IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-DR-01280-SCT

MACK C. WELLS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:

DATE PCR FILED: 09/28/1995

09/03/1998

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION

COUNSEL

BY: DAVID VOISIN

ROBERT M. RYAN

STACY PREWITT

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: MARVIN L. WHITE, JR.

DISTRICT ATTORNEY: KEN TURNER

NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST

CONVICTION

DISPOSITION: A PPLICATION FOR LEAVE TO PROCEED IN

TRIAL COURT FOR POST-CONVICTION

RELIEF, DENIED - 06/09/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

CARLSON, JUSTICE, FOR THE COURT:

¶1. A Scott County grand jury indicted Mack C. Wells for the capital murder o f his thirteenyear-old stepson, Gary “Man” Wells. After a change of venue to Leake County, Wells was

tried and convicted of the crime of capital murder. At the conclusion of the sentencing phase,2

the same circuit cou

rt jury found that Wells should receive the death penalty. In due course,

the presiding judge, Honorable Marcus D. Gordon, entered judgment co nsistent with the jury

verdic t and set a date for Wells’s execution by lethal injection. Pursuant to Miss. Code Ann.

§ 99-19-105, Wells’s sentence was stayed pending review by this Court. In due course,

Wells’s conviction and sentence were affirmed on direct appeal. W ells v. State

, 698 So.2d

497 (Miss. 1997). Wells’s motion for rehearing was denied. Wells v. State

, 700 So.2d 331

(Miss. 1997). Wells’s petition for writ of certiorari was denied by the United States Supreme

Court. Wells v. Mississippi , 522 U.S. 1122, 118 S.Ct. 1065, 140 L.Ed.2d 125 (1998).

¶2. Wells then sought federal habeas corpus relief in the federal district court. The United

States Dis trict Court for the Southern District of Mississippi granted a stay of execution and

provided Wells additional time to file his federal petition for writ of habeas corpus. W ells v.

Anderson

, No. 3:98-cv-174G R (S.D. Miss.). However, Wells chose instead to file with us an

application for leave to p roceed in the trial court via a filing of a motion for post-conviction

relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code

Ann. §§ 99-39-1, et seq. In his PCR motion, Wells claimed his trial and appellate counsel

rendered ineffective assistance thus requiring the vacation of his death sentence and a new

sentencing hearing. We eventually allowed a substitution of counsel, and the Office of Capital

Post-Conviction Counsel (OCPCC) commenced representation of Wells.

¶3. Ant icipating that the United States Supreme Court would be deciding a case that might

determine whether Wells received post-conviction relief, we stayed the post-conviction3

proceedings. On June 20, 2002, the United States Supreme Court decided A tkins v. Virginia

,

536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). A tkins he ld that the death penalty was

no longer constitut ional as applied to an entire class of prisoners, namely, those who were

deemed to be mentally retarded, using an Intell igence Quotient of 70 as the standard. Pursuant

to Atkins

, Wells fil

ed a supplemental application which asserted that Wells was mentally

retarded and therefore ineligible for the death penalty. In light of A tkins

, we entered an en

banc order

remanding the case to the trial court for the limited purpose of “obtaining an

evaluation of Wells’s mental capacity and conducting an evidentiary hearing to determine

whether Wells is mentally retarded” as envisioned in A tkins

. Upon remand, Judge Gordon

conducted an evident iary hearing and determined that Wells met the A tkins standard for mental

r etardation. Accordingly, Judge Gordon vacated Wells’s sentence of death and resentenced

Wells to a term of life imprisonment in the custody of the Mississippi Department of

Corrections without the benefit of parole.

¶4. Inasmuch as the original application for pos t-conviction relief remains before us as an

open motion, it requ

ires a final disposition. For the reasons discussed below, we find Wells’s

application for post-conviction relief to be without merit.

ANALYSIS4

¶5. Of course, we review any claim of ineffect ive assistance of counsel by applying the

familiar test set out in Strickland v. Washington

, 466 U.S. 668, 1 04 S.Ct. 2052, 80 L.Ed.2d

674 (1984). The standard for determining if a defendant received effective assistance of

counsel has often been noted by this Court. “The benchmark for judging any claim of

ineffectiveness [of co unsel] must be whether counsel's conduct so undermined the proper

functioning of the adversarial pro cess that the trial cannot be relied on as having produced a

just result.” 466 U.S. at 686, 104 S.Ct. at 2064. A defendant must demonstrate that his

attorney’s actions were deficient a nd that the deficiency prejudiced the defense of the case.

Id

. at 687. “Unless a defendant makes both showings, it cannot be said that the conviction or

death sentence resulted from a breakdo wn in the adversary process that renders the result

unreliable .” S tringer v. State

, 454 So.2d 468, 477 (Miss. 1984) (citing Strickland v.

Washington

, 466 U.S. at 687, 104 S.Ct. at 2064).

¶6. In his original

PCR motion, Wells alleged that he had received ineffective assistance

of counsel at his original trial and on direct appeal to this Court. Wells’s consternation was

that his lawyers on direct appeal to this Court were the same lawyers he had at trial, and that

although Wells opined that he had received ineffective assistance from these law yers both at

trial and on appeal, he could hardly expect his lawyers to raise the ineffective assistance claim

“against themselves.”

A close reading of the original application reveals that Wells’s concern

about his lawyers’ ineffectiveness o ccurred at the s entencing phase of his trial, when his5

lawyers failed to object to the following comments by the prosecutor during closing

arguments:

The Defendant is already serving life without pa role for his aggravated assault.

You know, to give him anything less than the death p enalty would be like not

giving him any punishment at all. He has already got what the defense is asking

you to give him, no punishment at all for the brutal murder of Gary Wells.

Wells

, 698 So.2d at 514. Admittedly, there was no objection by defense counsel to these

statements by the prosecutor. On direct appeal, we addressed this assignment of error as

follows:

Wells contends that this argument wa s improper and constitutes reversible error

under Hartfield v. State , 186 Miss. 75, 89-91, 189 So. 530, 532-34 (1939).

A review of the record reveals no objection wa s raised to these comments at

trial and it is raised for the first time on this appeal. Any claim is waived for

failure to raise a contemporaneous objection. B all enger v. State , 667 So.2d

1242, 1272 (Miss. 1995), cert. d enied , ___ U.S.___, 116 S.Ct. 2565, 135

L.Ed.2d 1082 (1996); D avis v. State

, 660 So.2d 1228, 1245 (Miss. 1995), cert.

denied

,

___ U.S.___, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996); C hase v. State

,

645 So.2d 829, 854 (Miss. 1994), cert. denied

, 51 5 U.S. 1123, 115 S.Ct. 2279,

132 L.Ed.2d 282 (1995); Hansen v. State

, 592 So.2d 114, 139-40 (Miss.

1991), cert. denied

, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992).

Accordingly, Wells is procedurally barred from raising this issue for the first

time on appeal.

Finding no reversible e rror among Wells’ allegations of improper closing

arguments by the prosecution, we find that this assignment of error must fail.

698 So. 2d at 514.

¶7. Th

e same issue before us today was addressed by us on direct appeal and found to be

proce durally barred and not reversible error. Thus, we are not required to consider this issue

via a PCR motion simply because Wells has now couched this issue as a claim of ineffective6

assistance of counsel. However, alternatively, we can state with confidence that even when

considering this issue today on its merits, Wells’s assertion still fails. We must remember

that when the pros ecutor made these perceived erroneous closing remarks to the jury during

the sentencing phase of the trial, there was quite a ppropriately before the jury evidence of

Wells’s prio r conviction and sentence for aggravated assault. Indeed, this is one of the

statutory aggravating circumstances which a capital sent encing jury may be appropriately

instructed to consider. Miss. Code Ann. § 99-19-101(5)(b) (“defendant was previously

convicted of anoth

er capital offense or of a felony involving the use or threat of violence to

the person”). What we stated in Wells’s direct appeal in addressing the claim of im proper

clos ing argument during the guilt phase, also holds true when addressing the claim of improper

prosecutorial closing argument in the sentencing phase:

Counsel is allowed considerable latitude in the argument of cases, and is limited

not on ly to the facts presented in evidence, but also to deductions and

conclusions he may reasonably draw therefrom, and th e application of the law

to the facts. I

vy v. State

, 589 So.2d 1263, 1266 (Miss. 1991); D avis v. State

,

530 So.2d 694, 701-02 (Miss. 1988). “He may draw whatever deductions seem

to him proper fro m these facts, so long as he does not use violent and abusive

language, and even in many cases invectives may be justif ied and even called

for....” S hell v. Stat e , 554 So.2d 887, 900 (Miss. 1989) (quoting N elms &

Blum Co. v. Fink

, 159 Miss. 372, 131 So. 8 1 7 (1930)), rev’d on other

grounds , 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990).

698 So. 2d at 506.

¶8. Thus, in today’s case, in considering the prosecutor’s comments in the context in which

they were made, the prosecutor was sim ply applying his “deductions and conclusions”

reasonably drawn from the evidence in bas ically arguing to the jury that to give a man a second7

life without parole sentence is not punishing him at all for the separate crime of killing his

stepson. We find no error in such argument.

¶9. Additionally, Wells’s re liance on this Court’s decision in H artfield v. State

, 186 Miss.

75, 189 So. 530 (1939), is misplaced. In H artfiel d, the defendant was a trusty serving life

imprisonment in the stat e penitentiary when he made an a uthorized trip from Parchman to

Jackson, but took unauthorized liberties by going out to a bar, consuming a large quantity of

alcohol, and killing a bar patron. During the closing argument at Hartfield’s murder trial, the

prosecutor informed th

e jury that it should consider neither a manslaughter verdict nor a life

sentence, but instead, the jury should consider only the death sent ence since punishment less

than death wou

ld mean nothing since Hartfield was already serving a life sentence at the time

he committed the killing. H ar tfield is factually dissimilar for several reasons. First of all,

we must remember that under then-exist i ng law, Hartfield’s trial was not bifurcated. In

Hartfield’s tri

al, when the jury retired to deliberate, it considered both the issue of guilt and

the appropriate sentence. Also, the trial judge had erroneously allowed into evidence through

the State’s questioning of a witness the following: “Q. You never knew [Hartfield]

at all, except as a convict in the sta te penitentiary, who was committed there for life, did you?

A. No, sir.” 189 So. at 534. Additionally, the prosecutor took this erroneously admitted

evidence to bolster his closing argumen ts to the jury. Finally, the prosecutor, by his closing

arguments to t

he jury, in essence told the jury to not even consider the manslaughter option

because such a verdict would result in a sentence less than death. I d. In other words, the8

prosecutor inapp ropriately told the jury to fast-forward past deliberating on the issue of guilt

or innocence as to manslaughter or murder and jump straight to the i mposition of the death

penalty. In reversing Hartfield’s conviction of murder and sentence of death and remanding

the case to the trial court for a new trial, this Court stated:

It will be observed from the language used by th e prosecuting attorney, that his

statement was not limited merely to the p unishment in the event the jury should

find the defendant guilt y of murder. It advised the jury that neither a

manslaughter v

erdict, nor a life sentence, should be returned. His statement

presupposed that the jury might believe the defendant only guilty of

m anslaughter, and then cautioned the jurors in effect that even th ough they

should so believe, it would be useless to return that verdict, or any other verdict

less than the death penalty. To advise the jury, with the approval of the court as

being within the propri

eties, that a verdict of manslaughter or a life sentence

would be equivalent to no punishment at all could have no other possible effect

than to inform the juror s that it was immaterial whether they believed the

defendant guilt

y of manslaughter or murder, since the proper and only

punishment in either event was asserted to be the death penalty.

Id. at 532-33.

¶10. T o inform the jury during closing arguments that the only proper punishment was death,

even if the jury believed the defendant to be guilty of m anslaughter, is a far cry from what the

prosecutor told the jury at Wells ’s trial. At the time that the jury heard the prosecutor’s

comments about which Wells complains, the jury (1) had already found Well s guilty of capital

murder, (2) had already been p roperly informed of Wells’s previously imposed life sentence,

(3) had already heard argument from defense counsel on this point, and (4) had already been

appropriately instructed by the trial judge to consider, inter al ia, the character and record of

W ells in deciding the appropriate sentence. This is all part of our statutory scheme in

bifurcated death penalty trials. Miss. Code Ann. §§ 99-19-101 et seq.9

¶11. Wells would have us pluck from the voluminous re cord before us defense counsel’s

failure to object to what we have now deemed to be not inappropriate comments by the

pro secutor in closing arguments during the sentencing phase of trial and find his trial counsel

to be Strickland ineffective. The entire record in this case reveals that Wells’s trial counsel

submitted file d and ore tenus motions, cross-examined witnesses, and indeed made numerous

objections. We refuse to find ineffectiveness on such a claim as the one before us today.

There can be no doubt that Wells has fallen far short in demonstrating that his trial counsel’s

actions were deficient and tha t the deficiency prejudiced his defense. S trickland

, 466 U.S.

at 687. See also Stringer v. State , 454 So.2d at 477.

CONCLUSION

¶12. Mack C. Wells confessed to the br utal murder of his thirteen-year-old stepson. His

capital murder co nviction and death sentence were reviewed by this Court, the United States

Supreme Court, and the United States Distri ct Court for the Southern District of Mississippi.

Upon an Atkins remand by order of this Court to the trial cour t, Judge Marcus Gordon

conscientiously

performed his responsibilities and, upon the State’s motion to vacate the death

sentence, entered an order vacating Wells’s death sentence and resentencing Wells to a term

of life imprisonment in the custody of the Mississippi Department of Corrections without the

benefit of parole. We have now considered the remaining issues contained in Wells’s original

PCR motion and, for the reasons stated, we find them to be without merit. We thus deny

Wells’s application for post-conviction relief.10

¶13. APPLICATION FOR LEAVE TO PROCEED IN T RIAL COURT FOR POSTCONVICTION RELIEF, DENIED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND

RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.