred, did not render the indictm ent f acially invalid or def

icient. ¶138. W i th regard to Chapm an’s concern t hat a specif ic location where the of

f ense occurred did not appear in the indictm ent, we ref er to t his Court’s opinion in Meadows v. State , 211 Miss. 557, 52 So. 2d 289 (1951). There, the def endant was convicted of

leaving the scene of a n accident. Id

. at 290. The def endant dem

u rred, c laim i ng the indictm ent was vague and indef i n ite because it f

ailed to state the place, or even the highway , where the accident occurred. Id. The trial court ref u sed the dem

urrer. Id.

3 8¶139. This Court f o und no e rror in the trial cour t ’ s r e f usal, holding, “ M ost m otor vehicle accidents do occur on a highway

. But the term s of the statute a re broad enough to cover

m otor vehicle accidents w hich result in the injury or d eath of a hum an being, w hether such accidents occur on the highway or elsewhere.” I

d . ¶140. The sam e rationale applies here. Location is not an e lem ent o f rape. And Section 97- 3-65(2) undoubtedly was intende d t o apply at any place or l ocation where such an of f ense

m ight have occurred in this state. ¶141. Rule 2.05(4), which required “the county and judicial district in w hich t he indictm ent is brought” to be included, was f or jurisdict i o n a l purposes. And both were included in Chapm an’s indictm ent. This issue is without m erit. ¶142. Lastly , f

o r the sake of thoroughness, we note that t he s ignature contained on the copy of the indictm ent appears to be that of a d eputy or assistant c ircuit court clerk. In Wilson v. State , 904 So. 2d 987, 996 (Miss. 2004) (citing Stanford v. State , 76 Miss 257, 24 So. 536 (1899)), this C ourt held that “the f iling of an indictm ent, t he dating of it and signing on the entry by the circuit clerk is the exclusive evidence of its f inding and presentation b y the grand jury to the court.” (3) The jury w as not properly sw orn. ¶143. Pursuant to Mississippi Code Section 13-5-71, m em bers o f t h e p e t i t j ury shall be sworn as f

ollows:
Yo u , a n d each of y ou, do solem nly s wear (or af f i rm ) that y o u will w e l l and truly try all issues and execute all w r it s of inquiry that m ay be subm i tted to y ou, or lef

t to y our d e c i sion b y the court, during the present term , and true verdicts give according to the evidence. So help y ou God.

3 9¶144. This Court repeatedly has held that a rebuttable presum ption exists in every case that the t rial judge has properly perf orm ed his or her d

uties, and the respective def e ndant has the burden to overcom e this presum p tion. Bell v. State , 360 So. 2d 1206, 1215 (Miss. 1978). ¶145. In Bell , this C o urt noticed without assignm ent o f error that the record did not show that t he jury had b e en s p ecially sworn in a capital c a se, as provided by Mississippi Code Section 13-5-73.The Bell Court, h owever, declined to reverse, s tating: “[ T]he presum ption is that the trial judge properly perf orm ed his duties and that this r ebuttable presum ption has not been overcom e.” Id

. at 1215. ¶146. Here, Chapm an’s blanket assertion t hat his jury was not p roperly sworn likewise f ails

to overcom e the presum

p tion that the trial judge f a i led to perf

o rm his duties. This issue is without m erit. (4) The State failed to com ply w ith discovery

. ¶147. Chapm an c laim s the State f ailed to com

p ly with the t rial court’s 2005 order to search
f or biological evidence relating to Chapm an’s 1982 r ape trial. A s m e ntioned, the State responded that all evidence f ro m C hapm an’s rape case had been destroy ed pursuant to an April 1985 court order. For reasons already discussed, this claim

is without m erit. (5) Ineffective Assistance of Counsel ¶148. Chapm a

n c l a i m s h e r e c e i v e d c o n s t i t u t i o n a l l y i nef

f ective assistance o f counsel because his attorney agreed a t trial to f ile an appeal but f

a iled to do so even though Chapm an paid his attorney f or that service. Again, the reconstructed record s hows t hat C hapm an becam e aware of trial counsel’s alleged f ailure to pursue a direct appeal, t hrough no f ault of Chapm an’s, as

4 0late as A ugust 1983. As discussed, Chapm an had a judicia l r e me d y a t h i s disposal at that

tim e to obtain relief

. And beginning on April 17, 1984, C hapm an had a statutory r e medy available to hi m f

o r t h e next three y ears t o o btain r elief

. But Chapm an took advantage of neither. ¶149. F u r t h e r , this Court would not have been able to a d dress Chapm a n’s i n e f f e c t i v e assistance-of

- counsel claim on direct appeal because it included m atters that would not have been contained in a ty

pical trial-court record. Ordinarily , inef

f ective-assistance-of

-counsel clai ms are m ore appropriately brought during p o st-conviction proceedings. T h is is because during direct appeals the Court is lim ited to the trial court record in its review o f the claim , and there m a y be instances in w h i ch insuf f icient e vidence e xists within the record to address the claim adequately

. Archer v. State , 986 So. 2d 9 51, 9 55 (Miss. 2008) (citing Wilcher v. State , 863 So. 2d 776, 825 (Miss. 2003)). ¶150. This issue is without m erit. (6) State’s Im proper Closing Argum ent ¶151. Appellate counsel contends the State’s closing a rgum e n t included a “send a m essage” ty pe adm onition to the j ury , to “let Richard Chapm an k now what the people of Hinds County think about raping.” Counsel also subm its t hat closing argum ents m ay give som e clue as to how m uch of the transcript has been lost. Counsel c ontends t hat the State talked about a poly g raph exam , but no poly graph testim ony is f ound i n t he t ranscript. A lso, a ccording to

4 1counsel, there does not appear to be any recorded t estim ony of the suspect m aking a certain

alleged com m ent to the victim

. 15 ¶152. First, Chapm an entere d n o o b j e c t i o n a s t o t h e State’s alleged “send a m essage”

com m ent. Only when argum e nt is “so inf lam m atory ” that the trial court should have acted

on its own m o t i o n w ill this Court review the a r gum ent in the absence of objections. Gray

v. State , 487 So. 2d 1304, 1312 (Miss. 1986) ( citing Griffin v. S t a t e , 292 S o. 2d 159, 163 (Miss. 1974)). ¶153. In Gray , the State said to the jury : “ You a re the law in Yazoo County tonight. You decide what kind of conduct is going to be tolerated here.” Id

. at 1312. However, def ense counselentered n o o bjection. Earlier in the St a t e ’ s c l o s i ng in Gray , def ense counsel did object to the sam e com m ent m ade by the State, and the trial court noted the objection. Id

. ¶154. On appeal, the Gray Court f ound that none of the rem a rks was “so inf lam m a tory ” that the tri a l court should have a cted on its own m otion. Id. I n speaking to t he objectionable

com m ent, Gray said it was an “incorrect statem e nt of law, but as such it d oes not exceed the bounds of proper closing argum ent.” Id. ¶155. Likewise, h e re, the State’s com m ent was not “so inf lam m ator y ” t h a t the trial court should have acted on its own m otion. Further, it l ikely was a f air adm onition in response to def ense counsel’s appeal to the jury that Chapm an’s lif e “is in y our hands.” 16

15 T h e alleg ed co m m en t is v er y v u l g a r , a n d w e f in d its rep ro d u ctio n h ere to b e u n n ecessary .

16 D ef en se co u n sel p resen ted a p arab le to th e j u ry ab o u t a y o u n g b o y w h o cau g h t a b ird , an d w ith b ird in h an d w en t to h is g ran d f ath er an d a sk ed g ran d f

ath e r t o tell h i m w h eth er th e b ird w as aliv e o r d e ad

. T h e g ran d f ath er said to th e g ran d s o n , “If I say h e’s aliv e, th en 4 2¶156. Concerning the State’s com m ent about a poly graph, the record shows the f o llowing: [ C hapm an] denies s ay ing that

. . . he told the police of f icer that h e could get sex any tim e he wanted to until Mr. Peters got up and s aid, “ W ell, what about Mr. Ace? W hat about him ? He’s the one y ou s aid it t o when y ou were over there with t h e p o l y g raph.” “Oh, y es. Now I rem em ber.” Now when he h as no choice and h e knows that we’ll go get that person and b ring them over here, as we have seve r a l t i m es in this trial, now he rem em bers. That is an inconsistency

. ¶157. This Court has held tha t “ a n y e v i d e n c e pertaining to a witness’s of f er to take a poly g raph, ref

u s al to t ake a poly g raph test, the f act that a w itness took a poly graph test or the results of a poly graph test is inad mi s s i b l e a t t rial by the State o r by the def ense.” Weatherspoon v. State , 732 So. 2 d 158, 163 (Miss. 1 999). Reversal, however, is not
autom atic upon adm ission of s uch evidence. Id. Instead, what is i m p ortant is the “nature of the error and the circum stances attendant to its disclosure.” Id. ¶158. Notably , Weatherspoon overruled Conner v. State , 632 So. 2 d 1239 (Miss. 1993), to the extent i t held that t estim ony concerning a l ie-detector test w as p roper in order to rehabilitate an im

peached witness. Weath erspoon , 7 32 So. 2d at 161-62. Weatherspoon also overruled Manning v. S t ate , 726 So. 2d 1152, 1179 (Miss. 1998), to the extent that it
f ound that testim ony f

rom the State’s witness t hat h e h ad taken a poly graph test was proper redirect af ter the witness’s credibility had b een attacked by the def ense o n cr o s s - e x a m i nation. Weatherspoon , 732 So. 2d at 162. ¶159. Here, the record s hows that during Chapm an’s cross-exam ination, t h e S t a t e a s k e d Chapm an if he had told the police “there w as n o need in [ him ] r a p i n g a n y body , that y ou

y o u ’re g o i n g t o ma s h h im to d eath

. If I say h e’s d e a d , th en y o u ’re g o in g t o let h im f ly aw ay .” D ef

en se co u n s el th e n said to th e j u ry : “I say to y o u th is case is in y o u r h an d s.” 4 3could g et all y ou wanted f rom whoever y ou w a n t e d ? ” C h apm an d enied say ing that. The
State replied, “ I’ll ask y ou if y ou deny that o n J une the 9th of 1981, at approxim ately 1 o’clock in the af

t ernoon – one hour af

ter noon – on June 9th of 1981, y ou t o l d S e rgeant (inaudi ble) at the J ackson Police Departm ent that y ou c ould get a ll the sex y ou wanted without having to f

orce any one to give it to y ou? ” Chapm an ’ s response is denoted as “(inaudible).” The State then asked, “Now, when y ou told the p olice that, why did y ou tell them that? ” Chapm an replied, “Because it is true.” ¶160. W e f

ind that when the State ref erred to a p oly graph test during closing argum ent, the record indicates it l ikely was i n ref erence to this portion of

Chapm an’s cross-exam ination,

a n d l i kely occurred during the portion denoted as (inaudible) im m ediately af ter when th e State said, “y ou told Sergeant (inaudible).” ¶161. W e f

ind n o signif

i cance in this. The r ecord apparently contained only two ref erences
to a poly graph test, with no suggestion that Chapm an either passed o r f ailed, or if he actually took s uch a test. Weatherspoon reaf f irm ed a previous decision f rom this Court ref

using to f ind reversible error “based on inadm issible evidence regarding the of f er to take a p oly graph,

or the ref u s a l t o t a k e a poly graph, o r that a witness had passed a poly graph test.” In Weatherspoon , 732 So. 2d at 163, this Court cited the f ollowing authority : Pittm an v. State , 2 36 Miss. 592, 111 So. 2d 415 (1959) ( unsolicited response by witness regarding def

endant being held in j ail to take a poly graph was not reversible error w here the results were not disclosed to the jury , the trial judge held that the e vidence was not relevant, the m otion f or m istrial w as not tim ely , and the error could not have prejudiced the def endant); Stringer v

. State , 4 54 So. 2d 468 (Miss.1984) ( h olding that t he m ere m ention of the f ailure t o subm it to poly graph testing could not be reversible when c o m p ared to the other evidence placed bef

ore the jury and the f

act that def

endant did not object to the

4 4adm ission o f the evidence); Garrett v. S tate , 549 So. 2d 1325, 1328-31 (Miss. 1989) (f inding that the i nadvertent disclosure to the jury of a release signed by def endant s tating that he had agree d t o take a poly graph test did not unduly inf luence the j ury , “although error, i t w a s n ot prejudicial requiring reversal under the f

acts a n d circum stances o f this case”); Pennington , 437 S o. 2d at 39-40 (holding that innuendo that prosecution witness p assed poly gra p h test does not require reversal since the def ense f ailed to tim ely

object). ¶162. Here, the record s h o w s n o o b j e c t i o n was m ade to a ny m e n tion by the S tate of a poly g raph test. A nd any error with regard to its m ention was harm less bey o nd a r easonable doubt. The reconstructed record dem onstrates t hat the State’s evidence against Chapm an consisted of overwhelm ing direct evidence. And t he outcom e of C hapm an’s trial would not have been any dif

f erent without the error. ¶163. As to appellate counsel’s concern that the record om i ts a portion f rom the vic tim ’s testim o ny when she was a sked about a vulgar com m ent Chapm an allegedly m ade to her, that

concern i s of n o m om ent to u s w hatsoever. This was an alleged f act in the case which both the State a nd t h e def

ense f elt the need to m e ntion in t heir respective closing argum ents, which in turn was f

or the jury ’s consideration to d eal w ith, as with all the other alleged f acts in the case. ¶164. This issue is without m erit. (7) Illegal Sentence ¶165. L a s t l y , c o unsel subm its that a lif e sentence im

posed upon a sixteen-y ear-old f or a crim e that was not a h o micide is excessive and constitutes cruel a n d unusual punishm ent, citing Miller v. Alabam a , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).

4 5¶166. There is no m erit in this claim

. Miller held that a m andatory lif e sentence w ithout the possibility

f or parole f

or those under age eighteen a t the tim e their crim es were com m itted violates the E ighth Am endm ent’s prohibition o n cruel and unusual punishm ents. M iller , 567
U.S. at 470. ¶167. Mil

l er is inapplicable in this case. Chapm an’s lif e sentence was neither m andatory

nor without parole eligibility

– a p arole which, according to counsel, has now com e to f ruition.
CONCLUSION ¶168. W e reverse and render the judgm ent o f H i n d s County Circuit Court granting Chapm an leave to f ile an out-of

-tim e appeal f

rom his rape conviction and lif e sentence. ¶169. REVERSED AND RENDERED.
W A L L E R , C . J . , R

A N D O L P H , P . J., M A X

W E L L , C H A M B E R L I N A N D I S H E E , JJ., CONCUR. COLEMAN, J., SPECIALLY CONCURS W I T H SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., MAX WELL, BEAM, CHAMBERLIN AND ISHEE, J J. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. COLEMAN, JUSTICE, SPECIALLY CONCURRING: ¶170. I concur w ith the reasoning and holding of the m ajority

. I write separately to reiterate

m y position that, although o ur cases continue to ref er to it as a procedural b ar, t he L e gislature created substa n t i v e l a w when it enacted the three-y ear statute of lim itations applicable to claim s f or post-conviction relief

. Miss. Code Ann. § 99-39-5(2) (Rev. 2 015). Trea ting substantive law as procedural lessens the im petus upon the Court to enf orce it, violates basic law of separation of powers, and contradicts prior precedent. See W illiam s v. S

tate , 222 So.

4 63d 265, 268-271 ( ¶¶8-15) (Miss. 2017) (Colem an, J ., concurring). As I wrote in William s ,

the Court should correct its m ischaracterization of statutory bars as procedural ones. RANDOLPH, P.J., MAX WELL, BEAM, CHAMBERLIN AND ISHE E , J J ., JOIN THIS OPINION.
KITCHENS, PRESIDING JUSTICE, DISSENTING: ¶171. I respectf

ully d issent. Neither Chapm an n o r t h e S t ate has raised the circuit court’s grant of an out-of

- tim e appeal as a n issue. I would not disturb t he circuit court’s f inding that Chapm an is entitled t o an o u t -of

- tim e appeal. The sam e analy sis the m ajority em ploy s to

reverse the circuit court’s grant of an out-of -tim e appeal was c onsidered and r ejected by this
Court in Chapm an v. State , 1 67 So. 3d 1170 (Miss. 2015) ( Chapm an I V )

. We h e ld that Chapm an’s claim

that his trial counsel was inef f ective f or neglecting to f

ile an appeal was

not tim e barred because it im plicated Chapm a n’s f

undam ental right to a direct appeal of his conviction and sentence. ¶172. Because this issue already h as been decided, it is the law of the case. B ecause the f acts did not c hange m ate r i a l l y a f t er rem and, we should f

ollow Chapm an IV

. Today ’s decision

m ust leave e very one involved in this case wondering why , i f we were g oing to reach the result e mb r a c e d b y the m ajority today , we d id not do so in Chapm a n I V , when the sam e issues were bef

ore u s , r a t h e r than causing the parties and circuit court t o e xpend the tim e, ef f ort, a n d re s o u r c e s they have devoted to uncovering the aged record of C hapm an’s trial.
W i th respect, I r eject the m ajority ’ s conclusion t hat t h e t r i a l court erred by granting Chapm an’s reques t f

or an out-of

-tim e appeal. But because the reconstructed record is

4 7inadequate to allow a m e aningf ul appeal, pursuant to our m andate in Chapm an IV , I would reverse and rem and f

or a new trial.
I. This Court s hould not disturb the circuit court’s finding that C h a p m a n i s entitled to an out-of-time appeal.
A. C hapm a n IV ¶173. I n eed not repeat the c o mp l i c a ted procedural history of Chapm an’s quest to obtain judicial r eview of hi s convictions of rape and robbery because it h as been recounted adequately by the m ajority opinion. But I do discuss our decision in Chapm an IV because resolution of

the issue of

Chapm an’s entitlem ent to an out-of -tim e appeal d epends in large part upon it. In Chapm an IV , this Court reviewed on certiorari an appeal f rom the denial of Chapm an’s m otion f

or post-conviction relief f rom his 1 982 conviction o f r ape and sentence of l if e im p risonm ent. Chapm an IV , 167 So. 3 d at 1170. Chapm an m ade two distinct claim s which, the Court f

ound, im plicated potential constitutional rights v iolations: (1) he claim ed his t rial record and transcript had b een destroy ed im properly ; and (2) he claim ed that he had received inef

f ective assistance of counsel d ue to trial counsel’s f

ailure to f ile a direct appeal af ter he was paid to undertake that endeavor. I d. at 1172. Chapm an also raised other issues attacking the proceedings at trial. Id. at 1172-73. ¶174. This C o u r t d e t e r mi n e d t h a t , w i t h o u t t h e t r i al record and transcript, “it [ wa]s im p ossible to address the m erits of Chapm an’s claim s and his assertion of inef f ective assistance of counsel.” I

d . a t 1 1 7 3. W e f

ound that the absence o f a r ecord, i n light of the statutory duty t o preserve the record of C hapm an’s trial, m a y have violated his due process rights, e f f ectively deny ing his right to appeal. Id. Further, we recognized that a def endant’s

4 8constitutional r i g h t t o t he ef f e ctive assistance of counsel is violated b y def e n se counsel’s
f ailure to ensure there is at l east a partial transcript o f the trial proceedings that is suf f icient

to enable an adequate appeal. Id. (citing B rawner v. State , 947 So. 2d 254, 262 (Miss. 2006)). ¶175. Chapm an also alleged that his trial counsel was inef f ective f or “not f iling his direct appeal, and thereby f

a iling to secure a transcript of his trial.” Chapm a n , 1 67 S o. 3d at 1172.
He averred that he had p aid his trial counsel, to f ile an appeal and that trial counsel had agreed to do so. Id. D espite his trial attorney ’s assurances, no a ppeal ever w as f

il e d

. I d. Chapm an asserted that he f irst had discover e d no a

ppeal had been f

iled when he was so inf orm ed b y the court clerk two y ears a f ter his conviction. Id. I n addressing t hese a llegations,

we em phasized that a “def

endant has an ‘ absolute right’ to ap p e a l

. ” I d. at 1173 (citing
Harden v. State , 4 60 So. 2d 1194, 1200 (Miss. 1984); Douglas v . California , 372 U.S. 353, 358, 8 3 S

. Ct. 814, 9 L. Ed. 2 d 811 (1963) (declaring that all def endants are e n titled t o a

m eaningf ul appeal)). W e f

ound that the “lack o f a record, which C hapm an a t tributes to the trial court and to his attorney ’s alleged f a ilure to f ile his appeal, ef

f e c tively denied Chapm an his r ight to an appeal a nd to a review of the m e rits of his claim o n PCR.” Chapm an , 167 So. 3d at 1173. Moreover, we held that, because Chapm a n raised credible allegations im plicating violations of his f

undam ental constitutional rights, his claim s w e r e e x cepted f rom the procedural bars o f the Unif orm Post-Conviction Collateral Relief Act (UPCCRA), including the statute of lim itations. Id. at 1174-75.

4 9¶176. This Court concluded that the “extraordinary circum stances,” including t he lack of a direct appeal, the lack o f a court record, def ense counsel’s f

ailure to obtain a transcript, and lack of appellate review of Chapm an ’ s c l a im s on the m erits entitled him to an evidentiary hearing. Id. at 1174. W e o rdered the trial c ourt to determ ine at t he h earing “what, if any thing, of the trial record exists, and to provide Chapm an and the State an opportunity to locate or

reconstruct the trial record and transcript, or to produce an equivalent picture.” Id. W e went

on to explain that a “suf f icient equivalent of t h e r e c o r d” would be “enough m aterial inf orm ation specif

ic to the claim s raised f

or t he trial c ourt judge to f airly consider the m erits of each issue.” Id. ¶177. Of critical im

portance to the instant a ppeal, the Court s et f orth exactly what was to

occur on rem and. Specif

ically , we ordered that “[ i ]f Chapm an or the State can produce the record and transcript or a suf f icient equivalent, the circuit court sho u l d then consider the

m erits of Chapm an’s claim s raised in t he current m otion f or PCR b ased on that record.” Id.
But if “Chapm an or the State f ails to p r o d u c e t he record and transcript or an adequate equivalent, Chapm an m ay be entitled to a new trial.” Id. So we instructed the trial court f irst

to determ ine whether a trial record and transcript e xist a nd, if not, t hen to determ ine whether

a s u f f icient equivalent could be constructed. Id. at 1175. If neither t he record and transcript

nor an adequate equivalent could be obtained, then the trial court was to give Chapm an an opportunity

to f i le a m o tion f

or a new trial. Id. B. Proceedings on Rem a nd

5 0¶178. On rem and, th e c i r c uit court f ollowed our explicit instructions to the letter. Several

me mo r a n d a, m otions, and orders in the record m ake plain the signif icant dif f iculty experienced by

the State, the Hinds County Public Def

ender’s O f

f ice, and the circuit court in im plem enting this Court’s order to locate t he m issing record of a trial that had occurred

m ore than thirty -f

o u r y ears earlier. As sum m arized by the circuit court: Shortly af ter the rem and, the Court a nd the parties began the long and tedious task of researching and investigating to determ ine w hether or not the trial record and transcript e xisted. I n light of the f act that this m atter p roceeded to t rial in J anuary 1982, over 34 y e a r s a go, determ ining t he existence of the trial record and transcript was exceptionally challenging a s all o f the individuals involved w ith the c ase no l o n g e r w o rk f or H inds County

. Additionally , reviewing the court reporter records was painstakingly dif f i cult, as the records are m aintained in a highly unorganized f ashion in a r oom within th e H i n ds County Courthouse. The reviewing of these records was f urther com plicated by the f

act that neither the Court nor the parties were aware of the true identity o f the court r eporter in the above-sty led cause of action until May , 2016. Af t er nearly one (1) y ear of investigation into the m atter b y both the Court and the parties, Assistant District Attorney Jam i e McBride located the original reel to reel tapes which contain t he audio r e c o r d i ngs of the Def e n d a n t ’ s 1982 trial. Due to the dated nature of the t apes, t he Court was f o rced to h ave the audio f iles transf

erred t o a d igital f

orm at and t h e s o u n d quality enhanced. The a u dio recordings w ere subsequently transcribed b y a f ree l ance court reporter as the original court reporter, Nelda W oods, was unavailable to com

p lete this project. ¶179. N o w that a transcript had been discovered, transf erred to a d i g i t a l f

o r ma t , a n d transcribed, the circuit court was able to rule. Concluding that a suf f icient record had been
f ound, the circuit c ourt f

urther im plem ented this Court’s instructions by ruling on the m erits of the claim s raised in C hapm an’s PCR, beginning with his claim that he was entitled to an out-of -tim e appeal because his counsel had prom i sed to f ile an appeal, b ut h ad f

ailed to do so. The circuit court applied the rule that “[ t]o prove his right to an out-of -tim e appeal, the

5 1m ovant m

ust s how by a preponderance of the e vidence that he a sked his attorney to appeal within the tim e allowed f

or giving notice of an appeal. Moreover, the m o vant m ust show that

t h e a ttorney f

ailed to perf

e ct the appeal and that such f ailure was through no f

ault o f t h e

m ovant.” Sellers v. State , 5 2 So. 3d 426, 4 2 8 ( M i s s . Ct. App. 2011). The circuit court recognized that, if the record d o es not show that d e f e n s e c o unsel r esponded to the client’s request to appeal, an evidentiary hearing is required. See id. Chapma n c l aim ed in his PCR that, af ter his s entencing, his def ense counsel, Herm el Johnson, had stated on t he record that he intended to f

ile an app e a l

. But, the circuit court noted, the trial transcript o m itted the sentencing p roceedings, and the only ref erence to an appeal in the r ecord was a n unsigned letter to Chapm an that purported to be f r om Honorable W illiam F. Colem an, Circuit Judge,
say i ng “the Court Adm inistrator ch e c k e d with M r. J ohnson, y o ur attorney , and he advised that it was part of

the plea bargaining agreem ent on the robbery charge that y o u would not appeal the rape c harge. I have no w ay of k nowing if this is correct or not.” The circuit court f ound that this unsigned letter did not constitute adequate evidence to contradict Chapm an’s claim that Attorney Johnson had, in f act, prom ised to f

ile an appeal. B e c a u se Attorney Johnson was deceased, the ci r cuit court f ound that an e videntiary hearing w ould b e “useless.” The circuit court g rant e d Chapm an’s request f or a n out-of

-tim e appeal, dism issed the

rem aining PCR claim s as m o o t, and perm itted Chapm an to raise them in his appeal. C. This Appeal ¶180. The S tate did not appeal f rom the circuit court’s decision. I nstead, Chapm an appealed, arguing that the trial court had erred by f inding that the record was suf f i c i e n t t o enable a

5 2m eaningf

ul appeal. He argues that, because only a partial trial transcript was f ound, several of his issues still cannot b e reviewed due to m i ssing portions of t he r ecord. 17 He contends that his appellate counsel “cannot prepare his appeal with this skeletal and incom plete record.” Chapm an argues that his trial attorney ’s f ailure to f ile an appeal, resulting i n t he loss of the

en tire record and transcript of the trial, constituted inef f ective assistance of counsel, f or whi c h t h e a

ppropriate rem edy i s a new trial. The S tate asserts that t he record, though
f ragm ented, is adequate f

or m e aningf

ul appellate review, and that because Chapm an cannot d e mo n s t r ate p rejudice f

r om the f act t hat the record i s i ncom plete, his claim of inef

f ective assistance of counsel f

ails. The State does not argue that the trial court erred by granting an out-of -tim e appeal. ¶181. W i thout being asked to do so, the m a jority holds that the trial court erred in granting

an out-of -tim e appeal, resting this conclusion upon the unsigned 1983 letter, ostensibly f rom Judge Colem an to Chapm an, contained in the reconstructed record. That letter purported to inf orm Chapm an that no appeal h ad been f i led and that i f he wanted to appeal, h e had to “f ile the proper papers with the Mississippi Suprem e Court.” T he m ajority concludes t h a t t h i s letter placed Chapm a n on notice that his a p peal had n ot b een f

iled and i nf

orm ed him of the
proper rem edy , which a t that tim e would have been to f ile a petition with this C ourt. Jones

v. State , 346 So. 2 d 376, 377 (Miss. 1977). The m ajority f inds that, under t he then-newly enacted UPCCRA’s statute o f lim itations, Chapm an had until April 1987 to seek an out-of

tim e a ppeal. Curiously , the m ajority f inds t hat “the sc a nt record bef ore the Court” was at

17 H e also arg u es th at th e lif e sen ten ce, im

p o sed o n a six teen -y ear-o ld , co n stitu ted cru el an d u n u su al p u n ish m en t. 5 3f

ault f o r our not apply i ng the s tatute of lim itations in C h a p m an IV b ut doing s o now. The

m ajority also f

i nds that the Court’s concern in Chapm an IV that t he trial t ranscript had been destroy ed has been obviated by the transcript’s discovery

. ¶182. In adjudicating Cha p ma n ’ s a p p e a l , t h e ma j o r i t y c a r e ens in a direction surely unexpected by the parties a nd the circuit court by holding t hat Chapm an is not entitled to an out-of -tim e appeal. First, the i ssue was not raised by Chapm an, nor does t he State com plain about it. Second, to the extent that this C ourt m ust consider the propriety of an out-of -tim e appeal because we a l w a y s a re m indf ul of our appellate jurisdiction, we previously adjudicated in C

hapm an I V

, o n essentially the sam e f acts b ef ore us now, that Chapm a n ’ s PCR cla i m i n g t

h at he w as unconstitutionally denied an out-of -tim e appeal was excepted f rom the UPCCRA’s statute of lim itations. That holding i s the law of the case and m ust govern all
f urther proceedings in this case. ¶183. W e have held that: The doctrin e o f t he law o f the case is sim ilar to t hat of f orm er a djudication, relates entirely t o qu e s t ions of law, and is c onf ined i n its operation to subs e quent proceedings in the case. W hatever is once e s tablished as the controlling legal rule of

decision, between the sam e parties in the sam e case, continues t o be the law of the case, so long as there is a sim ilarity of f a c ts. This principle expresses the pra c t i c e of courts generally to ref use to reopen what h a s previously b een decided. It is f ounded on public policy and the interests of orderly and consistent judicial procedure.
Lee v. Thom

pson , 167 So. 3d 170, 176 (Miss. 2 014) ( quoting Sim pson v. State Farm Fire
& Cas. Co. , 564 So. 2d 1374, 1376 (Miss.1990), overruled o n o ther grounds by Upchurch
Plum bing, Inc. v. G

r e e n wood Utils. Com m ’n , 964 So. 2d 1100 (Miss. 2007)). T hus, if a second appeal involves the sam e f acts and issues as a prior appeal, the holding of the prior

5 4appeal ordinarily will control. However, if “the f acts are dif

f erent, so that the principles of law announced on the f

irst appeal are not applicable, as where there a re m a terial changes in the evidence, p leadings o r f indings,” the prio r d e c i s i o n w ill not be conclusive in a second appeal. Lee , 167 S o. 3d at 177. Another e x ception to the law of the case doctrine exists if , af ter m ature consideration, the prior decision was m a nif estly erroneous or would r esult in a grave injustice. Id. (citing J.K. v. R.K. , 30 So. 3d 290, 296 (Miss. 2009)). ¶184. Critically , in Chapm an IV , the sam e essential f

acts w ere bef

ore this Court concerning Chapm an’s discovery that no appeal f rom his 1982 conviction a nd sentence ever was f iled.
In C hapm an IV

, we acknowledged that Chapm an claim ed he had learned no appeal had been
f iled “roughly tw o y ears” af ter his conviction. Chapm an , 167 So. 3 d at 1172. W e were required to consider that allegation as true f or the purpose o f evaluating whether Chapm an had s tated a claim suf

f icient to survive dism issal o r d enial of the PCR on procedural grounds

or f or f ailure t o state a claim

. See Miss. Code Ann. § 9 9-39-11(2) (Rev. 2 015). So the f act that Chapm an had discovered that no appeal had been f i led long bef

ore f iling this PCR was squarely bef

ore the Court in Chapm an IV

. And certainly , t he UPCCRA’ s p r o v i s ion f or requesting an out-of

-tim e appeal w as known to this Court at that t im e. Thus, with knowledge of the approxim ate tim e that C hapm an discovered no appeal had been f iled and knowledge of the legislation that p u r p o r t e d to im pose a tim e lim it upon his seeking a n out-of -tim e appeal, we held that Chapm an had stated a clai m s uf f icient to surm ount the statute of lim itations

. Apply ing the l aw of the c ase doctrine t o our decision i n Chapm an I V ,

5 5Chapm an’s req u e st f or an out-of

- tim e appeal is n ot subject to the UPCCRA’s s tatute of lim itations. 18 ¶185. W h ile ignoring the l aw of the case doctrine, the m ajority s u ggests t hat the f acts have changed drastically due to the discovery of the purported letter f

rom Judge Colem an in the reconstructed record. But the late Judge Colem an’s unsigned letter f alls f ar short of being the

sm oking gun that the m ajority suggests. The circuit court decli n e d t o rely on the letter’s contents, f

inding that a n u nsigned copy of a l etter f ound in a c o urt f

ile was inadequate evidence to contradict C hapm an’s claim s. Thus, the circuit court rejected the notion that the letter rises to the l evel o f com p etent evidence that Chapm an had notice of its contents. This
C o u r t r eviews a trial court’s evidentiary rulings f or abuse of discretion. William s v. Sta t e , 54 So. 3d 212, 213 (Miss. 2011). W hile the m ajority explicitly relies on the letter and, indeed,

rests its holding upon it, the m ajority d oes not f ind that the circuit court a

bused its discretion

18 I q u estio n w h eth er th e statu te o f lim itatio n s in th e U P C C R A co n stitu tio n ally can b e ap p lied to C h a

p m a n ’ s r e q u est f

o r an o u t-o f

-tim e ap p e a l. “T h e in h eren t p o w er o f th is C o u rt to p ro m

u lg ate p ro ced u ral r

u les em an ates f

ro m th e f u n d am en tal co n stitu tio n a l co n cep t o f th e sep aratio n o f p o w ers an d th e v estin g o f j u d icial p o w ers i n th e co u r ts.” N ew ell v. S ta te , 3 0 8 S o . 2 d 7 1 , 7 6 (M iss. 1 9 7 5 ). T h e “‘j u d icial p o w er’

. . . i n clu d es th e p o w er to m ak e ru les o f p ractice an d p ro ce d

ur e , n o t i n co n sisten t w ith t h e C o n stitu tio n , f o r t h e ef f icien t d isp o sitio n o f j u d icial b u sin ess.” Id

. M ississip p i R u le o f A p p ellate P r o ced u r e 4 (a) p rescrib es a th irty

d ay tim e lim it f

o r p erf ectin g a n ap p eal, w h ich m ay b e ex ten d ed b y t h e trial co u rt as p ro v id ed in R u le 4 (g )

. M .R .A .P

. 4 (a); 4 ( g ). R u le 2 (c) p ro v id es th at “in t h e in tere s t o f ex p ed itin g d ecisio n , o r f

o r o th er g o o d cau se sh o w n ,” e i t h e r a p p ellate co u rt m ay su sp en d th e req u irem en ts o f th e ru les an d e x t e n d th e tim e f o r tak in g an ap p eal in crim in al an d p o stco n v ictio n c ases. M .R .A .P

. 2 (c ). T h e tim e f o r tak in g an ap p e a l in a crim in al case is a p ro ced u ral m atter g o v ern ed b y th e M ississip p i R u les o f A p p ellate P ro ced u re, w h ich im p o se n o tim e l im it o n th is C o u rt’s ab i lity to su sp en d t h e ru les to allo w an o u t -o f -tim e ap p eal. T h e co m m en t to R u l e 2 r e c o g n i zes th at R u les 4 (g ) an d 2 (c) “su p p lan t th e p ro ced u re [ f o r req u estin g an o u t-o f

-tim e ap p e al] d e scrib ed in J o n e s v. S t a te , 3 5 5 S o . 2 d 8 9 , 9 0 (M iss. 1 9 7 8 ).”

5 6by holding that the letter w as inadequate evidence of notice. To the contrary , the f acts clearly support the c i r c uit court’s f inding that the letter should not and cannot be relied upon as conclusive notice to Chapm a n. The l etter is unsigned. T here i s no proof it ever was seen by Judge Colem an or received by Chapm an, as the m ajority is w illing to assum e. Just as easily ,

one could assum e that the letter was p r e p a r e d b y t h e judge or a m em b er of his staf

f and placed in the court f

ile, but never signed or sent. T he realm of possibi l i t i e s i s vast. These def iciencies f

irm ly support the circuit court’s f inding that the letter was inadequate to im pute notice o f its c o n t e n t s t o Chapm an. And, a s discussed in t he preceding p aragraph, even if Chapm an had received the letter, its receipt by him would not approach m aterial alteration of the f acts that were bef

ore the Court in Chapm an IV

. ¶186. Further, the m ajority places great stock in its conclusion that the reconstructed record establishes a s truth J ustice Josiah D. Colem an’s suppositions in his dissent in Chapm an I V

. But , i n r eality , i t changes nothing. Justice C olem a n’s position in Chapm an I V , that, m ost likely , the trial proceedings h ad not been transcribed because no appeal had b een f iled, was f ully recognized as a possibility by the Court in Chapm a n I V

. But the Court d id not hold that

an out-of -tim e appeal would be f

oreclosed if it should be discovered that there was no trial transcript because def

ense counsel had not appealed. Rather, we f ound that “[ t]his lack o f a record, which C hapm an a ttributes to the trial court and to his attorney’s a lleged f ailure to file his appeal , ef

f ectively denied Chapm an his right to an appeal . .

. .” Chapm a n I V , 167 So. 3d a t 1 173 (em

p h asis added). W e held that, if the record and transcript or an adequate equivalent were discovered on rem and, the trial court should r ule on t he m erits of Chapm an’s

5 7post-convicti o n claim s. W e did not hold that, if the r ecord and transcript o r adequate

equivalent were discovered on rem and, Chapm an would be d isqualif ied f rom an out-of

-tim e appeal, as the m ajority now holds on the strength of an unsigned, perhaps unsent, letter that contains its own disclaim er. ¶187. Because the s a m e m aterial f acts were bef

ore the Court in Chapm an IV a s are bef ore

us today , the m ajority ’s decision results in a sham ef ul waste of judicial resources. This Court ordered a f

oreseeably l aborious undertaking in Chapm an IV

. That u n d e r taking, now

com plete but only partially successf ul, has b een m ooted by this Court’s rejection of its own reasoning in Chapm an IV

. I f the m ajority ’s current reasoning had been applied to the f acts in Chapm an IV

, we would not h ave ordered the parties and circuit c o urt to expend tim e,

m oney , and ef

f ort on r em a nd in an e x h austive search f o r the r ecord. R ather, because the
Court i n Chapm an I V was well aware that Chapm an had learned two y ears af ter his conviction that no appeal had been f iled and that his request f or an out-of

-tim e appeal was statutorily tim e barred, under the m ajority ’s current r easoning, we should have af f irm ed the denial of post-conviction relief

at that tim e, as Justice Colem an advocated in his dissent. ¶188. Because the m a terial f acts have not c hanged s i n c e o u r r e ma n d in Chapm an IV , Chapm an’s claim that his f undam ental constitutional right t o an appeal was violated is as viable today as it was i n Chapm an IV

. I woul d a f

f i r m t h e circuit c ourt’s f

inding that Chapm an is entitled to an out-of -tim e appeal. C hapm an say s, without contradiction, that he paid his def

ense counsel, Herm el Johnson, t o f ile an appeal o n his behalf

. C learly , Johnson did not d o so. Chapm an avers that, af ter the sentencing hearing, Johnson said on the record

5 8t h a t h e w ould appeal; however, the sentencing h earing is m issing f rom the r econstruct e d record, and Johnson has died. The circuit c ourt f ound t hat, b ecause the record did not contain adequate evidence to contradict Chapm an’s claim s and an evidentiary hearing would be useless, his request f

or an o u t-of

-tim e appeal should be g ranted. On r e v iew of the grant or denial of p ost-conviction r elief , this Court wi l l a f

f irm the trial court’s f

a ct f indings unless they are clearly

erroneous. Chase v. State , 171 So. 3d 463, 479 (Miss. 2015). ¶189. A petitioner seeking an out-of

- t i me a p p e a l mu s t p r o v e f o u r e l e me n t s b y a preponderance of the evidence: (1) within the t im e allowed f or giving n otice of

appeal, (2) he asked h is attorney t o appeal, (3) the attorney f ailed to perf

e c t the app e a l , a n d (4) the
f ailure to appeal was through no f ault of the petitioner. Minnifield v. S tate , 585 S o. 2d 723,
724 (Miss. 1991). Chapm a n avers that, within the tim e f or giving notice of appeal, he told his attorney he wished to appeal. And it is a certainty that A ttorney Johnson never perf ected

an appe a l. Nothing in the record shows that Chapm an did any thing to prevent Attorney Johnson f rom appealing. The purported letter f rom Judge C o lem a n states that “the Court Adm inistrator checked w ith Mr. Johnson, y our a t torney , and he advised that it was p a r t of the plea bargaining agreem ent on the r obbery charge that y o u would no t a p p e a l t he rape charge. I h ave no w ay of knowing if this is correct or not.” This quotation c onsists of triple hearsay in an unsigned letter, a nd the circuit court did not abuse its discretion b y f inding that it was i nadequate to contradict Chapm an’s claim t hat he had relied on Herm el Johnson to f ile his appeal. The c ircuit c ourt recognized that, due to the m i ssing record and the passing of Mr.
J o h n s o n , C h a

p m an w as unable to p rove his a ssertions; but, nevertheless, not h i n g c o n t r a d i c t e d

5 9them and his request f or an out-of

-tim e appeal s hould b e granted. This ruling by the circuit

court was appropriate, given our directive in Chapm an IV that a record or its equivalent be produced to give Chapm a n the opportunity to prove his claim s or he m ust be given leave to seek a new trial. ¶190. Finally , I note that the conduct of Attorney J ohnson i n other cases lends c redibility to Chapm an’s assertions. This lawy e r h a d a history , previously recognized b y t his Court, of taking pay

m ents f or legal w ork and never perf orm i ng, and his m iscon d u c t h a s b e en the subject of num erous d isciplinary proceedings bef ore us. In 1983, t he Court issued a private reprim and upon a f

inding that Attorney Johnson had neglected his duties to a client i n a crim inal case. In 1986, this Court f ound that in 1982, the y e a r of C hapm an’s trial, Attorney Johnson had represented the wif e in a divorce proceeding, but negligently had f ailed to obtain entry o f a divorce decree f r om the chancery court; the om ission went undiscovered f or two
y ears. For that m i sconduct, this Court issued a public reprim and. Attorney J o h n son was dis b a rred in 1987. I n that instance, h e had undertaken the representation of two crim inal def endants at a tim e when he was suspended f r om the practice of law. Further, af ter Johnson had f ailed to appear f

or appointm ents, one of the clients r equested a r e f u n d , a n d Johnson
gave her a “ref

und” check drawn o n a closed account. I n the order of d isbarm ent, the Court recited the entirety of

Attorney Johnson’s prior disciplinary history : (1) a Public R eprim and in F ebruary , 1977; (2) a ninety (90) day suspension in July , 1983; (3) a Private Reprim and in O ctober, 1983; (4) a Public Reprim and in April, 1984; ( 5) a Publi c R e p r i m and in July , 1 984; and (6) a Public Reprim and i n May , 1986. T h e n i n ety (90) day suspension in July , 1983, the Public Reprim and in April, 1 9 8 4, a nd the Public Reprim and in J uly , 1984,

6 0were based in part on f indings by the Court that R e s p o n d e n t had e ngaged in conduct involving dishonesty , f raud, deceit or m isrepresentation.
Miss. State Bar v. Johnson , C o n f i dential Misc. No. 250 (Oct. 30, 1987). Johnson was disbarred again in 1 9 90 f o r conduct that had occurred in 1985. This tim e, he had been retained by a crim inal d e f e n d a n t who pled guilty and was given a s uspended sentence and

a $6,000 f ine. He told the client to pay him the m o ney f o r the f ine in i nstallm ents and that he would deliver the m oney to the clerk of court. But instead of delivering these f unds to the clerk of court as prom ised, Attorney Johnson converted them

to his own use. ¶191. Johnson’s m isconduct in t h e c a s e of Percy Dixon v. State , 519 So. 2d 1226 (Miss. 1988), was s trikingly sim ilar t o that alleged by Chapm a n. D i x on was convicted of rape on March 31, 1977. Af

ter the verdict, Dixon requested that Johnson appeal, and h e reaf f irm ed that request at the sentencing hearing on Septem b er 7, 1977. A ttorney Johnson cha r g e d Dixon a $1,000 f

ee f or f iling the appeal. He f

i led a petition f

or bail on Dixon’s behalf and
f i led a notice to the court reporter to transcribe the record, but took no f u rther acti o n t o perf ect the appeal. On July 30, 1982, Dixon discovered that no appeal had been f iled. In July 1983, this Court suspended Johnson f rom the p ractice of law f o r n i n e t y day s f

or that

m isconduct. ¶192. In contrast to toda y ’ s c a s e , this Court granted Dixon’s m otion f or an out-of

-tim e appeal f r om his nine-y ear-old rape conviction. Dixon v . State , No. 56, 765 (Miss. 1 986). W e recognized Attorney Johnson’s m isconduct and perm itted t he appeal to proceed, on the
g r o u n d t h at: “[ s]uf

f ice it to say that since 1 977 Dixon has struggled to perf ect and pres e n t
to this C ourt a direct a

pp e al f rom his conviction and sentence. H owever, Dixon has been

6 1i n c a r c e r a ted a nd his f a ilure to perf

ect a n appeal has been substantially without f ault of his
own.” Id. ¶193. I h ave explained why the circuit c o u r t ’ s g r a n t of an out-of -tim e appeal should be af f irm ed. But in addition I n o t e t hat our precedent in Dixon lends f urther support to the concl u s i on that Chapm an, represented by the sam e attorney as Dixon in the sam e ty pe of

case, with the sam e claim – that the attorney prom ised to a ppeal but did not – in all f airness is entitled to an o ut-of

-tim e appeal. And this Court is f u lly capable of t aking judicial notice of the ey e-opening pattern of e thical m isconduct by Herm el Johnson that is spread across the

r e cords of our Bar disciplinary p roceedings and lends f urther credibility to Chapm a n ’ s allegation of

sim ilar m isconduct in his case. ¶194. As we reaf

f i rm ed in Chapm an IV

, a crim inal d ef

endant h a s a n a b s o l u t e r i g h t to appeal his conviction. Chapm an IV , 167 So. 3d at 1173. And our law does not leave a newly convicted crim i nal def

end a n t to his or her own devices in f iling an appeal. Rather, all crim inal def

endants are e ntitled to the ef f ective assistance o f counsel to f ile a direct appeal.
Jones v. State , 3 55 So. 2d 89, 91 (Miss. 1978). Chapm a n, through no f ault o f h is own, was denied t hat right, but has y et to be af f ord e d a n appeal f

rom his 1982 conviction. The

c o n s t i tutional dif

f iculties presented by his situation were r eviewed m eticulous l y b y t h i s C o u r t in C hapm an I V

, a nd the pertinent f

acts did n ot change m aterially on rem and. I would not disturb the trial court’s grant of an out-of -tim e appeal. I nstead, I w ould review Chapm an’s
argum ent that the reconstructed record is insuf f icient to af

f ord m eaningf

ul appellate review. II. The reconstructed record is insufficient to enable a meaningful appeal.

6 2¶195. The m ajority f inds that, even if it w ere to allow Chapm an an out-of -tim e appeal, the reconstructed record is adequate t o enable m eaningf ul appellate review of his claim s. Then, the m ajority analy

zes the i ssues raised in Chapm an’s PCR and f inds t hat the reconstructed record shows those claim s t o be without m erit. The m ajority m i sunderstands the nature of the relief ordered by the circuit court, which granted Chapm an’ s P C R in p art b y granting
perm iss i o n fo r an o ut-of

-tim e a ppeal. As with any direct appeal, that r uling allowed Chapm an
to f ile an appeal f

rom his 1982 c onviction raising direct appeal issues. The grant of a direct appeal did not lim it Chapm a n t o the issues raised on post-conviction relief , but p erm itted h im

to proceed with a direct appeal just as i f there had been no delay between trial and appeal. The trial court dism issed the PCR issues as m oot in light of t he grant of Chapm an’s request f or an out-of

-tim e appeal. But Chapm a n’s decision to a ppeal f rom the c ircuit court’s ruling has y i elded an appellate decision f oreclosing an out-of

- tim e appeal altogether. ¶196. The m ajority e rrs by evaluating Chapm an’s PCR issues to f i n d that an out-of

-tim e appeal would h ave n o m erit. W e cannot, at this p oint, know e xactly what i s s u e s C h a p ma n would h ave raised in a direct a ppeal, although his brief

, the m otion f

o r a new trial f

iled by
H e r mel Johnson, and Chapm an’s PCR issues do provide som e insight into what he m i g h t have raised. In his brief

, Chapm an avers that the two m ain issues he would have raised are discrim inatory

jury selection and sentencing. ¶197. I a g r e e w i t h C h a p man that the reconstructed record is insuf f i c i e n t t o p e r mi t

m eaningf ul appellate r evie w . I n W a t ts v. S tate , 7 17 So. 2 d 314, 3 16 (Miss. 1998), the appellant a rgued that his right to m eaningf ul appellate review had b een violated by the lack

6 3of a f

ull and com

plete trial transcript. Missing p ortions included voir dire , closing argum ents, and part of the d ef

endant’s testim ony . Id. The Court applied the test f r om United States v. Renton , 7 00 F.2d 154 (5th Cir.1983). Watts , 717 So. 2d at 318. U nder that test, a n appellant represented by the sam e lawy e r on appeal as at trial m u st show specif

ic prejudice f

rom the lack of a f ull record of the trial proceedings. Id. (quoting Renton , 700 F.2d at 157). But an appellant r epresented by new appellate counsel can s ecure reversal based o n the absence of

a “ s ubstantial and signif

icant portion of the record.” Id. ( quoting Renton , 700 F.2d at 157).
Because W atts was r epresented by the sam e counsel on appeal a s at trial, t he C ourt f ound that he was required to show specif ic prejudice f

rom the m issing p ortions of the record. Id. And because W atts raised no errors related to the m issing portions of the record, the Court held that he had suf

f e red no prejudice and there was no reversible error. Id. ¶198. As in Watts , the record in this case is i ncom plete. But unlike in Watts , Chapm an now is represented by new appellate counsel. Although t he transcript of the voir dire in Watts was

m is s i n g , this Court f

ound no error because W atts did not raise any issues concerning voir dire

. As in Watts , the transcript of voir d ire is m issing, but h ere Chapm an avers that he plans

t o raise discrim inatory jury selection as an i ssue on d irect appeal, and he c onsist e n t l y h a s raised that issue throughout the post-conviction litigation. Chapm an, an Af rican-Am erican

m an, claim s discrim ination in jury selection because h e was tried f or the crim e of

raping a white wom an by

an all-white f

em ale jury

. ¶199. The m ajority f

inds it n eeds no r ecord to review this claim because Chapm an does not aver that his trial counsel raised a violation of the then-applicable law, Swain v. Alabam a ,

6 4380 U .S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 2 59 ( 1965), and Chapm an does not describe how

the trial court violated statutory law f or selecting j urors. W ith respect, in the a b sence of any record o f the voir dire p roceedings, there is no record f rom which Chapm an’s new appellate

c o unsel could e valuate what def ense counsel or the trial judge did during voir d i r e

exam ination or how the j ury was s e lected. And t he j ury ’s com position rem ains unknown. Despite the m ajority ’s s peculation that som e m e n were on the jury , it is equally likely that the trial court’s ref

erence to “ladies and gentlem en” r ef erred to the jurors who tried the case or
to those jurors plus the alternate jurors whom , I m ust presum e f

rom the incom

plete record,

were dism issed bef

o re deliberations began. W ithout the voir d ire transcript, n either we nor Chapm an’s present-day counsel c an kno w w h a t o ccurred during voir dire , including what objections were m ade or how the trial court ruled on a ny issues that arose. B ecause no record

or equivalent has been pr o d u c e d, m eaningf ul appellate review of this issue is im possible. Based upon Chapm an IV , this f act alone should entitle Chapm an to a new trial. ¶200. Many of Chapm an’s o ther likely appellate issues also are not am enable to review in light o f t he i ncom

p l ete record. In his m otion f or a new trial, Chapm an raised a c hallenge to the weight o f the evidence, a claim t hat requires a r eviewing court to consider all of the evidence to determ ine w h e t h e r the verdict was against the overwhelm i ng w eight of the evidence. Swanagan v. State , 229 So. 3d 698, 705 (Miss. 2017). But, as Chapm an points out,

som e of t he testim ony o n the reel-to-reel tapes was inaudible and could not be transcribed. His new trial m otion also com plained of the denial of seven o f his prof f ered j ury instructions. Althou g h t

h e j u r y i nstruction conf

e rence was transcribed, it is riddled with o m i ssions deem ed

6 5“inaudible.” And the jury instructions them selves do not appear in the reconstructed record.

Chapm an also argued that the trial court a llowed the v ictim t o testif y t hat t he perpetrator of the rape had robbed her despit e t h e g r ant of a m otion in limine prohibiting that very testim o ny . Neither the m otion in limine nor the trial judge’s ruling thereon is in the record. Also in the new trial m otion, Chapm an a r g u ed, a n d h e has expressed an i ntent to argue on appeal, that his lif

e sentence c o n s t ituted cruel a nd unusual punishm ent. If Chapm an’s sentencing proceeding had been included i n the record, we c ould discern whether h i s attorney raised this argum ent at sentencing, and, if so, how the trial court responded. III. Conclusion ¶201. Due to the def

ense lawy er’s inef

f ectiveness in neglecting to f ile Chapm an’s appeal, Chapm an, then a m inor, was lef t wit h o u t the assistance of c o unsel to n avigate the legal
sy stem on his own. In Chapm an IV , this C ourt recognized the im p i n g e m ent of his constit u t i onal right to a m eaningf ul appeal and ordered reconstruction of the record or its equivalent. T hat being done, the circuit court granted an o ut-of -tim e appeal. The im

pact of the m ajority ’s holding i s that the conside r a b l e e f f o r ts on rem a nd were f

or naught and Chapm an’s right to appeal is tram pled. I would n o t d i s t u r

b the circuit court’s f

inding that Chapm an was entitled to an o ut-of -tim e a p peal. But because the reco n s t ructed record is inadequate to enable m e a ningf ul appellate review, I would hold that, in the interests of justice, a new trial is required. KING, J., JOINS THIS OPINION.

6 6