IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-DR-00912-SCT

STEVE KNOX a/k/a STEVE MICHAEL KNOX

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/29/1999

TRIAL JUDGE: HON. FORREST A. JOHNSON, JR.

COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION

COUNSEL

BY: ROBERT M. RYAN

LOUWLYNN VANZETTA WILLIAMS

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:

MARVIN L. WHITE, JR.

DISTRICT ATTORNEY: RONNIE HARPER

NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST

CONVICTION RELIEF

DISPOSITION: LEAVE TO SEEK POST-CONVICTION RELIEF

DENIED - 03/24/2005

MOTION FOR REHEARING FILED: 04/21/2005; DENIED AND OPINION

CLARIFIED AT ¶¶ 50, 51 & 59 - 06/02/2005

MANDATE ISSUED:

EN BANC.

SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1. Steve Knox was convicted of capital murder and sentenced to deat h for the murder

of

Ella Mae Spear s. On direct appeal this Court considered three issues, found those issues to

be without merit and affirmed Knox's conviction and death senten ce. See Knox v. State , 805

So.2d 527 (Miss . 2002), c ert. denied

, 536 U.S. 965, 122 S.Ct. 2677, 153 L.Ed.2d 842 (2002).2

¶2. Knox subsequently filed his Petition for Post-Conviction Relief and

Supplement/Amendment to Petition for Post-Conviction Relief with t his Court. The State has

filed its Response, and Knox has filed his Rebuttal. Knox raises the following contentions in

his Petition for Post-Conviction Relief:

I. THE TRIAL COURT’S LIMITING INSTRUCTIONS ON THE

STATUTORY AGGRAVATOR ESPECIALLY HEINOUS,

ATROCIOUS AND CRUEL WAS NOT SUPPORTED BY THE

EVIDENCE ADDUCED AT TRIAL AND FURTHER, THE

INSTRUCTION WAS CONSTITUTIONALLY INFIRM IN T HAT IT

WAS VAGUE AND OVERBROAD.

II. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

THE EFFECTIVE ASSISTANCE O F COUNSEL WITHIN THE

MEANING OF STRICKLAND v. WASHINGTON

.

III. T H E TRIAL COURT SHOULD HAVE DIRECTED A VERDICT IN

FAVOR OF KNOX ON THE CHARGE OF CA PITAL MURDER AT

T HE CLOSE OF THE STATE’S CASE-IN-CHIEF AND AFTER THE

STATE FINALLY RESTED IN THE GUILT-INNOCENCE PHASE

OF THE TRIAL AS THE EVIDENCE WAS INSUFFICIENT TO

SUSTAIN A VERDICT OF GUILTY TO THE UNDERLYING

FELONY OF ROBBERY.

IV. MISSISSIPPI’S DEATH PENALTY STATUTES ARE

UNCONSTITUTIONAL AS APPLIED TO THE PETITIONER AND

AS A RESULT, HIS EIGHTH AMENDMENT RIGHTS UNDER THE

UNITED STATES CONSTITUTION AND THE CORRES P ONDING

PORTIONS OF THE MISSISSIP PI CONSTITUTION WERE

VIOLATED.

V. THE SENTENCE RE N DERED AGAINST PETITIONER STEVE

KNOX IS DISPROPORTIONATE IN VIOLATION OF THE

EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND THE CORRESPONDING

PORTIONS OF THE MISSISSIPPI CONSTITUTION.

VI. PETITIONER WAS DENIED HIS RIGHTS GUARANTEED BY THE

FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE

TO THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL TRIAL.3

¶3. Knox also raises the following contentions in his Supplement/Amendment:

VII. THE PETITIONER WAS DENI ED HIS SIXTH AMENDMENT

RIGHT T O THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE

GUILT AN D SENTENCING PHASES OF THE TRIAL WITHIN

THE MEAN I NG OF STRICKLAND v. WASHINGTON

, AND

CORRESPONDING PORTIONS OF THE MISSISSIPPI

CONSTITUTION.

VIII. THE AGGRAVATI NG FACTORS ELEVATING THE CHARGE TO

A CAPITAL

OFFENSE WERE NOT INCLUDED IN KNOX’S

INDICTME

N T AND THEREFORE HIS DEATH PENALTY MUST

BE VACATED.

IX. PETITIONER’S DEATH SENTENCE VIOLATES THE SIXTH AND

EIGHTH AMENDMENTS AS THE JURY FOUND THE

AGGRAVATING CIRCUMSTANCES IN THE DISJUNCTIVE.

X. THE SENTENCING JURY WAS IMPROPERLY INSTRUCTED.

XI. ADMISSI O N OF THE PHOTOGRAPH OF THE DECEASED

TAKEN PRIOR TO HER DEATH WAS ERROR.

XII. PETITIONER ASSERTS THAT H IS DEATH SENTENCE WAS

DISPROPORTIONATELY IMPOSED.

FACTS

¶4. On October 22, 1998, Ell a Mae Spears was scheduled to travel from Liberty to Fayette,

Mississippi, to babysit the children of her niece, Guy Alice Spears Green. When she failed to

arrive as scheduled, her family contacted the Sheriff’s Office. The authorities went to her

house, where they found her body locked in th e trunk of her car. Autopsy results indicated that

her death was consistent with manual strangulation. Later that day Steve Knox was apprehended

in the area of Ella Mae Spears’s house with her m i ssing house and car keys in his back pocket.

A search of Knox’s parents’ home yielde d a shirt and jogging pants which were stained with4

wet, reddish brown spots. Knox could not remember how he came to be wearing bloody

clothing and how the keys came to be in his back pocket. He stated that he woke up on the

morning o f October 22, went outside to a field, and then woke up in the field some time later

with blood on his clothes and no memory of what had happened.

DISCUSSION

I. INSTRUCTIONS 2 AND 12.

¶5. Knox first argues that portions of Sen tencing Instructions 2 and 12 were vague and

overbroad. The State answers that this issue was considered and found to be without merit on

direct appeal. S ee Knox

, 805 So.2d at 533-35. A review of this Court’s opinion shows that

only Instruction 12 was consid ered by this Court during Knox’s direct appeal. Most of the

argument based on Instruction 2 is not barredby res judicata, but Knox is procedurally barred

from raising here any objections to Instruction 2 at this time under Miss. Code Ann. § 99-39-

21(1). This Court has stated that

[p]rocedural bars o f waiver, different theories, and res judicata and exception

thereto as defined in the post-conviction relief statute are applicable in death

penalty post conviction reli ef applications. C ole v. State

, 666 So.2d 767, 773

(Miss. 1995). Also, although this Court need not look further after finding

procedural b ar, it may review the merits of the underlying claim knowing that

any subsequent review will stand on the bar alone. B lue v. State

, 674 So.2d

1184, 1191-92 (Miss. 1996).

Brewer v. State , 819 So.2d 1165, 1167-68 (Miss. 2000).

¶6. Knox complains about his portion of Instruction 2:

Whether the capital offense was especi ally heinous, atrocious or cruel in that

the defendant inflicted physical or mental pain before death, that there was

mental torture and aggravation before death, or that a linger ing or torturous

death was suffered by the victim, in that Stev e Knox bludgeoned and choked5

Miss Spears and stuffe d her into the trunk of her car while she may have still

been alive.

¶7. Knox argues first that Instruction 2 was the “functional equivalent of a directed verdict”

on the heinous, atrocious or cru el issue. We disagree. Instruction 2 asks the jury to find

whether the offense was heinous, atrocious or cruel in the cont ext of acts it had already found

that Knox had committed.

¶8. Knox next argues that his death sentence was based on speculation because the jury was

instructed th

at Knox may have committed certain acts “while she may have still been alive.”

Though not in relation to this in struction, this Court, in discussing the circumstances of Ella

Mae Spears’s death on direct appeal, found that “the jury was not required to so speculate” as

to whether her death was especially heinous. Knox , 805 So.2d at 534.

¶9. Last, Knox cites an Alabama case, B arksdale v. State , 788 So.2d 898 (Ala. Crim. App.

2000). Knox argues that B arksdale sets a higher standard for the heinous, atrocious and cruel

aggravator. Whether it does or not is irrelevant, as B arksdale has no t been adopted by this

Court. This issue is without merit.

II. and VII. INEFFECTIVE ASSISTANCE OF COUNSEL.

¶10. Knox argues that he received ineffective ass istance of counsel at trial. He raises this

claim under Issue II, in his Petition for Post-Conviction Relief, and under Issue VII, in the

Supplement/Amendment to Petition.

¶11. This Court

described review of a claim of on ineffective assistance of counsel and the

standard provided in S trickland v. Washington

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

(1984):6

"The benchmark for judging any claim of ineffectiveness [of counsel] must be

whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on a s having produced a just

result." Strickland v. Washington

, 466 U.S. 668, 686, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel's

performance was deficient and that the de ficiency prejudiced the defense of the

case. Id. at 687, 104 S.Ct. 2052. "Unless a defendant makes both showings, it

cannot be said that the conviction or death sentence resulted from a breakdown

in the adversary

process that renders the result unreliable." S tringer v. State

, 454 So.2d 468, 477 (Miss.1984) (citing S trickland v. Washington

, 466 U.S.

at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel's

assistance was reasonable considering all the circumstances. Id.

Judicial scrutin

y of counsel's performance must be highly

def erential. (citation omitted) ... A fair assessment of attorney

performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconst ruct the circumstances

o f counsel's challenged conduct, and to evaluate the conduct fr o m

counsel's perspective at the time. Because of th e difficulties

inherent in making the evaluation, a court must indulge a strong

presumption that counsel's conduct falls within the wide r ange of

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action 'might be considered sound trial strategy.'

Stringer

, 454 So.2d at 477 (citing Strickland

, 466 U.S. at 689, 104 S.Ct.

2052). Defense counsel is presumed competent. Id.

Then, to determine the second prong of prejudice to the defense,

the standard is "a reasonable probability tha t, but for counsel's

unprofessional errors, the result of the p roceeding would have

been different." Mohr v. State

, 584 So.2d 426, 4 30 (Miss.1991).

This means a "probability sufficient to undermine the c onfidence

in the outcome." Id. The question here is:

whether there is a reas onable probability that,

absent the errors, the sentencer–including an

appellate court, to the extent it independently

reweighs the evi

d ence--would have concluded that

the balance of the aggravating and mitigating

circumst ances did not warrant death. S trickland

, 466 U.S. at 695, 104 S.Ct. at 2068.7 There i s no constitutional right then to errorless counsel. C abello

v. State

, 524 So.2d 313, 315 (Miss.1988); M ohr v. State

, 584

So.2d 426, 430 (Miss.1991) (rig h t to effective counsel does not

entitle defendant to have an attorney who makes no mista kes at

trial; defendant just has right to have competent counse l). If the

post-conviction application fails on eit her of the S trickland

prongs, the proceedings end. Neal v. State

, 525 So.2d 1279,

1281 (Miss.1987); Mohr v. State

, 584 So.2d 426 (Miss.1991).

Davis v. State

, 74 3 So.2d 326, 334 (Miss.1999) (citing F oster v. State

, 687

So.2d 1124, 1130 (Miss.1996)).

Brown v. State

, 798 So.2d 481, 493-94 (Miss. 2001).

A. Batson v. Kentucky

¶12. Knox’s jury was comprised of thre e African-Americans and nine Caucasians. The State

used eleven peremptory challenges in all, eight a g ainst African-Americans on the venire.

K nox’s trial counsel objected based on Batson v. Kentucky

, 476 U.S. 79, 106 S .Ct. 1712, 90

L.Ed.2d 69 (1986). The circuit court required the State to provide race-neutral reasons for the

peremptory strikes. The race-neutral reasons may be summarized as follows: (1) Schneider

showed a drastic reaction when the death penalty status of case was announ c ed, rolled her eyes,

became pained in her appearance, an d did not raise her hand on any question pertaining to the

death pen

alty; (2) Higgonbottham also reacted to the death penalty status announcement and

was related to a woman who recently had been char ged with aggravated assault but the grand

jury refused to indict; (3) Jenkins was rela ted to an unpopular constable who had problems with

law enforcement during his term in office; (4) Williams had strong feelings against imposition

of the death penalty; (5) McCoy or someone in his family had been cha rged with a crime; (6)

Richard son attempted to have herself excused because of previous jury service; (7) Jones was

non-responsive and wore a ponytail; (8) Williams was young and non-re sponsive and appeared8

to be nodding of

f at times. Defense counsel responded: “I cannot dispute any of the things that

Ronnie [the District Attorney] has set forth. He was pretty weak on identifying with the

defendant. Other than that, how the hair fixed up, a whole lot to do with anything.” The circuit

court found that some of the State’s reasons were a close call but accepted them and allowed

the challenges to stand.

¶13. Kno x argues that “the trial court clearly indicated that trial counsel could have

challenged some of the prosecution’s race-neutral reasons in light of B atson .” We disagree

that the circuit court’s comme nts amounted to such an indication. Knox does not cite any of

this Court’s decisions construing Batson

.

¶14. The State cites Brown v. State

, 749 So.2d 82 (Miss. 1999), where Brown all eged that

his trial counsel had been ineffective for failure to offer re buttal argument to the State’s

allegedly race-neutral reasons for peremptory strikes. Brown did not say what information his

trial counsel should have offered in rebuttal. Brown also argued that allegations against the

jurors supplied by police was hearsay. This Court found that the State gave legitimate raceneutral reasons for the peremptory strikes and absent some sho wing of a different outcome

had the Batson objections been sustained, tria l counsel was not ineffective on this issue. Knox

has failed to make a showing of ineffective assistance on this issue.

B. Failure to present any defense

¶15. K nox next argues that his trial counsel “failed to present an adequate and sufficient

defense” and “failed to provide any meaningful adversarial testing of the prosecution’s case.”

Knox argues tha t “the non-existence defense resulted in deficient performance.” Knox cites

United States v. Cronic

, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), as authority.9

Knox poi nts out that trial counsel failed to call any witnesses during the guilt phase of the trial,

and presumably this sub-issue is confined only to counsel’s pe rformance in the guilt phase of

the trial.

¶16. Knox told Deputy Sheriff Donald Butler that he woke up on the morning of the murder

of E lla Mae Spears, went outside to a field, and the next thing he remembered was waking up

in the field several hours later wit h blood on his clothes and no memory of how the blood got

on his clothe s. Knox now does not say how his trial counsel were supposed to fashion a

defense out of this version of events.

¶17. The State ci

tes Branch v. State , 882 So.2d 36 (Miss. 2004), where this Court discussed

the difference between an ineffective assistance of counsel claim under S trickland v.

Washington and a claim under Cronic :

The S upreme Court has recognized a limited exception to the

prejudice requirement when (1) assista n ce of counsel has been

denied completely, (2) "counsel entirely fails to subject the

prosecution's cas e to meaningful adversarial testing," or (3)

counsel is denied during a critical stage of the proceedings.

Cronic

, 466 U.S. at 658-5 9, 104 S.Ct. 2039; see M ickens

v.Taylor

, 535 U.S. 162, 122 S.C t. 1237, 1240-41, 152 L.Ed.2d

291 (2002).

Freeman v. Graves

, 317 F.3d at 90 0. In this case, because the errors were

committed by his own counsel, Branch argu es that there was no meaningful

adversarial testing of prosecutor's case. Bell v. Cone

, 535 U.S. 685, 122 S.Ct.

1843, 1851, 152 L.Ed.2d 914 (2002) ( discussing egregious trial conduct

necessary to remove a case from Strickland analysis and apply a C ronic

analysis).

When applying Strickland or Cronic

, the distinction between

counsel's failur e to oppose the prosecution entirely and the

failure of counsel to do so at specific points during the trial is a

"difference

... not of degree but of kind." [ Bel l

, 122 S.Ct. at 1851

(quoting Cronic

, 466 U.S. at 659, 104 S.C t. 2039)]. Under this10 rationale, when counsel fails to oppose the prosecution's case at

specific points or concedes certain elements of a case to focus

on others, he has made a tactical decision. I

d. at 1851-52. By

making such choices, defense counsel has not abandoned his or

her client by entirely failing to challenge the pr osecution's case.

Such strategic decisions do not result in an abando nment of

counsel, as when an attorney completely fails to chal lenge the

prosecution's case. Under the Court's reasoning, then, C ronic is

reserved only for those extreme cases in which counsel fails to

present any defense. We presume prejudice in such cases because

it is as if the defendant had no representation at all. In contrast,

strategic or t actical decisions are evaluated under S trickland's

traditional two-pronged test for deficiency and prejudice.

Haynes v. Cain

, 298 F.3d 375, 381 (5th Cir. 2002).

A defendant is not entitled to errorless counsel. H ansen v. State

, 649 So.2d

1256, 1259 (Miss .1994), J ohnson v. State

, 511 So.2d 1333, 1339-40

(Miss.1987). This Court must look to t he entire performance of counsel to

determine whether he or she was competent and conscientiously fulfilled the

role as advocate.

Branch

, 88 2 So.2d at 65-66. This Court found that a review of the record showed that Branch

was “represented by competent and zealous counsel” who “challenged the State’s evidence at

all stages of this case,” and there was no merit to the issue. Branch , 882 So.2d at 66.

¶18. The State contends that Knox’s trial counsel challenged the State’s case and there was

no violation under Cronic

. The State points out that defense counsel filed numerous pre-trial

motions; cross-examined nine out of eleven prosecution witnesses; points out a long colloquy

between the circuit court and defense counsel on w hether one defense witness might be

located and called ( the witness ultimately was not called because he would have corroborated

the State’s witnesses as to what happened when Knox was taken into custody); notes that Knox

was thor oughly examined on whether or not he wanted to take the stand; and that the physical

evid ence in the case was overwhelming in favor of the State. The State attaches to its Response11

an affidavit from Gu s Sermos, one of Knox’s trial attorneys, wherein Sermos states that he met

with Knox on numerous occasions and even discussed a plea offer from t he State with Knox,

which Knox ultimately rejected. The terms of the plea offer are not supplied.

¶19. As Knox has not suggested any new evidence or testimony which should have been

offered by his trial counsel, we find that there was no violation of Knox’s right to counsel

under Cronic or Strickland

.

C. Failure to Investigate and Present Mitigating Evidence Concerning

Mental Health

¶20. This issue was raised in both Knox’s original Petition for Post-Conviction Relief, as

his sole claim for ineffective assistance, and his Supplement/Amendment to Petition for PostConviction Relief, under Issue C.

¶21. Knox argues that trial couns el failed to adequately investigate mitigation factors and

interview potential mitiga tion witnesses. Knox notes that trial counsel called no witnesses

during the guilt phase of his trial and only two wit nesses during the sentencing phase, Knox’s

mother and aunt. Trial counsel also introduced copies of Knox’s Social Security records

during the sentencing. Knox suffered a head injury while doing construction work in 1998.

Knox claimed that he suffered from hea daches because of this injury. In October 1998 he

applied for SSI disability due to his head injury. His application was denied.

¶22. Knox also attaches two affidavits from Deidre Jack son, a paralegal, and Tomika Harris,

an investigator, both with the Mississip pi Office of Capital Post Conviction Counsel. Each

affidavit states that Jackson and Harris conducted a phone interview with Mildred Knox,

mother of Steve Knox, on Janu ary 30, 2003. The affidavit states that Steve Knox was a slow12

child who didn’t talk much until the age of seven and that she believed he had learning

disabilities, but she couldn’t afford to take him to a doctor; that he wet his pants until his was

ten, but medica

tion helped that problem; that Steve would wake up on some days and complain

that he could not see, and woul d stay in bed until his vision returned; that Steve’s favorite hobby

growing up was boxing; that Steve couldn’t hold a job for a long period of time; and that he

seemed to have mental problems but the problems worsened when Steve was struck in the head

with a backhoe bucket a t a construction job in North Carolina. Knox states that this

informat ion could have been presented at trial or should have led to further investigation as to

mitigating evidence or even as to possible mental retardation.

¶23. Knox also states that he “had a prior hi story of substance abuse beginning at the age of

fourteen,” that he was “a

heavy user of crack and occasionally marijuana,” and as a result of his

drug use, he “was often homeless.” Knox cites no authority for these assertions.

¶24. Knox cites Willi ams v. Taylor , 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000),

where the United States Supreme Court found that counsel h ad been ineffective at the

sentencing phase of trial because of counsel's fai lure to investigate and uncover proof of

Williams's tragic childhood because counsel thought that state law barred access to certain

relevant records. The Court said counsel could have discovered that Williams's parents had

been imprisoned for criminal neglect of their children, that Williams had been beaten by his

father, th at Williams had spent time in an abusive foster home, that Williams was borderline

mentally retarded and did not advance past the sixth grade i n school, and that Williams had

helped authorities during his stay in prison.13

¶25. Knox also cites Jackson v. Calderon

, 211 F .3d 1148 (9th Cir. 2000), where Jackson's

attorney was found to be ineffective in the sentencing phase for spendin g about two hours

investigating in prepar ation for sentencing and calling only Jackson's estranged wife and

mother as witnesses. In invalidating the death sentence, the Ninth Circuit stated that Jackson's

attorney never investigated beyond the mother and wife because he never expected the case to

reach the sentencing phase, and he never investigated or presented evidence concerning

Jackson's addiction to PCP or his P CP intoxication at the time of the murder, never

investigated a

separate aggravating factor, and never investigated beatings Jackson had endured

as a child or signs that Jackson was mentally ill. S ee also Smith v. Stewart , 140 F.3d 1263

(9th Cir. 1998) (death sen tence vacated where counsel presented no mitigating evidence when

evidence concerning mental problems, drug abuse and family ties was available).

¶26. The State answers by first stating that the affidavits of the Office of Capital PostConviction Counsel staff contain hearsay, and when Mildred Knox purports to convey what

o ther people have stated, they contain double hearsay. The State cites B ishop v. State

, 882

So.2d 135, 155 nn. 11 & 12 (Mi ss. 2004), where this Court found that similar affidavits would

not be considered in post-conviction proceedings.

¶27. The State then discusses the Social Security documents attached by Knox to his

Petition, noting that the same documents were admitted as an exhibit during the sentencing

phase of Knox’s trial. Defense counsel was allowed to give a short explanation to the jury

concerning Knox’s injury and his attempt to be declared disabled by the Social Security

Administration.14

¶28. The State also cites the affidavit from tr ial counsel Gus Sermos, which states that

Sermos and co-counsel Rosenthal met with Knox on numerous occasions, and tri al counsel

concluded that “neith

er Knox’s sanity nor his competency to assist counsel and go forward

with the case were issues in question.” Sermos further states in the affidavit that he spoke to

or attempted to speak to numerou s members of the Knox family and the way in which he

evaluated the information they gave him.

¶29. The State points out that Knox managed to hold c ertain menial jobs and was never

declared disabled by the Soc i al Security Administration. The State points out that Knox has

supplied little or nothing as to what an effective attorney per forming a proper investigation

would or should have found in the way of mitigating testimony. The State argues that the

accusation that trial counsel failed to properly investigate is merely an unfounded allegation.

We agree with the State. This issue is without merit.

D. Failure to determine competency to stand trial.

¶30. Knox next argues that, considering his head injury and his attem pt to obtain Social

Security disability benefits, trial counsel should have asked that the circuit court make a

determination as to Knox’s competency before trial. Knox states that failure to ask for such

a determination despite the warning signs available to counsel amounts to ineffective

assistan ce. Knox cites A gan v. Singletary

, 12 F.3d 1012 (11 th Cir. 1994); Bouchillon v.

Collins , 907 F.2d 589 (5 t h Cir. 1990); Jackson v. State

, 857 S.W.2d 678 (Tex. Ct. App. 1993);

and State v. Green

, 632 So.2d 1187 (La. Ct. App. 1994). In all of these cases counsel was

found to ineffective for failure to investigate competency or so me other aspect of the client’s

mental state or failure to obje ct when the statutory means for determining competency was not15

followed. There was also medical evidence of mental illness, insanity, retardation and

substance abuse presented in each of these cases. Knox has presented no such evidence in this

case. He has not supplied an affidavit from any doctor or mental health professional which

states that he is incompetent now or that he w as incompetent at the time of his trial. Absent

some evidence of this type, the case law cited by Knox is irrelevant.

¶31. Knox next argues that appellate counsel was ineffective for failure to raise as error on

appeal the circuit court’s f ailure to order a competency examination even where none

req uested. Neither Knox nor the State cite authority from this Court stating that the failure to

ask for a competency hearing, by itself, amounts to ineffe c tive assistance of counsel. Absent

some substantial evidence, in addi tion to the medical and Social Security records already

produced, which raises a legitimate question conce r ning Knox’s competence, we find that trial

counsel was not ineffective here.

E. Failure to Investigate and Present Mitigating Evidence

¶32. This is a restat ement of subsection C of this issue. Nothing presented here changes this

Court’s earlier

finding, that Knox has failed to show ineffective assistance of counsel on the

failure to investigate and find mitigating evidence, mostly in the area of mental health.

III. EVIDENCE OF ROBBERY.

¶33. Knox argues that the circuit court erred in failing to grant a directed verdict on the

capital murder charge becaus e the evidence was insufficient to support a guilty verdict on

robbery, the underlying felony. Knox cites R egister v. State

, 232 M iss. 128, 97 So.2d 919

(1957), where Register was convicted of robbery. This Court reversed Register’s conviction

because it

was not proven that Register took the personal property of his victim16

contemporaneously with his ass ault on her, or that the violence Register used against the

victim was the means by which her personal property was taken. Knox argues that there was

no testimony

based on personal knowledge as to the alleged robbery of Ella Mae Spears or how

Knox got the house key and car key in question. Knox argues that this conjecture does not

amou nt to a robbery under Miss. Code Ann. § 97-3-19. Knox also cites C layton v. State

, 759

So.2d 1169 (Miss. 1999), where Clayton’s robbe ry conviction was reversed because it was not

proven that Clayton put his victim in fear of immediate injury before he snatched her purse.

¶34. The State argues that consideration of this issue is barred by res judicata, because the

issue was raised on direct appeal and found to be without merit by this Court. S ee Miss. Code

Ann. § 99-39

- 21(3); Doss v. State

, 882 So.2d 176, 197 (Miss. 2004). A review of this Court’s

opinion shows this to be correct. This Court found that “the elements of robbery by theft of

house and car keys, the underlying felony, was cle arly established and proven beyond a

reasonable doubt.” K

nox

, 805 So.2d at 532. We note that Knox argued and relied upon

Register on direct appeal. This Court also stated that, “[i]t is not necessary that the victim be

deprived of property prior to death to sustain a conviction for robbery.” I d. at 531 (cit ing West

v. State

, 463 So. 2d 1048, 1056 (Miss. 1985)). We also noted, “a blood trail led from a spot

in her garage to the trunk of her car, with no sign of entry into her home, all of which indicates

that Knox took the keys from Spear’s person w hile she was in the garage.” I d. at 532. We also

no ted that the house and car keys was “property of nominal and modest value” but, that was “of

no great concern,” citing Fisher v. State

, 481 So. 2d 203 (Mis s. 1985), where this Court has

upheld the underlying felony of ro bbery where only property of nominal or modest value was17

taken. I d. S ee also Pe ople v. Gonzalez , 254 A.D. 2d 157, 158, 681 N.Y.S.2d 3, 4 (N.Y. App.

Div. 1998) (Car keys were taken and consisted of only modest or nominal value.)

¶35. It is thus apparent to thi s Court, as it obviously was to the jury, that Knox killed his

victim in the garage, took the house and car key s from her, drug her body and placed it in the

trunk of the car. The jury could have then concluded that Knox killed Ms. Spears and took the

keys “intendin

g to take her car and that he either failed to do so or intended to return at a later

time.” 805 So. 2d at 532. This issue is without merit.

IV. CONSTITUTIONALITY OF DEATH PENALTY STATUTES.

¶36. Knox next argues that Miss. Code Ann. § 97-3-19(2)(e), § 99-19-101(5)(d) and § 99-

19-101(7) are unconstitutional. Section 97-3-19(2)(e) provides circumstances under which

killing of a human being can become capital mu rder, i.e. murder in the commission of a felony;

Section 99-19-101(5) (d) lists certain felonies as potential aggravating circumstances in a

capital offense; and Section 99-19-101(7) lists the so-called Enmund factors. Knox concedes

that this Court has consistently held that § 97-3-19(2)(e) “ passes constitutional muster.” Knox

disagrees with these repeated findings.

¶37. As to § 99-19-101(5)(d), Knox appears to argue that a person could be given the death

penalty because “anyon

e who commits a felony during which a killing takes place has

contemplated that lethal for ce would be used and is therefore death eligible.” Knox argues that

the required level of intent would not be met here. This is an academic argument in this case.

The jury found that Knox actually killed E lla Mae Spears. Knox also concedes that this Court

has found § 99-19-101(5) to be constitutional.

¶38. Finally, as to § 99-19-101(7), this Court has stated:18

Stevens asserts that the jury instructions given during the penalty phase of his

trial were constitutionally defec tive in light of T ison v. Arizona

, 481 U.S. 137,

107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Stevens argues that Miss.Code Ann. §

99-19-101(7) improper

ly allows the commission of a felony to be used as an

aggravating factor in determi nation of a death sentence, thereby lowering the

level of culpability required to impose a death sentence. However, even Stevens

acknowledges that the death penalty may be imposed as punishment for a killing

which takes place during th e commission of a felony. S tevens v. State

, 806

So.2d at 1053. Stevens also argues that the capital sentencing scheme violates

the Eighth Amendme n t because it potentially might allow one who merely

participates in a felony to receive the death sentence for a killing he had no

intent to commit.

This Court has previ ously determined that a sentencing scheme which permits

imposition of the death penalty for certain felony murders witho ut a finding of

a specific intent to kill is not violative of either the Eighth Amendment or due

process protections. Holland v. State

, 705 So.2d 307, 319- 2 0 (Miss.1997).

The Court has also held that the "during commission of a felony" ag g ravating

factor is not unconstitutional because other statute s prevent the sentencing body

from im posing a punishment that is greater than the crime. G rayson v. State ,806

So.2d 241, 252 (Miss.2001). These issues are without merit.

Stevens v. State , 867 So.2d 219, 223 (Miss. 2003).

¶39. The State argues that Knox is procedurally barred from raising this issue because it was

not raised on direct appeal. S ee Miss. Code Ann. § 99-39-21(1 ). This is correct. In addition,

a review of the merits shows that Knox is due no relief on this issue.

V. PROPORTIONALITY OF DEATH SENTENCE.

¶40. Knox next argues that hi s death was disproportionate “when considering his relative

mental state and culpability.” He also states that his sentence “violates federal case law

because it ignores the mental state of the defendant and because there is no ra tional basis for

treating a felony murderer more culpable than a deprav ed heart murderer.” Knox cites F urman

v. Georgia

, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); G regg v. Georgia

, 428 U.S.

153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (19 76); Enmund v. Florida , 458 U.S. 782, 102 S.Ct.19

3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona , 481 U.S. 137, 107 S.Ct. 1676, 95 L. Ed 2d

127 (1987); and Grayson v. State , 806 So.2d 241 (Miss. 2001).

¶41. This Court considered the proportionality o f Knox’s death sentence on direct appeal

and found:

Mi ss.Code Ann. §99-19-105(3) (2000) requires that a proportionality review

be conducted by this Court when affirmin g a death sentence in a capital case. It

does not appear that Knox's death sentence was imposed under the influence of

passion, prejudice or any other arbitrary factor. As discussed previously, the

evidence suppo rts the "heinous, atrocious, or cruel" aggravating factor. Finally,

it does not appear upon comparison to other factually simi lar cases where the

d eath sentence was imposed, that the sentence of death is disproportionate in

this case. See Appendix of d eath penalty cases decided by this Court. Having

given individualized consideration to Knox and the crimes in the present case,

this Court concludes that there is nothing about Knox or his crimes that would

make the death penalty excessive or disproportionate in this case. S ee Dos s v.

S tate

, 709 So.2d 369 (Miss.1997) (death sentence was proportionat e where

defendant robbed and shot victim); Cabello v. State

, 471 So .2d 332,

350(Miss.1985) (d eath sentence was proportionate where defendant strangled

and robbed victim); Evans v. State

, 422 So.2d 737, 739 (Miss.1982) (death

sentence was proportionate where defendant robbed and shot victim).

Knox , 805 So.2d at 534.

¶42. The State argues that consideration of the issue is b arred by res judicata, as the issue

was considered and found to be without merit on direct appeal

. See Miss. Code Ann. § 99-39-

21(3); Doss v. State

, 882 So.2d at 197. Knox appears to be raising a new basis for the

proportionality argument here, as he did not raise any proportionality argumen t on direct

appeal; rather, it

appears that this Court considered this issue on its own because of the

requirement of Miss. Code Ann. § 99-19-105(3). In this case, this argument is procedurally

barred because it was not raised on direct appeal. See Miss. Code Ann. § 99-39-21(1).20

¶43. Even if the merits of the issue were conside red, this argument has been raised and

rejected by this Court previously on the post-conviction level. S ee Grayson v. State , 879

So.2d 1008, 1019 (Miss. 2004). The issue is without merit.

VI. CUMULATIVE ERROR.

¶44. Knox next argues t hat he is entitled to relief based on cumulative error, though he does

not name any specific issu es. Considering the issues he has raised previously, along with those

not yet discussed, we find no error sufficient to allow him to proceed in the trial court,

cumulative or otherwise.

¶45. Knox argues that a reviewing court must also consider the cumu lative effect of

counsel’s deficient performance. This Court did so under discussion of Issues II and VII, and

found no cumulative error.

VIII. SUFFICIENCY OF THE INDICTMENT.

¶46. Knox next argues that his indictment was defective because the aggravating factors were

not included in the indictment. He cites R ing v. Arizona

, 536 U.S. 584, 122 S.Ct. 242 8

, 153

L.Ed.2d 556 (2002); Apprendi v. New Jersey

, 530 U.S. 466, 12 0 S.Ct. 2348, 147 L.Ed.2d 435

(2000); Jones v. United States , 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); and

United States v. Allen , 247 F.3d 741 (8 th Cir. 2001).

¶47. The State answers that this issue was raised, considered and found to be without merit

by this Court in Simmons v. State

, 869 So.2d 995 (Miss. 2004), P uckett v. State

, 879 So.2d

920 (Miss. 2004) and Be rry v. State , 882 So.2d 157 (Miss. 2004). This Court found that

Ring’s holding was that juries must find a ggravating factors; that in Mississippi, only juries can21

find aggravating factors in capital cases; and that none of the cases cited by Petitioners

mandated that indictments for state capital defendants include all aggravating factors. This

issue is without merit.

IX. INSTRUCTION S-2.

¶48. Knox argues that a portion of Sentencing Instruc tion 2 was improperly worded and

allowed for an improper finding by the jury. Instruction 2 stated in part:

Consider only the following elements of aggravation in det ermining whether the

death penalty should be imposed:

1. Whether the capital offense was committed while the defendant was engaged

in the commission of, or an attempt to commi t, or flight after committing or

attempting to commit, a robbery, in that St e ven Knox was attempting to rob Miss

Ella Spears of her automobile when he killed her and had , in fact, taken her car

keys from the premises.

¶49. Knox argues that the jury’s verdict did not establish that the jury found the existence of

aggravating circumstances beyon d a reasonable doubt, as some jurors could have found that a

robbery occurred, others could have found that att empt to rob occurred, and still others could

have found that flight after a robbery occurred.

¶50. The S tate argues first that there was no objection to this instruction at trial and its

submission was not raised as an error on direct appeal, and Knox is procedurally barred from

raising it here for th

e first time. S ee Miss. Code Ann. § 99-39-21(1). The Court agrees that

Knox is procedurally barred from raising this issue.

¶51. Wi

thout relaxing the bar, the Court will consider the merits of the claim. S ee Walker

v. State

, 671 So. 2d 581, 591-93 (Miss. 1995). The State argues that Knox only quotes part

of the instruction, and when Instruction 2 is read in its enti rety there is no error or danger of22

alternative findings. The part of the instruction Knox quotes is taken from Miss. Code Ann.

§ 99-19-101(5)(d), and is stated in the disjunctive. However, the factual portion of the

instruction which follows narrows the aggravating circumstance so that the jury, in its decision

on the aggravator in question, was finding only that Knox was attempting to rob Ella Mae

Spears when he killed her. This issue is procedurally barred and , alternatively without merit.

X. INSTRUCTION S-11.

¶52. Knox next argues that the jury wa s improperly instructed, citing Instruction 11, in

particular the following portion:

The Court instructs the jury th at Steve Knox does not have to prove the

existence of mitigating circumstances beyond a reasonable doubt. Rather, you

must find a mitigating circumstance to exist if you find it to exist to a

preponderance of the evidence.

Knox argues that th

e jury was not provided with a definition of “a preponderance of the

evidence,” and was therefore improperly instructed.

¶53. The State answers, first, that this issue was not raised at tria l or on direct appeal and is

Knox is procedurally barred from raising it first at the post-conviction level. S e e Miss. Code

Ann. § 99-39-21(1). We agree.

¶54. Second, the State notes that Knox is quoting an instruction that he subm itted. Knox

argues that “the only burden of proof the jury was provided instruc tion for was ‘beyond a

reasonable doubt’ which is a much more stringent standard.” The State points out that Knox

did not submit any definition of preponderance of the evidence in his instructions.23

¶55. The State further argues that the jury was i nstructed that the burden of proof for

mitigating circumstances was less than that for aggravat ing circumstances. Instruction 4 states

in part:

However, mitigating circumstance s do differ from aggravating circumstances

because you

are not required to be convinced beyond a reasonable doubt that a

mitigating circumstance exists before you must take that circumstance into

account as you deliberate th is case. You must consider a mitigating

circumstance if you believe that there is any evidence to support it.

¶56. The State finally cites Holl and v. State , 705 So.2d 307, 354 (Miss. 1997), where the

trial court refused

to instruct the jury that the burden of proof for mitigating circumstances

was to a preponderance of the evidence. In H olland

, this Court f

ound no error. Here too, we

find that this issue is without merit.

XI. ADMISSION OF PHOTOGRAPH OF DECEASED.

¶57. The State introduced a photograph of the deceased, Ella Mae Spears, taken shortly

before her death, during the testimony of her niece, Guy Alice Spears Green. Defense counsel

objected on the grounds of relevance and the State’s attempt to engender sympathy. The

objection was overruled. Knox did not raise the admission of the photograph as an issue on

direct appeal.

¶58. Knox now arg

ues that the photograph was irrelevant and was meant only to inflame the

jury. Knox cites several cases from other jurisdictions where this was found to be reversible

error. Knox cites C oleman v. State

, 218 Miss. 246, 67 So.2d 304 (1953), where Coleman

killed the marshal of the Town of Doddsville while the marshal was attempting to run Coleman

out of town. This Court found that the conviction of murder was improper, and the jury should

have been instructed on the issue of manslaughter, as Coleman wa s resisting the marshal’s24

unlawful act at the time Coleman killed him. This Court further found that admission of the

marshal’s photograph was erroneous because of lack of relevance.

¶59. The State argues that this issue was not raised on direct appeal and is procedurally

barred under Miss. Code Ann. § 99-39-21(1). We agree with the State’s argument as to

procedural bar. Alternatively, as to the merits of the claim , the State cites Edwards v. State

,

737 So.2d 275 (Miss. 1999), where this Court found that photographs of two dec eased

victims, taken before their deaths, were admissible. The Court finds that, pursuant to E dwards

,

the issue is without merit. In conclusion, this issue is procedurally barred and alternatively,

without merit. See Brewer v. State

, 819 So. 2d at 1167-68; Walker

, 671 So. 2d at

591-93.

XII. PROPORTIONALITY OF DEATH SENTENCE.

¶60. Knox a rgues once again that his death penalty was disproportionately imposed. He

states that

[a]n adequate review necessarily requires that cases in which a life sentence has

been imposed must be i

ncluded in the comparison. Also, it is necessary in the

comparison of defendants that more than ju st prior criminal records need to be

examined. Failure to consider changes in capital law and the effect that those

changes might have on the legitimate similarities of some of these cases is

unacceptable. The way in which proportionality review is conducted must be

changed, otherwise, the review is inaccurate, misleading and essentially serves

no legitimate purpose.

Knox cites no case law in support of this argument. He then repeats some of the argument

presented under Issue VIII, once again citing Apprendi v. New Jersey and Ring v. Arizona

.

¶61. The State answers, as it did under Issue V where K nox first raised his proportionality

ar gument, that the argument was considered by this Court on direct appeal and is barred by res25

judicata. We agree. The State next points out that A pprendi and Ring have nothing to do with

proportionality review.

¶62. The State finally argues that th is Court has considered and rejected the argument that

cases resulting in life sentences should be incl uded for comparison in proportionality review.

See Blue v. State , 674 So.2d 1184, 1235 (Miss. 1996); Gray v. State

, 472 So.2d 409, 420

(Miss. 1985). This issue is without merit.

CONCLUSION

¶63. After thorough con sideration, we deny Steve Knox’s Petition for Post-Conviction

Relief, including the Supplement/Amendment.

¶64. LEAVE TO SEEK POST-CONVICTION RELIEF DENIED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES, DICKI NSON AND

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