IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-DP-00337-SCT

QUINTEZ WREN HODGES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/13/2001

TRIAL JUDGE: HON. JOHN M. MONTGOMERY

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL DEFENSE COUNSEL

BY: ANDRE DE GRUY

CANDY LAWSON

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:

MELANIE KATHRYN DOTSON

MARVIN L. WHITE, JR.

DISTRICT ATTORNEY: FORREST ALLGOOD

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT

APPEAL

DISPOSITION: AFFIRMED - 03/10/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1. Quintez Wren Hodges appeals his capital murder conviction and sentence of death

determined by a Lowndes County Circuit Court jury. The jury returned a guilty verdict against

Hodges, finding that he killed Isaac Johnson during the commission of a felony; therefore,

Hodges committed capital murder pursuant to Miss. Code Ann. § 97-3-19(2)(e). The jury also

returned a guilty verdict against Hodges for the kidnaping of Cora Johnson. After a sentencing

hearing, the jury determined that Hodges should be given the penalty of death. The trial court2

entered judgment and s entenced Lynch to death by lethal injection. Hodges was also sentenced

to a term of twenty years for the kidnaping conviction. The trial court denied Hodges’ motion

for a new trial, and he filed his notice of appeal with this Court.

FACTS AND PROCEDURAL HISTORY

¶2. Hodges was born on October 14, 1980. In the summer of 1997, Hodges met thirteen

year old Cora Johnson du ring a visit to play basketball with her brother, Isaac Johnson. Hodges

and Cora began having a romantic relationship, and in late 1997 Cora became pregnant with

Hodges’ child. Their child was born on September 16, 1998.

¶3. Cora and Isaac Johnson lived with their mother, Bessie Tatum, in Lowndes County,

Mississippi. Approximately four months into Hodges and Cora’s relationship, Hodges began

breaking into Cora’s home without permission. Cora and her family repeatedly demanded that

Hodges cease such actions . They contacted both the police and Hodges’ mother in response

to these repeated burglaries. Cora also warned Hodges that she would break up with him if he

persiste d in breaking into her home. However, Hodges continued to burglarize Cora’s home,

and she ended the relationship in January, 1998.

¶4. On one occasion in May of 1998, Cora came home to find that H odges had, once again,

burglarized her ho me. Cora and her mother found Hodges hiding under Cora’s bed and

immediately contacted the police, and Hodg es was arrested. Hodges pled guilty to the burglary

of Cora’ s home on November 17, 1998. During the time of this arrest and guilty plea, Hodges

was also under indictment for three additional charges: breaking into a school, burglarizing the

home of another female victim, and sexual assault of that victim. Pursuant to a plea bargain,

Hodges plead guilty to the burglary of Cora’s home and was sentenced to six months in the3

Regimented Inmate Discipli n e program (hereinafter RID). The other charges were retired and

placed on hold in the case files.

¶5. During his six months in the RID progra m, Hodges contacted Cora. Both Cora and her

mother knew that their daughter needed a father figure and Cora informed Hodges that she

w anted him to be a part of their daughter’s life. During Hodges’ term in the RID program, Cora

sent various letters. In some letters, Cora admitted she still had feelings for Hodges and that

she might consider reconciling if he would turn his life around and stop breaking into her

home. In other letters she informed Hodges that he might not be the child’s biological father

and that she had a new boyfriend. However, Cora ultimately informed Hodges, both orally and

in writing, that their romantic relationship was over.

¶6. Hodges was released from the RID program on June 29, 1999. Upon his release,

Hodges imme diately contacted Cora, and she arranged for Hodges to see his daughter. During

this visit, Hodges ignored the child and spe nt the entire time making sexual advances toward

Cora. Hodges became angry that Cora did not want to get back together. The weekend prior

to the murder, Hodges was visiting his f riend Anthony Betts. During this visit with Betts,

Hodges had talked to Cora on the phone and later informe d Betts that he was going to buy a gun

and kill somebody with it. According to Betts, he did not take Hodges seriously because he

knew him and figured he would not do something like that.

¶7. On t

he night of July 20, 1999, Isaac, Cora, the child and Harold Jackson (Cora’s new

boyfriend) were spending the evening at Cora’s home. Hodges and Betts were visiting the

home of Reginald Martin, who lived seven houses down from Cora. Between nine and ten p.m.,

Betts called Cora and asked if she would bring the child to Martin’s house, so that Hodges4

could visit with her. Cora refused and told Betts that she had company. Around midnight,

Hodges called Cora and asked again if she could bring the child to Martin’s house. They had

a conversation, and Hodges kept telling Cora he was not going to let her get off the phone.

Hodges was angry during the conversation, and Cora fina l ly hung up the phone. According to

B etts, when Cora finally ended the conversation, Hodges did not talk, he did not la ugh, he just

sat down. A couple hours later, Hodges left Martin’s house and returned home.

¶8. Hodges went home and st ole his mother’s snubnosed, .32 caliber RG pistol and her gray

Oldsmobile. Hodges then put on black shoes, black pants, back shirt, a beige ski mask and

black gloves. He then took the gun and drove to Cora’s neighborhood where he parked two

houses down from Cora’s house. Cora, in the meantime, sent Harold Jackson home and went

to bed. Isaac was talking to his cousin on the phone when Cora went to bed. Around 2 a.m.,

Isaa c told his cousin that he heard a noise in the back of the house, and he saw a shadow go

across the hall. Isaac then called for Cora, thinking she was still awake and told his cousin that

he would call him back.

¶9. At this point, what happened exactly is unknown. During the trial the State put forth

testimony and evidence that the back door to Cora’s house was locked and when Bessie Tatum

left home at 9:30 p.m. the door was in perfect condition and had not been tampered with.

Hodges had been told repeatedly that he was not invited into Cora’s house and Hodges also

knew tha t Cora did not want to see him. There was evidence of forced entry through the back

door. The back door’s lock had been jimmied. There were pry marks left on the back door and

pieces of freshly

scattered foam and weather stripping lying on the ground around the door

frame. Mark Miley, a criminal investigator, testified that the foam and weather stripping was5

fresh because the wind had not blown it away and it had not been walked upon. During the

police investigation, a screwdriver, a knife and a pair of pliers were found on the entry table

next to the back door.

¶10. After Isaac told his cousin that he would call him back, he w ent to investigate the noise

and shadow. Isaac saw Hodges in his black clothes while holding a gun. Isaac was unarmed,

and the family did not own a gun. Hodges informed the police that he thought Isaac was going

for a gun but later conceded that he did not see Isaac with a gun. Hodges then shot Isaac once

in the stomach. Isaac managed to move from the living room into his mother’s bedroom where

he collapsed and never got back up. As Isaac was going into his mother’s bedroom, Hodges

went to th

e take the other phone off the hook. According to Dr. Steven Hayne, Isaac was shot

approximately 1⁄2 inch to the left of his mid-abdominal wall fro m a distance of 1 1⁄2 to 2 feet

away. As a result of the damage caused by the bullet, 2 1⁄2 quarts of blood pooled within Isaac’s

abdominal cavity. According to Dr. Hayne, there were no signs of a struggle or fight and it

took about 5 1⁄2 to 10 minutes for the shock to set in and for Is aac to die. Dr. Hayne testified

that the cause of death was homicide, caused by a gunshot wound to the abdomen.

¶11. After shooting Isaac, Hodges went to C ora’s room where she had just awakened.

According to Cora he came int o her room telling her to get her stuff and that she was going

with him. She told Hodges that she was not going anywhere with him so he struck her across

the head with the gun. Cora then woke her daughter and prepared to leave with Hodges. Cora

walked into her mother’s bedroom and saw Isaac s itting in the dark, on the floor against the

wall. Thinking that Isaac was hiding from Hodges, Cora whispered to him to call 911. At this

time, Cora was unaware that Isaac had been shot . When Hodges saw Cora leaving her mother’s6

bedroom, he grabbed her and told her not to act stupid because he had a gun. Hodges then

pushed Cora out the back door and took her to where he had parked the Oldsmobile. Holding

the gun on Cora and her daughter, Hodges drove to Alabama. During the drive to Alabama,

Hodges forced Cora to throw his ski mask out of the window . During the trial, the defense

brought out the fact that Cora had ample opportunity to escape from Hodges if she really

wanted to leave. However, Cora stated that she did not go because “he had a gun and he was

probably going to shoot me and my daughter.”

¶12. In the meantime, Hodges’ mother, Johnnie Pearl Hodges, contacted the police,

reporting that her car had been stolen. Around 3 p.m. Bessie Tatum called home to check on

her children and discovered that the phone line was busy. She tried to call again and received

another busy signal. She then rushed home to find Isaac dead and Cora and Annasheika missing.

Bessie Tatum ran to her neighbor’s home where she was informed that Hodges had been in the

area. She then asked her neighbor to call 911. Johnnie Hodges also called Bessie Tatum and

demanded to know

where her son was. Bessie then told Johnnie Hodges that she had a child

dead and two missing.

¶13. Once Hodges entered Alabama, he told Cora t hat he shot and killed her brother, Isaac.

Cora testified that Hodges told her he came to her house that night to shoot her and her

mother, Bessie Tatum, if she had been there. Cora also testified that Hodges said he thought

Isaac was going to try to call 911 so he went to the living room and took the phone off the hook

so that the call w ould not go through. According to Cora, Hodges threatened to kill her if she

did anything stupid. Cora testified that during the trip to Alabama, Hodges forced her into the7

back seat of the car , held a gun to her head and raped her while her daughter was lying in the

front seat.

¶14. Cora then told Hodges that she di d not care what he did to her as long as he took her

daughter somewhere to get food and to be taken ca re of. Hodges then went back to Mississippi

where he too k Cora and the baby to his mother’s house. When they arrived at his mother’s

house, Johnnie Hodges who knew of Isaac’s death and Cora and her daughter’s disappearance,

asked Hodges what he had done. Cora told Johnnie Hodges that Hodges shot Isaac but Hodges

quickly told her to shut up and remember his previous threat (to not act stupid because he had

a gun). Hodges informed his family that the gun he used to kill Johnson was still in the car so

Hodges’ sister went to get the gun so that she could hide it. Hodges then left Cora and the baby

at his mother’s house, went to t h e police and confessed to killing Isaac and taking Cora and her

daughter. However, Hodges denied raping Cora, stating that their sexual intercourse was

voluntary. He also claimed that he shot Isaac because he thought Isaac was going to shoot him.

However, he also conceded that he never saw Isaac with a gun.

¶15. While Hodges was at the police station, Greg Wright, an investigator wit h the Sheriff’s

Department, went to Hodges’ house where he was told that Hodges had turned himself in.

After talking to Cora he went inside a nd asked Johnnie Hodges for the gun that Hodges gave

them. Johnnie Hodges took him outside to a small wood-framed house. Inside she took him

into a room, reached under a pile of blankets and brought out a blue bag which held the gun that

was used to shoot Isaac.

¶16. On November 8, 1999, Hodges was indi cted for the capital murder of Isaac Johnson.

He was charged with the u nderlying felony of burglary with the intent to commit an assault in8

a dwelling. Hodges was also indicted for the kidnaping of Cora. On September 22, 1999,

attorney Carrie Jourdan was appointed by the court as counsel fo r Hodges. Jourdan proceeded

to defend Hodges b y attending hearings, filing motions, procuring a mental examination for

Hodges and conducting discovery in this case. After almost two years, on August 20, 2001,

just twenty-one days before trial, Hodge s fired Jourdan and retained private legal

representation from Michael Mill er, knowing that Miller had never tried a capital murder case.

Fou r days after he was appointed, Miller filed for a continuance or in the alternative to

withdraw as Hodges’ counsel. He also filed a motion for time to prepare necessary defense

motions. Miller also obtained the services of a criminal trial attorney, Guy Rogers, Jr., to

assist him in Ho dges’ representation. After determining that Hodges had secured new counsel

for th e purpose of delaying the trial of his case, the court refused to grant any more

cont inuances. The court found that even though Miller lacks the experience to try a capital

murder case, he has obtained experienced co-counsel who has tried capital murder cases

before.

¶17. On September 13, 2001, Hodges was convicted of capital murder of Isaac Johnson and

the kidnaping of Cora Johnson. After the sentencing phase, which was held immediately after

the trial, the jury returned a death sentence. Hodges was also sentenced to a term of twenty

years for the kidnaping conviction. Hodges then moved for a new trial which was denied. The

Mississi ppi Office of Capital Defense was substituted as counsel, and it now appeals to this

Court raising the following claims:

1. Pro secutorial Misconduct Through Improper Cross Examination and the

Int roduction of False Evidence Deprived Qunitez Hodges of a

Fundamentally Fair Trial and Mandates His Death Sentence Be Vacated.9

2. The Prosecutor Committed Plain Re versible Error During Sentencing

Closing Argume nt by Improper and Unfairly Prejudicial Comments and

as a Result Hodges Was Denied a Fundamentally Fair Trial.

3. The Trial Court Erred in Adm i tting Highly Prejudicial and Inflammatory

Testimony a nd Improper Evidence Concerning Hodges’ Previous

Criminal Charges a t Sentencing, Contrary to the Provisions of Rules 403

and 404 of the M RE, and as a Result, Hodges Was Denied a

Fundamentally Fair Trial.

4. Hodges Was Denied Effective Assi stance of Counsel at All Stages of

this Capital Murder Prosecution.

5. The Trial Court Erred in Failing to Accurate ly Instruct the Jury Regarding

Hodges Ineligibility for Parole, Deny ing Hodges an Accurate and

Reliable Sen

tencing Determination in Violation of Mississippi and Us

Constitution.

6. The Capital

Murder Indictment Was Flawed for Failure to Properly

Charge the Offense and Denied Hodges an Opportunity to Properly

Prepare a Defense.

7. The Death Sentence in this Case must Be Vacated Because the

Indictment Failed to Charge a Death Penalty Eligible Offense.

8. Th e Trial Court Committed Reversible Error in Removing for Cause a

Juror Qualified to Serve under Constitutional Standards.

9. The Trial Court Er red in Failing to Grant a Defense Requested Mistrial

Following the Improper Introduction of Other Crimes, Wrongs or Acts

Evidence in Violation of Rules 403 and 404 of the Mre , and Further,

Erred in Failing to A dmonish the Jury to Disregard Such Evidence, or in

th e Alternative, Erred in Failing to Charge the Trial Jury S ua Sponte with

a Limiting Instruction.

10. The Trial Court Co mmitted Plain Error by Allowing Introduction of

Evidence of Other Crimes of Hodges in Violation of Rules 403 and 404

Without First Conducting a Proper Probative Value Versus Prejudicial

Effect Analysis and Without Any Limiting/cautionary Instruction.10

11. The Trial Court Erred in Allowing the Introduction of a Photo of the

Deceased Where it Was Unnecessary to Establish a Disputed Fa ct and

Was Highly Prejudicial, Denying Hodges Fair Trial.

12. The Trial Court Erred in Den ying Defense Requested Lesser Offense

Instruction on Manslaughter and Trespassing.

13. Hodges Conviction of Kidnaping Was Uns upported by the Evidence

Adduced at Trial and Against the Overwhelming Weight of the Evidence

Contrary to Relevant Mississippi Case Law.

14. The Trial Court Erred in Allowing the Jury to Consider the

Unconstitutionally Duplicative Aggravating Circumstance of th e Felony

Burglary, Wh

ich Was Also Used to Elevate the Crime to Capital Murder.

15. The Trial Court Erred in Allowing the Jury to Consider the Invalid

Aggravator of Avoiding Arrest, Which the Jury Used in Support of a

Sentence of Death, Denying Hodges a Relia ble Sentence as Guaranteed

by the US and Mississippi Constitutions.

16. The Trial Court Erred i n Sentencing Hodges to a Term of Years for

Kidnaping, in Violation of Double Jeopardy Provisions of the US and

Mississippi Constitutions.

17. The Trial Court Erred in Failing to Ma ke a Complete Record of the

Instructions of Law upon Which the Jurors Wer e to Rely in Determining

Their Verdicts.

18. The Aggregate Error in this Case Requires Reversal of the Conviction

and Death Sentence.

STANDARD OF REVIEW

¶18. This Court reviews an appeal from a capital murder conviction and death sentence

with “heightened scrutiny” under which al l bona fide doubts are resolved in favor of the

accused. Simmons v. State

, 805 So. 2d 452, 472 (Miss. 2001) (citing Porter v. State

, 732 So.

2d 899, 902 (Miss. 1999) ). Further, this Court is cognizant of the fact that what may be

harmless error in certain situations becomes reversible error where the penalty is death. Id.11 ANALYSIS

1. Prosecution Conduct.

¶19. Hodges argues that the State, in conjunction with Assistant District Attorney Jim

Kitchens, knowingly and willfully concocted a line of examination to dem onstrate that Hodges

received a lenie nt sentence recommendation for his prior burglary charge. Hodges argues that

the State improperly crossed Johnnie Hodges at the sentencing hearing re garding the prior

burglary and that the State also impro p erly crossed Hodges about the same information.

Hodges claims that the State did not have an evidentiary basis for t hese questions. The

pertinent parts of the cross of Ms. Hodges during the sentencing phase is as follows:

Q. Ms. Hodges, you testified that Ms. Tatum had said something that she had

done everythin

g she could to keep him out of the RID program; is that

what you said?

A. That’s what she said to me the day she found her son dead. Yes, she did

say that to me.

Q. But actually what happened was Ms. Tatum had told the defense counsel

for your son back when he plead guilty back in November of 1998 that

she did want him to go to the RID program, hadn’t she?

A. You asked me was I there. I was there. All I know I heard the

prosecuting attorney said that Ms. Tatum said she wanted Quintez to have

seven years in the pen.

. . . Q. Isn ’t it true that Mr. Kitchens representing the State asked the judge, not

this court but another judge, asked the judge to give yo u r son 15 years in

the penitentiary? Isn’t that what he asked him to do or do you recall?

A. I don’t recall. All I heard is seven years.

Q. And isn’t it true that the information was p rovided to the Court by your

son’s lawyer that Ms. Tatum had requested that this defendant be

sentenced instead to the RID program?

A. I didn’t hear that either.

Q. Of cours e, Ms. Tatum would have been interceding on behalf of your son

if that were true, is that not correct?

A. I don’t know. I didn’t hear none of that.12

The pertinent parts of the cross of Hodges during the sentencing phase is as follows:

Q. And you plead guilty to a charge of burglary of Ms. Tatum’s house; is that

right?

A. Yes, sir.

Q. And during the course of that pl ea process, at one point in time your

lawyer stood up and told the judge that Ms. Tatum did not want y ou to go

to the penitentiary, didn’t he?

A. Not in my presence.

Q. You didn’t see that?

A. No, sir.

Q. Isn’t it true that also the Assistant District A ttorney who was handling the

case, Jim Kitchens, stood up and affirmed that that was so; that that was,

in fact, what Ms. Tatum requested? Didn’t he do that?

A. No, sir.

Q. You don’t recall that happening at all?

A. No, sir.

Q. Do you recall that the State of Mississippi asked and sought that you be

sent to the penitentiary for 15 years? Do you recall that?

A. I didn’t know nothing about that.

Q. You didn’t know nothing about that eithe r. But you know that the judge

in this instance agreed

and thought it best to sentence you to the RID

program to give you a chance; is that not correct?

A. Yes, sir.

Q. And he gave you a chance, didn’t he?

A. Yes, sir.

Q. He gave you a big break, didn’t he?

A. I ain’t going to say it’s a big break.

Q. You don’t think that being charged by thre e indictments with three

burglaries and one sexual assault battery getting to go to the RID

program was a break? You don’t think so?

A. Well, those charges was not proven.

¶20. In rebuttal the State called Assistant District Attorney Jim Kitchens, who participated

in the prior burglary charge and plea hearing, to tes tify about the plea agreement and hearing.

Hodges claims that the entire testimony of Assis tant District Attorney Kitchens was false.

Hodges claims that the falsity of the testimony is support ed by comparing Kitchen’s testimony

with the court transcript of the plea hearing for the prio r burglary. Hodges attaches this prior13

plea hearing as an e xhibit to his brief. However, the evidence that Hodges submits in support

of this claim, consisting of the prior burglary plea hearing, is not contained in the trial record

of the ca se sub judice. This Court has denied Hodges’ motion to expand the record to include

this information. Therefore, consideration of this evidence is barred. This Court has

repeatedly h

eld, “we will not consider matters which do not appear in the record and must

confine ourselves to what actually a p pears in the record. Moreover, we cannot decide an issue

based on assertions in the briefs alone; rather, issues must be proven b y the record.” M edina

v. State , 688 So. 2d 727, 732 (Miss. 1996).

¶21. Hodges argues that acc ording to Branch v. State , 882 So. 2d 36, 49 (Miss. 2004), this

Court is allowed

to consider such extraneous evidence not in the record. However, this Court

in Branch clearly set forth that such appendices which w ere not part of the trial record were

to be considered only on the Atkins and ineffective assistance of counsel issues. Here, during

oral argument, defense counsel conceded that he was not pursuing thi s issue as ineffective

as sistance of counsel, but rather was doing so under the theory of prosecutorial misconduct.

Also, this Court has recently a mended Rule 22 of the Mississippi Rules of Appellate

Procedure. Even though this amendment does not apply to the case sub judice, this Court

holds that the plea hearing, which is not in the record, is barred from consideration and Branch

does not allow this Court to consider such extraneous evidence. To make it clear what this

Court can consider on direct a ppeal in future cases, Rule 22 has been amended to state that

“ [i]ssues which may be raised in post-conviction proceedings may also be raised on direct

appeal if such issues are based on facts fully apparent from the record . M.R.A.P. 22

(emphasis added).14

¶22. Furthermore, no objections were made during the cross of Johnnie Pearl Hodges or

Hodges. Hodges is also procedurally barred because this issue was not raised at trial. S ee

Moawad v. State

, 531 So. 2d 632, 634 (Miss. 1988) (trial judge cannot be put in error on

matter not presented for decision); Walker v. State

, 823 So. 2d 557, 561 (Miss. Ct. App.

2002) (failure to raise issue at trial court level bars consideration at ap pellate level). Because

this issue is ra ised in the direct appeal of a capital case, this Court will consider the merits of

Hodges’ argument without considering the extraneous evidence.

¶23. Hodges argues that the State did not have any evidentiary basi s to ask those questions

on cross. This Court has stated that it is inflammatory and extremely prejudicial for

questioning without eviden tiary basis. H

osford v. State

, 525 So. 2d 789, 793 (Miss. 1988).

However, the State did offer the testimony of Assistant Distri ct Attorney Jim Kitchens about

the prior plea ba rgain. The State specifically asked Kitchens the same questions that were

asked during the cross of Ms. Hodges and the defendant. The State produced the testimony that

proved there was an evidentiary basis for the questions elicited duri ng the cross of Ms. Hodges

and the defendant.

¶24. Hodges also claims that all of Kitchens’ testimon y was false and that the knowing use

of false evidence deprived Hodges of a fair trial and due process. To prevail on this due

process claim, Hodges must show that “(1) the testimony was false, (2) the testimony was

material to th

e verdict, and (3) the prosecutor knew or believed the testimony to be false.”

Westley v. Johnson

, 83 F.3d 714, 726 (5 th Cir. 1996) (citing United States v. Blackburn , 9

F.3d 353, 357 (5 th Cir. 1993)). Hodges has not proved these elements. He has not offered any

proof that Kitchens’ testimony was false, that it was material to the verdict or that the State15

knew tha t it was false. Hodges, in his brief, claims that it is false but offers nothing to support

this claim nor were there any objections to this testimony during the sent encing phase.

Therefore, this issue is without merit.

2. Prosecutor’s Closing Argument.

¶25. Hodges asserts that the State made inappropriate remarks in a portion of the closing

argument at the sentencing phase by referring to the World Trade Cente r attacks, which

occurred during the course of Hodges’ trial, and Testament Biblical teachings. Hodges argues

that these comments are plain error that affected the verdict and deprived Hodges of a fair and

impartial trial. He claims that the State made these references to encourage the jurors to use

the sentencing o f Hodges as a way to vent their anger over the 9/11 attacks and to bring down

the power of God.

¶26. The State correctly argues th at none of these comments made in the closing were

contemporaneo usly objected to and are therefore barred from consideration. Simmons v.

State

, 805 So. 2d 452, 489 (Mis s. 2001). This Court has held that the failure by defense

counsel to contemporaneously object to a prosecutor’s rem ark at trial bars consideration of

prosecutorial misconduct allegations on appeal. D avis v. State

, 660 So. 2d 1228, 1255 (Miss.

199 5). However, the rule governing preservation for review provides that if an appellant raises

for review an issue not raised in the plead ings, transcript, or rulings, the appellant must have

preserved the iss ue by raising it in a motion for new trial. Miss. Code Ann. § 9-13-31 (Rev.

2002); J ackson v. State

, 423 So. 2d 129, 131 (Miss. 1982). The rationale for this rule is

based on the poli cy of giving the trial judge, prior to appellate review, the opportunity to16

consider the alleged error. H oward v. State

, 507 So. 2d 58, 63 (Miss. 1987). Hodges did

raise this issue in his motion for a new trial. Therefore, Hodges is not procedurally barred

from raising this error on appeal.

¶27. This Court has stated that “although parties are given great latit ude in closing arguments

an improper closing argument may constitute reversible error if the natural and probable effect

of the prosecuting attorney’s

. . . argument created unjust prejudice against the accused

r esulting in a decision inflated by prejudice.” H orne v. State

, 825 So. 2d 627, 640 (Miss.

2002) (citing Dunaway v. State

, 551 So . 2d 162, 163 (Miss. 1989)). This Court has also said

that “counsel may draw upon literature, history, science, religio n, and philosophy for material

for his argument.” Berry v. State , 703 So. 2d 269, 281 (Miss. 1997).

¶28. Hodges contends that the following part of the State’s closing argument compared him

to terrorists, was improper, affected the verdict and deprived him of a fair and impartial trial:

I think counsel said that in this part icular situation that a killing for a killing

doesn’t necessarily show that killing is wrong. I would disagree. I think to do

otherwise cheapens the value of life. Each and every one of you have had your

own tho ughts, for example, of the World Trade Center that’s happened this

week; and what have you thought about what should occur to those people who

created that situation? You know what you thought and you know why you

thought it. The reason you think that, ladies and gentlemen, is because there are

some people who literally do not understand anything e lse. You know, when I

was young I for a long time th ought God was not fair, and I thought that because

when yo u would read in Exodus about Moses and you would see where every

time Pharaoh made his mind up to let the people go the Bible would say, And

God hardened his heart. I thought that’s not fair. How can somebody stand

against God? How could Pharaoh justly be punished if God was the one

hardening his heart? One day I was reading in Romans Chapter 9, if memory

serves me correctly, and foun d these verses which were right on point because

Paul says, What if God willing to show his power to the nation set up for hims e lf

vessels of wrath

fit only for destruction? Ladies and gentlemen, there are those

that walk among us that are vessels of wrath fit only for destruction.17

However, “in order to make an appr opriate assessment, the reviewing court must not only

weigh the impact of the prosecutor’s remark, but must also t ake into account defense counsel’s

opening salvo.” S immons v. State

, 805 So. 2d 452, 490 (Miss. 2001) (quoting Edwards v.

State

, 737 So. 2d 275, 299 (Miss. 1999)). Therefore, we must also look to the defense’s

clos ing argument in order to make an appropriate assessment. The defense counsel argued, in

pertinent part,

Ladies and gentlemen, what you’re being asked to do when you are asked to

impose the death penalty, I mean, you are really bei ng asked to play God. You

are being asked to exercise the wisdom, the compassion, and to make a de cision

to put somebod y to death and you’re being asked to do that, and I know that in

good conscious you will consider this decision.

. . . This is not a case where somebody took a n axe and hacked somebody to pieces.

This is not a case where a man went in and stabb ed an 85 year old woman 55

times. You know, there are cases out there like that. Y’all read the paper. Y’all

watch TV. You’ve seen it. This is not that kind of case I submit.

. . . You know, ladies and gentlemen, some of you might be of the persuasion, and

I’ m not trying to appeal to your religious convictions. I really think that those

things are private. I think that your religious beliefs and I will submit to you

those are your own, but there have been throughout criminal law religious

themes have played a prominent role. I mean, you probably know one of the

most familiar one, An eye for an eye and a tooth for a tooth. That is one that

some people adhere to very strictly, you know. You take an eye, you ought to

give up your eye. I would submit to you, ladies and gentlemen, that that’s not

going to help anything in our society by putting somebody to death.

. . . If you sentence this man to death, I’d submit to the jury, ladies and ge ntlemen,

it’s going to rest on you. I wouldn’t want to go upstairs. I believe in God. Y’all

don’t have to. It’s a free country. You can believe anything you want to. I

would n’t put down anybody’s views, but I wouldn’t want to go up to my Maker

knowing that part of my decision in the name of the State cause the death of a

man.

¶29. There is no merit to Hodges’ argument. With regard to the prosecutor’s biblical

reference, this Court has stated that counsel may draw religion material into his argument.18

Berry

, 703 So. 2d at 2 81. Defense counsel made use of Biblical references in his own closing

arguments as well, which renders his position highly tenuous . Defense counsel, in the case sub

ju dice, actually put the jury in the role of God. The comments by the State were in rebuttal to

defense counsel’s own use of biblical references. This Court has even upheld biblical

references during closing argument where the prosecutor has quoted scriptures saying that the

Bible justifies the death penalty. Doss v. State , 709 So. 2d 369, 399-400 (Miss. 1996). When

read in context with the defense’s closing, the State’s comments did not unfairly prejudice

Hodges.

¶30. With regard to the mention of the World Trade Towers, Hodges contends that the State

impermis sibly compared him to the terrorists. First of all, the defense counsel himself stated

that this was not a case where somebody was hacked to death by an axe or stabb ed 55 times.

He also stated that the jury reads the papers, watches TV, has seen bad cases and that this was

not that type of case. The State, in rebuttal, made one reference to the World Trade Towers.

This Court has upheld much stronge r arguments. For example, in A hmand v. State

, 603 So.

2d 843, 846-47 (Miss. 1992)

, the prosecutor, during closing argument, made r eferences to

hostages and prisoners of war. This Court held:

Remembering the wide latitude afforded prosecutors in closing arguments, the

comments by the State when arguing for a conviction of Abdusabr Ahmad were

not improper. Taken in context, the referral to prisoners of war was part of the

f ree play of ideas, imagery, and personalities allowed in closing arguments. The

referral to p risoners and hostages does not vilify Abdusabr Ahmad. It is a

characteriza tion of I.A.'s position on the day in question. It is not name-calling

o r a label on Abdusabr Ahmad's overall character. The State did not state that

Abdusabr Ahmad was an Arab captor. The State did not even compare Abdusabr

Ahma d to Arab captors. The State simply compared I.A.'s emotions to that of

a prisoner of war or hostage.19

Id. This is very similar to the case sub judice. The State did not compare Hodges to terrorists.

Even if the State was comparing Hodges to terrorists, this Court has upheld instances where

the State has compar ed the defendant to notorious criminals. For example, in B allenger v.

State

, 667 So. 2d 1242, 1269-70 (Miss. 1995)

, the prosecutor compared the def endant's

participation in the crime to that of Charles Manson. This Court held that “[c]onsidering the

wide latitude given to attorney on closing argumen ts it can not be said that these comments

were so improper as to require reversal.” Id. at 1270. As was the case in B allenger

, the

prosecutor here never called Hodges names or personally vilified him. Unlike B allenger

,

Hodges’ crime was not compared to that of a notorious criminal. In W ilch er v. State

, 697 So.

2d 1087, 1112 (Miss. 1997), this Court upheld the prosecutorial comment during closing in

which they compared the defendant to a “mad dog”. This Court said that the prosecutorial

comment must be considered in context and the defense chose to us e imagery to compare

Wilcher to a rabbit and the State, in response, used imagery that it obviousl y found more

appropriate and compared Wilcher to a “mad dog”. Id.

¶31. Considering the wide latitude given to attorneys for closing arguments and considering

the State’s comment in reference to the defense’s own closing, Hodges’ arguments are without

merit and there no unfair prejudice.

3. Evidence of Prior Criminal Charges.

¶32. Hodges cl

aims that the trial court erred in allowing the prosecution, oncrossexamination in the sentencing phase, to refer to Hodges’ two escape charges a nd his previous

arrest for the burglary of a school in 1997 and burglary and attempted sexual battery in 1998.20

He asserts that this vio lates the Mississippi Rules of Evidence and Miss. Code Ann. § 99-19-

101, as evidence of bad acts is not one of the eight enumera ted aggravating factors admissible

in capital sentencing trial and that they were not relevant to any of the statutory aggravating

factors. Hodges also claims that during the testimony of Hodges the court erred when it

received int o evidence the actual indictment for the previous burglary and sexual battery

charge. Hodges argues that the indictment itself could not be used for impeachment or

rebuttal.

A. Admission of Prior Bad Acts During Cross-Examination

1. Cross-Examination of Lisa Hodges

¶33. During direct examination, Hodges’ sister, Lisa Hodges, testified that Hodges went to

church and Sunday school and that he was a good kid that helped other people. She stated that

Hodges did not f

ight and he obeyed his parents. She characterized him as being a nice, young

boy growing up who had respect for his elders and was not violent towa rds other people. On

cross-examination, the Stat e sought to discredit this testimony. Hodges’ sister was asked

whether she knew that he had escaped from t he jail twice and whether escaping from jail shows

any respect. She stated that “no” it did not show respect for authority.

¶34. The State argues that this asserted error is procedurally barred because defense c ounsel

never raised these issues during the sentencing phase. During the cross-examination, the

defe nse counsel did object to this line of questioning. However, their objection did not state

that they were objecting because it was improper character evidence. The defense, when he

objected, said “we are going to object to that testimony. That’s nothing that’s been revealed21

anywhere.”

This Court has stated that when the objecting party does not state with some degree

of certainty the ground on which the objection is made, and fail ure to articulate some other

available ground acts as a waiver as to the unstated basis. M aterials Transp. Co. v. Newman

,

656 So. 2d 1199, 1203 (Miss. 1995). Failure of the defense counsel to articulate the ground

upon which the objection is made, acts as a waiver. However, because this issue is raised in

the direct appeal of a capital case, this Court will consider the merits of Hodges’ argument.

¶35. The prosecution has no right to introduce evid ence of wrongs and bad acts to prove

Hodges' character or to sh ow he acted in conformity therewith, unless it is competent rebuttal

evidence in the face of the showing of Hodges’ good character made on direct exam ination of

this witness. Hansen v. State

, 592 So. 2d 114, 148 (Miss. 1991) (citing Simpson v. State

, 497

So. 2d 424, 428-29 (Mis s

. 1986); Winters v. State

, 449 So. 2d 766, 771 (Miss. 1984)).

M.R.E. 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith. It

may, however, be admissible for other purposes such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.

The State questioned Hodges’ sister about a prior bad act, the two attempts to escape jail.

On direct examination, Hodges’ sister testified that Hodges’ character was good, that he

respected his elders, did not disobey his parents, and that he was not a violent person and

never fought. Her direct examination testimony opened the door to the State to ask these

questions. There was testimony on direct that he was a good boy that respected his elders.

The introduction of the two prior escapes from the jail was not error.22 2. Cross-Examination of Chris Hodges

¶36. Du

ring direct examination Chris Hodges testified that Hodges was soft spoken, easy

going, never fo ught, was never disruptive and he never defended himself. Chris stated that

Hodges was the type of person who would avoid conflict. He stated that Hodges was a good

person who would not have done this type of crime. Chris claimed that Hodges’ troubles were

the direct resul

t of his relationship with Cora. Chris specifically testified that Hodges did not

have problems with authorities prior to the time that he got arr ested and charged with burglary.

On cross-examination, t

he State sought to discredit this testimony. Chris stated that Hodges

did not have problems with the authorities prior to his burglary of Cora’s house. He also stated

that his problems stemmed from his relationship with Cora. On cross the State asked whether

he knew that Hodges was charged with burglary of a school and burglary of another house along

with sexual battery, all of which happened prior to the burglary of Cora ’ s house and had nothing

to do with his relationship with Cora.

¶37. As stated previously, the prosecution ha s no right to introduce evidence of wrongs and

bad acts to prove Hodges ' character or to show he acted in conformity therewith, unless it is

competent rebutt al evidence in the face of the showing of Hodges’ good character made on

direct exam

ination of this witness. Hansen

, 592 So. 2d at 148. On direct examination, Chris

testified that Hodges’ character was good and that he was not disruptive and not the kind of

person to commit this crime. He also testified that Hodges did not have problems with the law

prior to the charge of burglary of Cora’s house and that the problems with the law stemmed

from his relationship with Cora. This direct testimony opened the door to bring in the prior

bad acts that oc curred prior to the burglary of Cora’s house and the bad acts that had nothing23

to do with Cora. The introduction of these other burglaries and the sexual battery was not

error.

3. Cross-Examination of Sharon Green

¶38. During direct examination, Sharon Green, Hodges’ sister, testified that Hodges was

never any trouble, was a normal child and never got into fights. On cross examination the State

asked Sharon whether she was aware of the other difficulties he had, namely the burglary of the

school, and the burglary and sexual assault of another victim. However, the defense never

objected to these questions during the cross-examination. The law in Mississippi mandates

that counsel must contemporaneously object to inadmissible evidence in order to preserve the

error for appeal. Rushing v. State

, 711 So. 2d 450, 453 (Miss. 1998); Lester v. State

, 692 S o

.

2d 755, 795 (Miss. 1997). This rule is generally applied to situations in which no objection

is made during trial and the issue is subsequently raised on appeal. C rosswhite v. St

ate , 732

So. 2d 856, 861 (Miss. 1998). This is exactly what we have in the case sub judice. Defense

counsel never objected to this evidence during the questioning and now they are raising it on

appeal. This issue has been waived and was not preserved for appeal.

¶39. Procedural bar as ide, this issue is without merit. As stated previously, the prosecution

has no right to introduce evidence of wrongs and bad acts to prove Hodges’ character or to

show he acted in conformity therewith, unless it is competent rebuttal evidence in the face of

the showing of Hodges’ good character made on direct examination of this witness. Hansen

,

592 So. 2d at 148. Her direct examination testimony opened the door to the State to ask these

questions regarding

Hodges’ previous crimes. Furthermore, this evidence was already placed

before the jury during the cross of Chris Hodges.24

B. Statutory Aggravating Factors and Prior Bad Acts

¶40. Ho dges also argues that the admission of these prior bad acts were prohibited, since

they were not relevan

t to any of the statutory aggravating factors enumerated in Miss. Code

Ann. § 99-19-101(5). Hodges alleges that the State is only allowed to offer evidence that is

relevant to the statutory

aggravating circumstances. However, Miss. Code Ann. § 99-19-

101(1) provides that at the senten cing hearing “evidence may be presented as to any matter that

the court deems relevant to sentence, and shall include matters relating to any of the

aggravati ng or mitigating circumstances.” This Court has stated that the statute “does not limit

the evidence that can be presented at the sentencing phase to evidence relevant to the

aggravating circumstances.” West v. State , 820 So. 2d 668, 670 (Miss. 2001). As discussed

above, these prior bad acts were introduced when the defense opened the door to Hodges’

character. Since § 99-19-101(1) allows any evidence that the court deems relevant to sentence

and because these acts were relevant to rebut the direct testimony of Hodges’ character, this

assignment of error is without merit. This Court has also held that “[t]he State is allowed to

rebut mitigating evidence through cross- examination, introduction of rebuttal evidence or by

argument.” Wiley v. State

, 750 So. 2d 1193, 1202 (Miss. 2000) (quoting Turner v . State

, 732

So. 2d at 95 0). As stated previously, these prior bad acts were admissible as proper rebuttal

evidence. Therefore, this issue is without merit.

C. The Introduction of the Actual Indictment During CrossExamination of the Defendant

¶41. Hodges also claims that the trial court erred when it r eceived into evidence the actual

indictme n t for the previous burglary and sexual battery charge. Hodges argues that the25

indictment itself co uld not be used for impeachment or rebuttal and that its use violates with

the rules of evidence.

¶42. On direct examination, during the sentencing phase, Hodges was asked “it’s true that

in the past you’ve been charged with some other crimes, isn’t it?” Hodges answered this

qu estion saying that he had only been charged with one other crime, which was the burglary of

Cora’s house. Hodges testified that he was charged with that one other crime and he served

his time in the RID program. On cross-examination, the State asked “you testified that you

were charged only with one ch arge; is that correct?” Hodges again said that he had only been

charge d with one crime. The State then asked Hodges whether he recalled the other three

c rimes, the burglary of the school and the burglary and sexual assault of another female victi m

.

Hodges said that he did not recall the three other crimes. The State then handed Hodges a copy

of the indictment which

showed one of the crimes and Hodges said that he did not recognize

it. The State then showed Hodges another indictment which showed the burglary of the other

victim’s house and the attempted sexual battery of the other victim. Hodges then admitted that

he was charged with these other crimes . The State moved to introduce these indictments into

evidence in which the Court allowed. Hodges did not object to the introduction of these

indictments.

¶43. “If no contemporaneous objection is made, the error, if any, is waived. ” Walker v.

State

, 671 So. 2d 581, 597 (Miss. 1995) (citing F oster v. State

, 639 So. 2d at 1270). Since

Hodges never objected to the introduction of these indictments, the issue is procedurally

barred. Procedural bar aside, this issue is without merit.26

¶44. Mississippi Rule of Evidence 608 provides in part:

(b) Specific Instances of Conduc t. S pecific instances of the conduct of a

witnes s, for the purpose of attacking or supporting his credibility, other than

conviction of crime as provided in rule 60 9, may not be proved by extrinsic

evidence.

This Court has held that “specific instances of conduct under our Rules of Evidence may

not be proved by extrinsic evidence for impeachment purpose s; they may only be inquired

about on cro ss-examination.” J ackson v. State

, 645 So. 2d 921, 923 (Miss. 1994) (citing

M.R.E. 609 & Lewis v. State

, 580 So. 2d 1279, 1287 (Miss. 1991) (emphasis omitted)). In

Jackson

, the State attempted to impeach a defense witness with extr insic evidence of specific

inst ances of that witness’ conduct. 645 So. 2d at 923. This Court held that “such attempts at

impeachment are clearly forbidden by Rule 608(b).” I d. at 923-24. However, in J ackson

, this

Court held that the rule violation did not rise above harmless error. I d. at 924. “We are not

required to reverse a case based solely upon the showing of an error in evidentiary ruling. A

denial of a substantial right of the defendant must have been affe cted by the evidentiary ruling

. . .” Id. (citing Newsom v. State , 629 So. 2d 611, 612 (Miss. 1993)).

¶45. Although the introduction of the indictment was improper impeachment evidence, such

error was harmless. The jury, on many previous occasions throughout the sentencing phase,

heard testimony regarding these other crimes. Hodges was not denied a substantial right by

the introduction of this indictment.

¶46. The State argues that the introduction of this indictment was not improper because it

was used to rebut Hodges’ inferences and direct statements that his prior criminal history was27

insignificant. Indeed, this Court has held that “[t]he State is allowed to rebut mitigating

evidence through cross-examination, introduction of rebuttal e vidence or by argument.” Wiley

v. State

, 750 So. 2d 1193, 1202 (Miss. 2000) (quoting Turner v. State

, 732 So. 2d at 950).

¶47. Notwithstanding the procedural bar, this issue is without merit.

4. Assistance of Counsel.

¶48. Hodges alleges that he was denied effective assistance of counsel under Strickland

v. Washington

, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), during all

stages of his trial. The State challenges Hodges’ exhibits which were not part of the trial

record. According to the State such exhibits are barred from consideration. However, this

Court in Branch v. State

, 882 So. 2d 36, 49 (Miss. 2004) , noted that M.R.A.P. 22 (b) states

that

[i]ssues which m

ay be considered in post-conviction proceedings may also be

raised on direct appeal. Where the appellant is represented by counsel who did

not represent the appellant at trial, the failure to raise such issues on direct

appeal shall constitute waiver barring consideration of the issues in postconviction proceedings.

Here Hodges was represented by Carrie Jourdan for two years. Twenty-one days prior to trial,

Hodg es replaced Jourdan for Michael Miller. The Office of Capital Defense Counsel was

appointed for

this direct appeal. “If new counsel on direct appeal is required to assert

collateral claims, there

must be an opportunity to submit extraneous facts and discovery and

evidentiary hearing to develop and prove the allegatio ns.” Id. See also Brown v. State

, 798

So. 2d 481, 491 (Miss. 2001) (citing Smith v. S tate , 477 So. 2d 191, 195 (Miss. 1985) and28

Turner v. State

, 590 S o. 2d 871, 874 (Miss. 1991)). In B ranch

, this Court went on to explain

that

there is conflicting authority on whether this Court sho uld apply the procedural

bar in a post-conviction relief case rai sing ineffective assistance of counsel on

direct appeal. G oodin v. State

, 856 So. 2d 267, 279 (Miss. 2003). Goodin was

then permi

tted to proceed on the issue of ineffective assistance of counsel and

was granted an evidentiary hearing to determine whether he was mentall y

retarded within the meaning of Atkins

. Although this case is a direct appeal,

B ranch is represented by counsel who did not represent him in the trial cour t

. Branch must raise Atkins and ineffective assistance of counsel issues in this

direct app eal or he will be barred from doing so in subsequent appeals.

Therefore , we will permit Branch to proceed with these issues, and we will

consider the additional documents supplied in Appendices to Original Brief of

Appellant.

882 So. 2 d at 49. Therefore, this Court will consider the exhibits attached to Hodges’ brief,

which were not part of the record.

¶49. The ineffective assistance of counsel issue will be addressed in two parts: the

culpability phase and the penalty phase. The standard for evaluating an ineffective assistance

of counsel claim is well settled:

Where ineffective assistance of counsel is alleged, “the benchmark [ ] must be

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

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

result.” S trickland v. Washington

, 466 U.S. 66 8, 686, 104 S. Ct. 2052, 2064,

80 L. Ed. 2d 674 (1984). In addition, the defendant must show that the

counsel’s performance was deficient and that th e deficiency prejudiced the

defense of the case

. Id. at 687, 104 S. Ct. 2052. In order to show prejudice

under the Strickland standa rd, the [defendant] must show “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been differe nt. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” I d. at 694, 104

S. Ct. at 2068. A defendant must make both showings under Strickland,

otherwise, “it cannot be said that the conviction or death sentence resulted from

a breakdown in the adversary process that renders the result unreliable.” J ones29

v. State

, 857 So. 2d 7 40, 745 (Miss. 2003) (quoting S tringer v. State

, 454 So.

2d 468, 477 (Miss. 1984)).

Branch

, 882 So. 2d at 51-52 (citing H arris v. State

, 861 So. 2d 1003, 1018 (Miss. 2003)).

Trial counsel is presumed competent, and the burden of pr oving that counsel’s performance

was deficient and prejudicial falls upon the appellant. H ansen v. State

, 649 S o. 2d 1256, 1258

(Miss. 1994). There is no constitutional right then to errorless counsel. S tack v. State

, 860

So. 2d 687, 696 (Miss. 2003); C abello v. State

, 524 So. 2d 313, 315 (Miss. 1988); Mohr v.

State

, 584 So. 2d 42 6, 430 (Miss. 1991) (right to effective counsel does not entitle defendant

to have an attorney who makes no mistakes at trial; defendant just has right to have competent

counsel).

¶50. During trial counsel mus t make strategic discretionary decisions including whether or

not to file certain mo t ions, call certain witnesses, ask certain questions, or make certain

objections. C ole v. State

, 666 So. 2d 767, 777 (Miss. 1995). In gauging counsel’s

perfo rmance, we must make every effort “to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct , and to evaluate the conduct

from counsel’s perspective at the time.” S tringer v. State

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

(citing Strickland , 466 U.S. at 689, 104 S.Ct. 2052).

A. Culpability Phase

¶51. During the culpab ility phase, Hodges contends that he received ineffective assistance

of counsel by his counse l’s: (1) failure to present evidence in support of the motion to

suppress an unconstitutional confession; (2) failure to investig ate critical prosecution30

witnesses and to confr o nt those witnesses; and (3) failure to know the law applicable to this

case and to properly advise Hodges regarding plea bargaini ng. Each sub-issue will be discussed

separately.

1. Evidence in support of motion to suppress confession

¶52. Hodges claims that he was coerce d into giving the confession and the defense counsel

rendered ineffective assista n ce of counsel in failing to present evidence to support this claim

and to impeach the law enforcement witness. Hodges claims that the officer made promises

to him before the confession which mad e him give the statement and that he was not advised

of his right to an attorney. It is clear from the record that Hodges was informed of his

Miranda ri

ghts which included his right to an attorney and the rights form that Hodges signed

was introduced as evidence during the trial.

¶53. Af ter fleeing to Alabama, Hodges returned to Mississippi and went to his mother’s

house. While at his mother’s house and before the police arrived Hodges voluntarily turned

himself in at the sheriff’s department. Before talking to Hodges, Kevin Pitre, an officer with

the Lownde s County Sheriff’s office, took out the standard rights form, read it to Hodges, gave

it to him to read, and then asked him if he unders tood it or had any questions before he signed

the form. Hodges read the form and signed it. Pitre testified that Hodges never indicated that

he had problems reading or understanding the contents on the form. Furthermore, there was

a space on the form entitled “problems reading and writing” and the answer to that w as “none.”

Hodges advised Pitre that he understood the form, wished to sign it and to make a statement.31

¶54. Hodges was then taken to the interview r oom where Pitre and Joe Young proceeded with

the interview. The statement was videotaped, and Hodges started telling them what had

happened. After Hodges was finished, Young asked Hodges to tell them again what had

happened and during the second time Young personally wrote the statement out as Hodges was

talking. After Young wrote out the statement he gave it to Hodges, told him to read it and if

there was something he did not understan d or something that needed changing to let him know.

Hodges then read the statement, initialed each page and signed it at the bottom.

¶55. During the hearing on the motion to suppress the confession, Pitre testified that Hodges

was not intimidated or coerced in any way. Pitre also testified that he did not offer any

rewards, promises or inducements. During cross-examination he was asked whether he told

Hodges that he would recommend a lesser sentence if he gave th e statement. Pitre testified

that he did not tell Hodges that he would recommend a lesser sentence or that he would get a

lesser sentence. In this appeal, Hodges has submitted an affidavit of Michael Miller, his trial

attorney. In this affidavit Miller states that Hodges told him that the detectives said that he was

going to be charged with manslaughter. Hodges also submits the transcript of the preliminary

hearing and claims that Pitre’s testimony was inconsistent. Hodges claims that during the

pr eliminary hearing Pitre testified that Hodges asked him what would be the sentence if he was

convicted for capital murder and then during the suppression hearing Pitre said that Hodges did

not ask any questions.

¶56. To succeed on this claim of ineff ective assistance of counsel, Hodges must first show

that counsel’s performance was deficient. Hodges argues that defense counsel was ineffective

for failing to confront Pitre with his inconsistent testimony and by failing to introduce the only32

evidence in support of their mot ion, which was that Pitre told Hodges he would recommend

a lesser sentence of manslaughter if he gave a statement.

¶57. The first claim that Hodges raises was that his counsel was deficient because he failed

to confront Pitre with the inconsistent statement . The following is the relevant part of the

testimony of Pitre during the preliminary hearing:

When questioning him, he ask ed what would be the sentence for this if he was

convicted for capital murder for killing Isaac. He was advised of basically what

the state statute states the sentence could be . The maximum sentence could

carry a death penalty.

When he was advised of that, he advised

. . . Well, it could carry the death

penalty or life in prison. It could carry either one. At the time he was advised

of that, he said he would prefer to be just put to death. He said he didn’t want to

spend the rest of his life in prison.

The relevant parts of Pitre’s cross- examination during the hearing on the motion to suppress

that Hodges claims is inconsistent with the above is as follows:

Q. Ea rlier you testified that if there were rights that he did not understand

tha t you would explain them to him. Which rights did he not understand

on that form where you would put a check mark by all of them?

A. As I would read off the rights on each line, I would check it off as I would

read it to him, and when I han ded him the paper I asked him to read it. I

said, If any of this you don’t understand or have a question with, let me

know. He advised he understood and h e didn’ t have a question p rior to

signing the statement, the rights form.

Q. He didn’t have any question?

A. No, sir. He indicated he d idn’t have a quest ion o r didn’t have a problem

with the rights.

Q. Officer Pitre, are you telling the Court that you said nothi ng to him

regarding any

lesser sentence or any recommendation you would make

to him if he gave a statement to you?

A. No, sir, I didn’t say nothing to him.

Q. Nothing whatsoever?

A. No, sir.33

(emphasis added). Pitre did not give inconsistent testimony. During the preliminary hearing

Pitre stated that while they were questioning Hodges, he asked w hat the sentence would be if

convicted of

capital murder. During the motion to suppress, Pitre testified that Hodges had

no questions prior to signing the rights form. The question about the sentencing that Hodges

asked was during the actual questioning. During the motion to suppress, Pitre was referring

to whether Hodges had any questions before he signed the rights form which was before the

actual questioning. These were two very distinct points in time. Since Pitre did not make an

inconsistent statement, defense counsel was not defic ient. “Failure to raise meritless

objections is not ineffective lawyering.” B rown v. State

, 798 So. 2d 481 , 494 (Miss. 2001)

(citing Clark v. Collins , 19 F.3d 959, 966 (5th Cir. 1994)).

¶58. The second instance Hodges claims was ineffective was the failure to introduce the fact

that Pitre allegedly

told Hodges that if he made a statement he would recommend

manslaughter. The only evidence Hodges submits in support of this argument is an affidavit

from his trial attorney, Miller. In the affidavit Miller says that Hodges told him that he

beli eved he had been tricked into giving the statement to the police and that the detective told

him that he was going to be charged wi th manslaughter. The only way to introduce this

information was to put Hodges on the stand during suppression hearing. There is nothing in

the record that explains why Hodges’ counsel did not put Hodges on the stand during the

suppression hearing. His decision to keep Hodges off the stand during the suppression hearing

may have been a deliberate trial strategy. This Court cannot second guess Hodges’ attorney.

See Mohr v. State

, 584 So. 2d 426, 430 ( Miss. 1991). When evaluating the overall

performance of counsel, counsel mu st make strategic discretionary decisions including34

whether or not to fi

le certain motions, call certain witnesses, ask certain questions, or make

certain objections. C ole v. State

, 666 So. 2d 767, 777 (Miss. 1995). There is also a strong

presumption that the attorney's perfor mance was within the wide range of reasonable,

professional, and acceptable conduct. L eatherwood v. State

, 473 So. 2d 964, 968 (Miss.

1985).

¶59. Furthermore, Hodges was not arrested on suspicion of the murder. Hodges voluntarily

went to the polic e station, turned himself in and told the officers he wanted to make a

statement. He went to the police station by himself to tell the police what had happened.

Hodges was also informed of his right to testify during this h earing and Hodges elected not to

te stify. There is no evidence that Hodges was coerced into giving the confession when the sole

reason he voluntarily went to the police was to give the statement and to tell the police what

he had done. Defense counsel was not deficient for failing to introduce this information.

¶60. This Court holds that the first prong of Strickland was not met. Since Hodges’

attorney’s performance on this issue was not deficient, it is unneces sary to address the second

prong of Strickland

.

2. Investigate and confront critical prosecution witnesses

¶61. Hodges claims that counsel was ineffective for failing to investigate a critical

prosecution witness which would have provided impeachment evidence. Hodges claims that

the prosecut ion witness, Anthony Betts, was a critical witness in supplying evidence

concerning Hodges’ alleged intent to assault and if defense counse l would have checked with

the Lowndes County Circuit Clerk he would have discovere d compelling impeachment

evidence against Betts. Hodges argues that if the jury had known that Betts was a convicted35

felon and on probation at the ti me of his testimony they could have chosen to reject his

testimony. In support of this claim, Hodges submits the sentencing order which recites that

Betts pled guilty to burglary and was sentenced to the RID program. Hodges also submits an

order which suspended Betts’ seven-year term at the completion of the RID program and

placed him on probation for five years.

¶62. It has been recognized that adequate investigati on is a requisite of effective assistance.

Gray v. Lucas , 677 F.2d 1086, 1093 (5 t h Cir. 1982). See Wiggins v. Smith

, 539 U.S. 510,

123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Ru mmel v. Estelle , 590 F.2d 103, 104 (5th Cir.

1979) (per curiam); Ga ines v. Hopper , 575 F.2d 1147 (5th Cir. 1978) (per curiam). To

establish a constitutional violation, a defendant must show both a failure to investigate

adequately and prejudice arising from that failure. I d. See Washington v. Watkins

, 655 F.2d

1346, 13 62 (5th Cir. 1981). Even assuming that Miller failed to make an adequate

investigation, there is no prejudice a r ising from this failure. The defendant must show “that

there is a reasonable probability that, but for co unsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland , 466 U.S. at 694.

¶63. Anthony Betts testified that he had known Hodges for about three years. Betts also

stated that the weekend before the shooting Hodges told him that he was going to buy a gun and

kill somebody with it. Betts then said that he did not take Hodges seriously because he knew

he would never do anything like that. Betts then testified that on the night of the murder

Hodges was at his house and had talked to Cora on the phone. Betts testified that after talking

to Cora on the ph

o ne Hodges just sat there for about an hour and then left. On cross Betts

testified that after Hodges left hi s house he did not know where Hodges went or what happened1 There is absolutely no evidence that Betts received any special treatment. Betts

pled guilty to burglary. At the time of the burglary, Betts was a juvenile and this was his

first offense. He was sentenced to 7 years suspended and went to the RID program. After

36 after Hodges left his house. Excluding this testimony, there was still ample evidence of

Hodges’ guilt.

¶64. Hodges argues that Betts was a crucial witness in s upplying evidence concerning

Hodges’ alleged intent to assault. The only testimony Betts offered that may have been helpful

to the State was the fact that Hodges told him a week before the shooting that he was going to

buy a gun and shoot somebody. However, this did not show that Hodges, a week later, went to

Cora’s house with the intent to kill someone. Betts even stated that he knew Hodges would

never do anything like that and that he had no idea what happened that night. There was ample

evidence other than Betts’ testimony that Hodges comm itted burglary with the intent to assault.

In his con

fession, Hodges told the police that he broke into Cora’s house. In his confession

he said that he parked two houses down, walked around the house a co uple of times, went to

the back door and went inside the house. There was also evidence of forced entry through the

back door. Cora also testified that Hodges told her that he came to her house that night to

shoot her or her mother, if she had been there. Cora also testified that Hodges entered her

house uninvited wearing

black clothes, gloves, a ski mask and carrying a gun. The underlying

felony of burglary with intent to commit assault was established without Betts’ testimony.

Hodges has not shown

any prejudice for the failure to adequately investigate. Hodges argues

in his brief that had the jury been “infor med that Betts was a convicted felon on probation at

the time of his testimony and that he had gotten special treatment on sentencing for that

offense, 1 they very well cou ld have completely rejected his testimony.” As stated previously,completion of RID he was placed on probation for 5 years. Hodges argues that for his

previous burglary he was sentenced to 15 years suspended and went to the RID program and

since that was more harsh than Betts’ sentence, he must have gotten some leniency.

However, that was not Hodges’ first offense.

37 absent Betts’ testim

ony, there was ample evidence in the record. This issue is without merit.

3. Properly advise on plea bargain and applicable law

¶65. Hodges claims his counsel was ineffective for failing to properly advise him of the

sentenci ng possibilities. Hodges claims that this deprived him of any real opportunity to

consider the plea offer made by the prosecution. In support of this claim, Hodges submits an

affidavit which he states that Miller told him that if he were found guilty of murder he could

be sentenced

to life with parole, life without parole, or death. In the affidavit, Hodges also

states that Miller told him the State made a plea bargain of life without parole and if he had

know that life with parole was not an option he would have taken the plea bargain. He states

that he turned down the offer “b ecause I wanted to take my chances of getting a life with parole

sentence.”

¶66. Hodges h

as not established prejudice with respect to this failure to properly advise.

Hodges cannot prove that but for his attorney’s errors, he would have accepte d the plea offer

and he cites no evidence to indi cate that prior to his conviction he expressed any desire to

plead guilty. Hodges argues that he would have received a lesser sentence had he accepted the

plea agreement. The Eleventh Circuit has held that “given appellant’s awareness of the plea

offer, his afte

r the fact testimony concerning his desire to plead, without more, is insufficient

to establish that but for counsel’s alleged advice or inaction, he would have accepted the plea38

offer.” D iaz v. United States

, 930 F. 2d 832, 835 (11 t h Cir. 1991) (citing Johnson v.

Duckworth

, 793 F.2d 898, 902 (7 th Cir. 1986)). Hodges has not shown or established any

facts that, if proven, would entitle him to relief. All Hodges submits is his affidavit, after the

fact, that he would have accepted the offer but for counsel’s failure to properly advise. This

Court holds that this alone is “insufficient to establish that but for counsel’s alleged [failure

to properly advise], he would have accepted the plea offer.” I d. Therefore, this issue is

without merit.

B. Penalty Phase

¶67. Hodges contends that he received ineffective assistance of counsel during the penalty

phase by: (1) counsel’s failure to present available evidence in mitigation; (2) the trial court’s

denial of an overnight recess before closing argument; and (3) counsel’s failure to properly

prepare Hodges for his testimony. Each sub-issue will be discussed separately.

1. Mitigation Evidence

¶68. Hodges claims that counsel failed to present a vailable evidence in mitigation and that

he was prejudiced by counsel’s failure to request subpoenas for his sister, cousin, an expert

witness from

the State Hospital at Whitfield and to adequately confront Johnny Robbins, a

prosecution witness. In support of this claim, Hodges submits an affidavit from Miller, his

trial attorney, which states that since he had o nly a week to prepare for the trial he did not

focus on what mitigation witnesses would testify. However, Hodges fails to note that he fired

his court appointed attorney 21 days before trial and then hired Miller. Hodges also submits

the medical report from Whitfield, which was also contained in the record.

a. Expert witness from State Hospital39

¶69. The first claim Hodges raises is that counsel was ineffective for failing to subpoena an

expert witness from the state hospital. The State Hospital evaluated Hodges before trial and

was asked to render an o pinion on possible mitigating circumstances. Hodges argues that

defense counsel took the position that the report was n ot helpful when in fact it supported

several mitigating factors such as his limited education, his difficult re lationship with Cora and

drug use. He also argues that the expert could have given an explanation of the escapes from

jail which was already before the jury. He also argues that the expert could have explained the

mitigating circumstance of h is age and how the adolescent brain functions different than the

adult brain. Hodges argues that this evidence would have provided an explanation of why

adolescents are more impulsive than adults. However, Hodges fails to point out that at the time

of the murder, he was nineteen years old (legally an adult). Hodges now asserts that more

could have been done but he fails to explain how this report would serve to persuade a jury to

leniency in sentencing.

¶70. The Supreme Court has stated that

Strickla nd does not require counsel to investigate every conceivable line of

m itigating evidence no matter how unlikely the effort would be to assist the

defendant at sentencing. Nor does S trickland require defense cou nsel to

present mitigating evidence at sentencing in every case. Both conclusions

would interfere with the “constitutionally protecte d independence of counsel”

at the heart of St

rickland , 466 U.S. at 689, 104 S. Ct. 2052. We base our

conclusion on the much more limited principle that “strategic choices made

after less than complet

e investigation are reasonable” only to the extent that

“reasonable professional judgments support the limitati ons on investigation.”

Id. at 690-691, 104 S. Ct. 2052. A decision not to investigate thus “must be

directly assessed for reasonableness in all the circumstance s.” Id. at 691, 104

S. Ct. 2052.40

Wiggins v. Smith, 53 9 U.S. at 533, 123 S. Ct. at 2541. In the case sub judice, trial counsel

investigated the medical report. Trial counsel even talked to the expert witness at Whitfield

an d discussed the possibility of his testifying at the sentencing phase. Trial counsel gave the

doctor a copy of the letters that Cora had sent Hodges and a sked the doctor to examine the

letters. Trial counsel specifically asked the doctor to examine these letters to determine if the

letters changed his opinion on the mitigating factors. This additional information did not

chang e the doctor’s opinion and the decision not to call this doctor reflected reasonable

professional judgment.

¶71. Furthermore, to determine prejud ice it is required to compare the evidence actually

presen ted at sentencing with all the mitigating evidence Hodges now submits. N eal v. Puckett

,

286 F.3d 230, 241 (5 th Cir. 2002). “Stated to the point: Is this additional mitigation evidence

s o compelling that there is a reasonable probability at least one juror could reasonably have

determine that, because of [this additional evidence], death was not an appropriate sentence?”

Id.

¶72. During the sentencing phase, Hodges had five witnesses testify as to mitigating

circumstances. The first witness was Lisa Hodges, his older sister. She testified that she

helped r aise Hodges and that Hodges went to church, was a good kid, helped others, did not get

into fights and obeye d his elders. She also testified that Hodges was not a violent person. The

second witness was Raneece Hodges, his niece . She testified that she grew up with Hodges

because they were about the same age. She said that he would always obey his mother and that

he was a mama’s boy. She also testified that he had troubles at school when he transferred to

Caledonia High. The third witness during sentencing was Chris Hodges, his uncle. He testified41

that Hodges was soft-spoken, did not fight and when teased he would always avoid conflict.

The fourth witness was Sharon Green, another sister. She also testified that she helped raise

Hodges and he did not fight and he always clung to his mother. The last witness to testify

during sentencing was Hodges’ mother, Johnnie Pearl Hodges . She testified that Hodges was

a sickly boy growing up because of his asthma. She said that he never got into trouble as a little

boy. However, she testified that he started having trouble in school later on and was expelled

at Caledonia High and later dropped out of school. She testified that he did not have a close

relationship with his father and his t rouble began when he started dating Cora. The State

presented four aggravating factors for the jury to consider: (1 ) capital murder was committed

during the commission

of the crime of burglary; (2) capital murder was committed during the

commission of

the crime of kidnaping; (3) capital murder was committed by one who was

already under a sentence of imprisonment; and (4) capital murder was committed for the

purpose to avoid a lawful arrest.

¶73. The additional mitigating evidence that Hodges c laims the Whitfield expert could have

testified to was the fact of his limited education, his difficult relationship with Cora and drug

use. He also argues that the expert could have given an explanation of the escapes from jail

which was already before the jury. He also argues that the expert could have explained the

mitigating circumstance of his age and how the adolescent brain functions differently than the

adult brain. Hodges argues that this evidence would have provided an explanation of why

adolesce nts are more impulsive than adults. It is hard to say that the result of the proceeding

would have been different with this additional evidence. First of all, the fact that he had a

limited education was already before the jury. Hodges’ mother testified to the fact that he quit42

school and did not

graduate and did not finish his GED courses. His mother also testified that

his troubles began when he started seeing Cora, so the evidenc e of the difficult relationship

with Cora was already before the jury. Hodges also testified during the sentencing phase and

he had an opportunity to testify abou t his difficult relationship with Cora and his drug use. He

could have also explained why he escaped from jail. When asked during cross-examination

Hodges stated that he did not remember why he escaped from jail. Also the fact that

ado l escents are more impulsive than adults does not affect the outcome because Hodges was

nineteen when he commit ted capital murder. The only additional evidence that was clearly not

before the jury wa s the drug use. When comparing this with all the evidence that was

presented, no pr ejudice occurred. This additional mitigation evidence of drug use is not so

compelling that there is a reasonable probability at least one juror could reasonably have

dete rmine that death was not an appropriate sentence. Thus, had this witness been called to

testify, there is not a

reasonable probability that the result would have been different. This

issue is without merit.

b. Additional mitigation witnesses

¶74. Hodges also claims that counsel wa s ineffective for failing to subpoena Hodges’ sister

and cousin, which would have provided compellin g mitigation evidence. Hodges claims that

his sister, Joa nn Latz, would have testified that Hodges was teased as a child and that she would

have offered the only evidence of the lack of father/son relationship. Hodges also claims that

she could have augmented the testimony of a change in his behavior as he entered his teen years

and could have painted an accurate pictu re of the mother/son relationship that was never

explored.43

¶75. The facts here suggest that any additional character witnesses would have been

cumulative. Defense counsel offered the testimony of five character witnesses during

sentencing. Chris Hodges already testified that they teased him as a kid and he would avoid

conflict. Johnnie Hodges testified that Hodges did not have a relationship with his father. The

fact that his behavior changed and that he started having trouble in school was offered by at

least two of the witnesses. While each of these two additional witnesses might have been

willing to testify, none of them brought unique information to be considered about Hodges’

behavior. The additional testimony wou ld have merely echoed that which was already offered

at mitigation. In W

iley v. State

, 842 So. 2d 12 80, 1286 (Miss. 2003), this Court held that “the

recordreflects that evidence of all of the mitigating factors Wiley alludes to was introduced

d uring the sentencing trial by other witnesses and that there was no need for cumu lative

testimony.”

This is exactly the situation we have in the case sub judice. All of the additional

testimony Hodges alludes to was introduced during the senten c ing trial by other witnesses.

Thus, her testimony would have been cumulative.

¶76. Therefore, this additional evide nce is not of a nature to cast any doubt as to the

propriety of the jury's verdict and, as a result, this claim is without merit.

c. Victim impact statement

¶77. Hodges also claims that defense counsel was ineffective in f ailing to introduce the

victim impact statement of Bessie Tatum, the mother of Isaac and Cora Johnson. Hodges

argues that the jury was left with the i mpression that Mrs. Tatum wanted to see Hodges put to

death when the victim impact statement said that her preference was life in prison.44

¶78. Defense counsel’s decision not to introduce the victim impact statement during the

sentencing hearing may have been a deliberate trial strategy. This Court cannot second guess

Hodges’ atto rney. S ee Mohr v. State

, 584 So. 2d 426, 430 (Miss. 1991). When evaluating the

overall performance of counsel, counsel must make s trategic discretionary decisions including

whether or not to file certain motions, call certain witnesses, ask certain questions, or make

certain objections. C ole v. State

, 666 So. 2d 767, 777 (Miss. 1995). In the victim impact

statement Bessie Tatum states that “my wish is that he will be put away for life with no parole

so that he w ill not hurt anyone else. I do not believe in killing but if the Court choose to do

other wish than do so.”

The victim impact statement evidences the fact that she would not

object to Hodges being put to de ath. This clearly could have been a strategic decision by

defense counsel, and this Court has already stated that it would not second gu ess defense

counsel. Defense counsel was not deficient for failing to introduce this information.

d. Failure to adequately confront State witness Johnny Robbins

¶79. Hodges claims that defense counsel w as ineffective for failing to object to the State’s

introduction of the conviction and for faili ng to adequately cross-examine Robbins. Hodges

claims that counsel failed to conduct a pre-trial interview of this witness and failed to elicit

mitigation evidence from Robbins concerning Hodges’ characte r and behavior while serving

in the RID program.

¶80. Johnny Robbins served as a witness for the sole purpose of introducing Hod ges’

burglary con

viction into evidence at sentencing. This evidence supported the State’s aggravator

that the capital murder was committed while Hodges was under a sentence of imprisonment.

First, it was not ineffective for failing to object to the State’s introduction of a copy of the45

conviction. This Court has held that the admission of a sentencing order was an efficient way

to prove the under a “sentence of imprisonment” aggravator. J enkins v . State , 607 So. 2d

1171, 1180 (Miss. 1992). “Failure to raise meritless objections is not ineffective lawyering.”

Brown v. State

, 798 So. 2d 481, 494 (Miss. 2001) (citing Clark v. Collins , 19 F.3d 959, 966

(5th Cir. 1994)). Therefore, Hodges’ counsel was not ineffective for failing to object to the

introduction of the conviction.

¶81. Hodges also argues that defense counsel was ineffective for failing to adequatelycrossexamine Robbins. Hodges claims that mitigation evidence could have been elicited through

adequate cross-examina tion. Hodges claims that defense counsel could have questioned

Ro bbins about Hodges personally. In support of this claim, Hodges submits a report that states

that during the RID program Hodges was cooperative and made a good effort to fulfill the

requirements for graduation. However, there is no indication that Robbins knew Hodges

personally and could have t estified to this information. The only reason Robbins testified was

to i ntroduce evidence relating to the under imprisonment aggravator. During cross, defense

counsel was able to use this witness to show that the RID program is used for first-time, nonviolent offenders and to teach self-respect and discipline. Defense counsel was not deficient

in cross-examining Robbins. Even assuming that Miller failed to adequately cross-examine

Robbins, there is no prejudice arising from th is failure. The defendant must show “that there

is a reasona ble probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” S t rickland , 466 U.S. at 694. Any additional evidence

in mitigation was not of a nature to cast any doubt as to the propriety of the jury's verdict and,

as a result, this claim is without merit.46 2. Trial Court’s denial of overnight recess before closing argument

¶82. After the close of evidence at the sentencing phase defense counsel requested an

overnight recess in order to prepare for closing. The trial court denied this request and Hodges

now claims that this denial by the trial court ca used him to suffer ineffective assistance of

counsel. This is not an ineffective assistance of counsel claim to be analyzed under the

Strickland standard. “Ordinarily, trial judges have broad discretion in determining when trials

will begin and how long they will continue on any given day.” D ye v. State

, 498 S o. 2d 343,

344 (Miss. 1986). There is not a “bright line rule” as to when a trial judge should grant a

continuance or recess. H ooker v. State

, 716 So. 2d 1104, 1113 (Miss. 1998). This Court’s

analysis focuses upon the unique facts of each case. Id.

¶83. This Court has held that a denial for a re cess can deny the defendant the right to

effective assistance of counsel. T hornton v. State

, 369 So. 2d 505 (Miss. 1979). In

Thornton

, the State rested its case-in-chief at about 6:00 p.m. and the defense counsel moved

for a recess stating that he was exceedingly tired. Id. at 506. The trial judge refused to grant

the defendant’ s request for a recess. I d. Subsequently, the defendant was forced to put on his

defense which lasted until approximately 10:00 p.m. I d. The parties had to then submit their

objections to the submitted jury instructions and then make closing arguments. I d. Both sides

were given one hour for closing. I d. After making closing arguments, the defendant's attorney

became ill and was rushed to the hospital. I d. The case sub judice is clearly distinguishable.47

¶84. There is no evidence in the record of an undue burden upon counsel in continuing the

case to conclusion and no indication in the record that the ju ry had difficulty in proceeding

with the case. The culpability phase began on September 10, 2001, and the verdict was

rendered on the 13 th at 1 p.m. The sentencing phase began at 2 p.m. on September 13, 2001,

which was only the third day of the trial. Before closing argument in the sentencing phase, the

jury requested pizza for din n er. The jury was then sent to deliberate and was also given their

dinner at this time. The case was submitted to the jury around dinner time. The record does

not indicate when closing arguments be gan but if the case was submitted to the jury around

dinnertime it could not have been that late . The jurors never indicated that they were tired and

did not want to continue. As stated above, trial judges have broad discretion in determining

when trials will begin and how long they wil l continue on any given day. Based upon the facts

in the record, the trial judge did not abuse his discretion in denying d efense counsel’s request

for an overnight recess before closing arguments.

3. Properly prepare Hodges for his testimony

¶85. Defense counsel advised Hodges against testifying and explained to him the reasons

why he should not testify. After counsel advised Hodges, he chose to testify. Hodges now

claims that counsel

was ineffective for failing to adequately prepare him for his testimony.

This failure, according to Hodges, opened him up to all prior charges because counsel did not

explain the difference betwe en a charge and a conviction. In support of this claim Hodges

submits the affidavit of his trial counsel, Miller, in which Miller states that he did not have

time to prepare Hodges to testify.48

¶86. During the sentencing phase the court asked Hodges if he wanted to testify and Hodges

stated that he did not want to testify. When asked why he did not want to testify Hodges stated

that it was because the State “is trying to bring up the background and my situation and stuff.”

The Court then gave defense counsel a thirty-minute recess to enable defense counsel to talk

to Hodges about testifying. Hodges then informed the court that he wanted to testify. Hodges

now claims that he was not adequatel y prepared to testify. There is nothing in the record to

suggest that counsel did not discuss his testimony. They were given a thirty minute recess in

which to discuss whether or not to testify. Hodges was aware that if he testified, the State

could go into his criminal history. There is also no evidence that Hodges did not know the

difference between a charge and conviction. During direct examination Hodges testified that

he had only been charged with one other crim e - burglary of a dwelling (Cora’s house). He was

then asked if he had ever been convicted of any other crimes other than the burglary of Cora’s

dwelling and he said “no”. During cross the State brought out the fact that Hodges had also

been charged with other crimes.

¶87. The only thing alleged that was caused by this f ailure to prepare was the fact that Hodges

did not know the difference between a charge and a conviction and this caused his other charges

to come in during cr oss. Assuming that defense counsel was deficient because Hodges did not

know the differenc e between a charge and a conviction, Hodges has not shown that he was

prejudiced by this information and that the result of the proceeding woul d have been different.

Hodges was aware that the St ate could go into his criminal history but Hodges chose to testify

after his counsel advised aga inst testifying. The jury already knew that Hodges had been49

charged with these o ther crimes. This information can not cause prejudice when it was already

before the jury. Therefore, absent a showing of prejudice, this issue is without merit.

5. Failure to Instruct on Ineligibility for Parole.

¶88. Hodges claims that the jury was improperly instructed on the verdic t form that, “if the

jury cannot agre e on punishment, the court must sentence the Defendant to a term of life

imprisonment with the possibility of par ole.” Hodges also claims that the State exacerbated

this problem by informing the jury during closing argument that the jury had the option of

sentencing Ho dges to life with parole. Hodges argues that these statements violate Mississippi

law, which requires the jury to have been instructed that the sentence was without parole. He

clai ms his due process rights were violated where the jury was given an inaccurate explanation

concerning parole and erroneously believed Hodges could receiv e parole. Hodges argues that

this requires his sentence to be vacated.

¶89. The State argues that the court complied with Mississippi law in instructing the jury,

pursuant to Miss. Code Ann.§ 97-3-21 which provides that “every person who shall be

convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the

State Penitentiary without parol e ; or (c) to imprisonment for life in the State Penitentiary with

eligibility for parole as provided in Section 47-7-3(1)(f).” The State argues that the court

instru cted the jury on all three options and the jury returned a death sentence. The State claims

that even if there was an error, it was harmless error which does not require reversal.

¶90. The verdict form states that “[y]ou have found the Defe ndant guilty of the crime of

Capital Murder. You must now decide whether the Defendant will be sentenced to death, or

life imprisonm

ent without the possibility of parole, or life imprisonment with the possibility50

of parole.”

The verdict form then goes on to instruct the jurors how their verdict should read

if they sentenced him to death, if they sentence him to life imp risonment without parole, if

the y sentence him to life with possibility of parole and if they could not agree on a sentence.

The jury was instructed on all three options, and the jury chose death. As mentioned

previously, the main part Hodges now objects to is where the verdict form states that “if the

jury cannot agree on punishment, the court must sentence the Defendant to a term of life

imprisonment with the possibility of parole.” Hodges, during trial, objected to the form of the

verdict but i

t was the part that dealt with the aggravators. The part Hodges brings up in this

present appeal was not objected to at trial thus barring appeal on that issue. H olland v. State

,

705 So. 2d 307, 352-53 (Miss. 1997) (citing Cole v. State

, 5 25 So. 2d 365, 369 (Miss.

1987)). The verdict form was included in Instruction C-1, to which Hodges, at the time, made

no objection to this part. Any objection to this part of the verdict form should have been made

when the instructions were being consider ed. Procedural bar notwithstanding, this Court will

consider this issue on the merits.

¶91. Hodges cites Turner v. St ate , 573 So. 2d 657 (Miss. 1990), for the proposition that

the court must instruct the jury that a life sentence means life without parole. However, that

case is distingui shable from the case sub judice. In T urner

, the issue was whether the trial

court erred in failing

to instruct the jury that the appellant would never be eligible for parole

since he was a habitual-offender. I d. at 673. This Court held that the remedy for failure to

conduct the habitual offender status hearing prior to the sentencing phase and failure to

properly instruct the jury on the meaning of “life” is to vacate the death sen tence and remand

fo r new sentencing trial with proper instructions. I d. at 675. However, the case sub judice is51

not dealing with habit ual offender status. Hodges would like us to extend the rule in T urner

to the case sub judice because parole is not offered to defe ndants convicted of capital murder.

However, th

is Court has held that the constitutional right to inform the jury that he was not

entitled to parole has not been extended to defenda n ts who are not habitual offenders. S mith

v. State

, 724 So. 2d 280, 29 5 (Miss. 1998). Hodges was not entitled to an instruction

regarding his ineligibility for parole because he was not a habitual offender.

¶92. However, Hodges also cla ims that the trial court erred in instructing the jury, in the

verdict form, that if they did not agree on a verdict that the court m ust sentence the defendant

to a term of

life imprisonment with the possibility of parole. Hodges argues that this

misinformed the jury concerning the law in this matt er and his death sentence should be

vacated. He claims this error was also exacerbated when the State in closing argument stated

that if the jury did not reach a verdict the court would sentence Hodges to life with parole. In

Williams v. State , 445 So. 2d 798, 813 (Miss. 1984), this Court held that:

A jury should have no conc ern with the quantum of punishment because it

subverts a proper determination of the sentencing issue. Reference to the

possibility of

parole should the defendant not be sentenced to die are wholly out

of place at the sentencing phase of a capital murder trial for two additional

reasons.

First, such references inevitably have the effect of inviting the jury to

second guess the Legislature. The Legislature has declared that persons

sentenced to life imprisonment may under certain circumstances become

eligible for parole. Mississippi Code Annotated section 47-7-3(1)

(Supp.1982). It is no more proper for the jury to concern itself with the wisdom

of that legislative determination t han it is for the jury to consider the

Legislature's judgment that death in t he gas chamber be an authorized

punishment for capital murder. J ohn son v. State , 416 So. 2d 383, 392 (Miss.

1982).

Second, parole is not automatic. No person sentenced to life

imprisonment has any “right” to parole. G reenhol tz v. Inmates of Nebraska

Penal and Correctional Complex

, 442 U.S. 1, 11, 99 S. Ct . 2100, 2105, 60 L.52

Ed. 2d 668, 677 (1979); Davis v. Stat e , 429 So. 2d 262, 263 (Miss. 1983).

Allowing argument or testimony regarding th e possibility of the defendant some

day being paroled is in effect inviting the jury to speculate how ten years in the

future the parole board may exercise its legislatively granted discretionary

authority. This would introduce into the sentencing proceedings an "arbitrary

factor” proscribed by section 99-19-105(3)(a).

(Emphasis omitted). This Court in W illiams did state that parole consideration at a death

penalty trial was i

mproper. 445 So. 2d at 813. This Court did find error in the prosecutor’s

repeated questioning of a defense expert about the expe rt’s understanding that a life sentence

usually meant thirty years in prison. I d. at 814. Likewise, it was error for the verdict form to

state that if the jury did n ot agree on a verdict that the court must sentence the defendant to a

term of life imprisonment with the possibility of parole. It was also error for the State to

comment on this during its closing argument. However, in W illiams

, this Court went further

and stated that the discussion of parole was improper but found that the erro r was reversible

onl y in that the trial court also erred in several other respects (discussion of the defendant's

r ight not to testify and discussion of the defendant's right to appeal at different levels). I d. “It

is not necessary to hold that the instant error standing alone constitu tes reversible error.” I d.

In Williams

, this Court found that “it may be true that none of these errors considered above

would require reversal, but when they are considered as a whole for their aggregate effect, it

becomes clear that Williams was denied a fair sentenc ing hearing.” I d. “In sum, the parole

con sideration error was only reversible in conjunction with the other errors in the Williams

case.” Smith v. State , 877 So. 2d 369, 381 (Miss. 2004).

¶93. Furthermore, the trial court strictly followed the language of the statutes and the jury

was instruc ted in the verdict form of all three alternatives: death, life imprisonment without53

parole, and life imp risonment with possibility of parole. The following statutes are relevant

to determination of this issue:

Upon conviction or adjudication of guilt a defendan t of capital murder or other

capital offense, the court shall conduct a separate sentencing proceeding to

d etermine whether the defendant should be sent enced to death, life

imprisonment without eligibility of parole, or life imprisonment....

Miss. Code Ann. § 99-19-101(1) (1994).

If the jury c a nnot, within a reasonable time, agree as to punishment, the judge

shall dismiss the jury and impose a sentence of imprisonment for life.

Miss. Code Ann. § 99-19-103 (1994).

(e) No person shall be eligible for parole who, on or after July 1, 1994, is

charged, tried, convicted and sentenced to life imprisonment without eligibi lity

for parole under the provisions of Section 99-19-101;

(f) No person shall be eligible for parole who is charged, tried, convicte d and

sentenced to life imprisonment under the provisions of Section 99-19- 101; ...

Miss. Code Ann. § 47-7-3(1)(e)-(f) (amended 1994).

(1) An inmate shall not be eligible for the earned time allowance if:

(a) The inmate was sentenced to life imprisonmen t; but an inmate, except an

inmate sentenced to lif

e imprisonment for capital murder, who has reached the

age of sixty-five (65) or older and who has served at least fifteen (15) years m a y

petition the sentencing court for conditional release; ...

Miss. Code Ann. § 47-5-139(1)(a) (amended 1994 & 1995).

While it is true that the statute does provide for thr ee alternatives, it is also true that the earned

time allowance and parole statutes effectively eliminate the possibility of parole for someone

convicted of capital murder. This is an inconsistency in statutes that needs to be addressed by

the Legislature. However, the question now becomes whether this inconsistency caused

prejudicial error in the case at bar. Where the jury imposes the death penalty, the fact that the

jury was given the option of parole does not constitute harmful error. As this Court stated in

Puckett v. State , 737 So. 2d 322, 363 (Miss. 1999),54

the true harmful error would arise in those case s where the trial court strictly

follows the language of § 99-19-101 in cap ital murder cases, submits all three

options to the jury, and the jury selects the o ption of life imprisonment. In this

instance, the defense could argue that the jury was misled in that they selected

the life imprisonment sentence w ith the assumption that the defendant may be

eligible for parole, whe n in reality the defendant would not be eligible for parole

by virtue of the parole and earned time statutes.

The true harmful error situation did not occur in the case sub judice. The jury was given all

three alternatives but it sentenced Hodges to death and not life imprisonment. Based on

Williams and Puckett , this issue is without merit.

¶94. Furthermore, this Court finds that the language on the verdict form stating that “if the

ju ry cannot agree on punishment, the court must sentence the Defendant to a term of life

imprisonment with the possibility of parole” was improper be cause it was an incorrect

statement of law. Pursuant to Miss. Code Ann. § 99-19-101, the judge must “impose a

sentence of imprisonment fo r life” when the jury cannot agree on the punishment and under

our parole statutes a life sentence rendered pursuant to Miss. Code Ann. § 99-19-101 will

automatically be a life without parole sentence. Even though this language in the verdict form

was an improper statement of the law, such error was harmless since the jury, knowing that it

had the life without parole option, chose death.

6. Indictment.

¶95. Hodges claims that the capital murder indictment charging an underlying felony of

burglary with the intent to commit an assault was defective for failure to specify the intended

victim of that assault. Further, Hodges argues that the State’s proof at trial was insufficient to

support a viable theory of assault with respect to the burglary and the State presented different

theories with respect to the burglary which were inconsistent with a theory of i ntent to assault.55

He claims that he was deni ed a fair trial in that he could not adequately prepare a defense

before trial.

¶96. The State argues that the indictment was n ot defective and fully complied with the

applicable law. The State also claims that Hodges is procedurally barred from raising this issue

on appeal because they never objected to or raised it during the trial. However, “this Court has

squarely held that challenge s to the substantive sufficiency of an indictment are not waivable.

Thus, they may be first raised at anytime, including on appeal.” S tate v. Berryhill

, 703 So. 2d

250, 254 ( Miss. 1997). S ee also Copeland v. State

, 423 So. 2d 1333 (Miss. 1982)

(substantive failure of an indictment to charge a crime was not waivable and not subject to

amendment); Burchfield v. State

, 277 So. 2d 623 (M iss. 1973); M onk v. State

, 532 So. 2d

592 (Miss. 1 988), superseded by rule on other grounds ( objection to an indictment that

fai led to charge an essential element of the crime sought to be charged may be raised for the

first time on appeal). Therefore Hodges is not procedurally barred from raising this issue on

appeal.

¶97. The standard of reviewing the sufficiency of indictments is we ll settled. “It is awellestablished principle of law t hat in order for an indictment to be sufficient, it must contain the

essential elements of the crime cha r ged.” P eterson v. State

, 671 So. 2d 647, 652-53 (Miss.

1996) (citing May v. State

, 47 So. 2d 887 (Miss. 1 950)). An indictment shall also include the

seven factors enumerated in URCCC 7.06:

(1) The name of the accused;

(2) The date on which the indictment was filed in each court;

(3) A statement that the prosecution is brought in the nam e and by the authority

of the State of Mississippi;

(4) The county and judicial district in which the indictment is brought;56

(5) The date and if applicable the time, on which the offense was alleged to be

committed. Failure to state the correct date sha ll not render the indictment

insufficient;

(6) The signature of the foreman of the grand jury issuing it; and

(7) The words “against the peace and dignity of the state”.

The indictment is held to be sufficient if it contai ns the seven factors enumerated in URCCC

7.06. Byrom v. State , 863 So. 2d 836, 865 (Miss. 2004).

¶98. In the case sub judice the indictment states that

Quintez Hodges late of the County aforesaid, on or about the 20 t h day of July,

1999, in the County aforesaid, d id unlawfully, wilfully, and feloniously, with or

without the design to effect death, kill and murder Isaac Johnson, a human being,

without authority of law and not in necessary self defense, while engaged in the

commission of the crime of burglary, to-wit: in that the said Quintez Hodges did

on or about the 20 th day of July, 1999 , in the County aforesaid, did unlawfully,

wi l fully, feloniously and burglariously break and enter the dwelling house of

Isaac Johnson, with the intent to unlawfully, wilfully, feloniously, purposely and

knowingly commit the crime of assault therein; in violation of section 97-3-

19(2)(e) MCA 1972 as amended; contrary to the form of the statutes in such

cases made and provided, and aga i nst the peace and dignity of the State of

Mississippi.

The in dictment above contains all the seven factors enumerated in URCCC 7.06. Therefore

t he indictment in the case sub judice is sufficient. B yrom

, 863 So. 2d at 865. The indictment

contains the essential elements of t he crime and gives Hodges notice of the charges.

Furthermore, as a general rule, an indictment which tracks the language of a criminal statute

it is sufficient to inform the accused of the charge against him. S tevens v. State

, 808 So. 2d

908, 919 (Miss . 2002) (citing W ard v. State

, 479 So. 2d 713, 714 (Miss. 1985)). According

to Miss. Code Ann. § 97-3- 1 9(1)(c), capital murder requires a charge of an underlying felony.

In this case the underlyin

g felony was burglary, which is the breaking and entering of a dwelling

house with the intent to commit some crime. Miss. Code Ann. § 97-17-19 (1972). This Court57

has held that since

the offense of burglary itself requires an underlying crime, an indictment

for burglary that does not specify what crime the accused intended to comm it is fatally

defective. Lambert v. State , 462 So. 2d 308, 311 (Miss. 1985) (citing N ewburn v. State

, 205

So. 2d 260 (Miss. 1967). The indictment of Hodges followed the criminal statute. It charged

him with c apital murder with an underlying felony of burglary and specified what crime the

accused intended to commit - assault.

¶99. However, Hodges cites State v. Berryhill

, 703 So. 2d 250 (Mi ss. 1997), for the

proposition

that the indictment above is defective for failing to specify the intended victim of

the assault. In B erryhill

, this Court held that a capital murder indictment predicated on

burglary is required to state with specificity the underlying offense that comprises the

burglary. I

d. at 258. This Court observed that a capital murder charge that is predicated upon

burglary must inclu

de notice of the crime comprising the burglary because burglary requires

as an essential element, the intent to commit anothe r crime. I d. at 255-56. Without notice

of the oth

er crime, the accused cannot defend the charge against him. I d. F urthermore, in

Berryhill , this Court stated that

[a]n indictment that f

ails to give notice to a defendant of the charges to which

he has been hailed in

to court to defend will fail to provide him an opportunity

to prepare a defense. We have repeatedly held that an indictment must give

notice of the natu

re and cause of the charges, although a reasonably concise

statement of the crime will suffice.

Id. Also, a defendant who has been indicted without specifying may find out on the eve of trial

that the State might try to prove the burglary on different theories, which would plainly invite

different defenses. Id.58

¶100. The indictment in the case sub judice complies with the rule set forth in B erryhill

. The

indictment charged Hodges with capital murder with the underlying felony of burglary. Since

the underly

ing felony was burglary, the State was required to specify the underlying offense,

which they did. It charged Hodges with burglary with the intent to commit an assault therein.

This Court has stated that

[t]he allegation of the ulterior felony intended need not, however, be set out as

fully and specifically as wo uld be required in an indictment for the actual

commission of that felony. It is ordinarily sufficient to state the intended

offense generally, as by alleging an intent to steal, or commi t the crime of

larceny, rape or arson.

Booker v. State

, 716 So. 2d 1064, 1068 (Miss. 1998) (citing Am. Jur. 2d B urglary § 36

(1964)). Therefore, all the State was required to do was state the intended offense generally

by alleging the intent to assault. The State did exactly what was required. Hodges was able to

prepare a defen

se and was well aware, from the indictment, that the State intended to prove

burglary with the in

tent to commit an assault therein. The State did not try to prove different

theories of burglary as Hodges claims. The State set out to prove that Hodges went to Cora’s

house that night armed with a gun and intended to shoot Cora and/or Bessie Tatum. Hodges

himself told Cora on the night of the shooting that he went to her house to shoot her and/or

Bessie Tatum (i

f she had been home). Hodges also told his friend, Anthony Betts, that he was

going to buy a gun and kill somebody. Hodges then went to Cora’s house that night armed with

a gun. Hodges has not shown that he was prejudiced in the preparation of his defense. This

issue is without merit.

7 & 14. Death Penalty Elgibility.

¶101. Hodges argues that Ring v. Arizona , 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d59

556 (2002) and Apprendi v. New Jerse y , 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435

(2000), require that his sentence be vacated. Since both of these issues deal with the

application of Apprendi and Ring , these two issues will be combined.

¶102. First, Hodges contends that his indictment was improper as it failed to enumerate the

aggr avating factors and the mens rea element. Hodges claims that W illiams v. State

, 445 So.

2d 798, 804 (Miss. 1984), which held that the indictment i n a death penalty case need not

include aggravating circumstances, must be reconsidered in light of Apprendi and Ring in

which the Court held unconstitutional a senten cing scheme where a judge rather than a jury

determined whether there were sufficient aggravating circumstances to warrant imp osition of

the death pe nalty. Hodges also argues that R ing prohibits the duplicative use of the burglary

aggravator at the penalty phase when the jury had previously found that Hodges committed the

crime at the culpability phase. This Court has previously discussed all of these issues as they

relate to Ring and A

pprendi

. As this Court has continuously held, these cases have no

application

to Mississippi’s capital murder sentencing scheme. Therefore, these issues are

without merit. See Berry v. State

, 882 So. 2d 157, 170-73 (Miss. 2004) (We have previously

discussed these cases at length and concluded that they addres s issues wholly distinct from our

law, and do not address indictments at all).

¶103. In Berry v. State , 882 So. 2d 157 (Miss. 2004), we held that:

Mississippi’s capital scheme is distinct fro m Arizona’s in the single, most

relevant respect under the Ring holding: that it is the jury which determines the

presen ce of aggravating circumstances necessary for the imposition of the death

sentence. See Miss. Code Ann. § 99-19-101 (2000).

Likewise, the Rin g court considered Mississippi’s scheme to be part of a

majority of states who have responded to its Eighth Amendment decisions and60

require th at juries make the final determination as to the presence of aggravating

circumstances. Ring

, 536 U.S. at 608 n. 6.

Berry , 882 So. 2d at 173. In S tevens v. State

, 867 So. 2d 219 (Miss. 2003), the defendan t

argued that his death sentences should be vacated because the aggravating circumstances which

charged capital murder were not included in his indictment. In S tevens

, the d efendant also

relied on Ring and Apprendi

. Id. at 225. This Court held that:

The State is correct in its asserti on that a defendant is not entitled to formal

notice of the aggravating circumstances to be employed by the prosecution and

that an indictment for capital murder puts a defendant on sufficient notice that

the statutory aggravating factors will be used against him. Sm ith v. State , 729

So. 2d 1191, 1224 (Miss. 1998) ( relying on W illiams v. State

, 445 So. 2d 798

(Miss. 1984)).

We believe that the fact that our capital murder statute lists an d defines to some

degree the possib le aggravating circumstances surely refutes the appellant’s

conte ntion that he had inadequate notice. Anytime an individual is charged with

murder, he is put on notice that the deat h penalty may result. And, our death

penalty statute clearly states the only aggravating circumsta nces which may be

relied upon by the prosecution in seeking the ultimate punishment. I d. a t 804-

05. This issue is without merit.

Stevens v. State

, 867 So. 2d at 227. See also Puckett v. State

, 87 9 So. 2d 920 (Miss. 2004);

Holland v. State, 878 So. 2d 1, 9 (Miss. 2004).

¶104. In Wilcher v. State , 697 So. 2d 1087, 1108 (Miss. 1997), this Court held:

Wilcher also argue s that the use of the underlying felony as an aggravating

circumstance violates the Eighth Am endment in that it does not “genuinely

narrow” the class of death-eligible defe n dants. Wilcher did not raise this issue

at trial, and therefore, is procedurally barred from doing so on appeal

. Walker

v. State

, 671 So. 2d 581 , 612, (Miss. 1995) (citing F oster v. State

, 639 So. 2d

1263, 1270; Cole v. State

, 525 So.2d 365, 36 9 (Miss. 1987)). Furthermore,

even if the issue were not pro cedurally barred, this Court has repeatedly rejected

the argument raised by Wilcher:

The use of the underlying felony

... as an agg ravator during

sentencing has been consistently upheld in capital cases. This

Court has stated:61 The argument is the familiar “stacking” argument

that the state can ele vate murder to felony murder

and then, using the same circumstances can elevate

the crime to capital murder with two aggravating

circumstances. As pointed out in L ockett v. State

,

517 So. 2d 1317, 1337 (Miss. 1987), thi s Court

has consistently rejected this argument.

Minnick v. St

ate , 551 So. 2d at 96-97. The United States

Supreme Court has confirmed that this practice does not render

a death sentence unconstitution a l. Lowenfield v. Phelps

, 484 U.S.

231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988). See also, Ladner

v. State , 584 So. 2d 743, 763 (Miss. 1991).

Walker , 671 So.2d at 612.

. . .

Our precedents make clear that a State's capital sentencing scheme must

... genuinely narrow the class of defendants eligible for th e death penalty. When

the purpose of a statutory aggravating circumstance is to enable the sentencer

to distinguish tho se who deserve capital punishment from those who do not, the

circumstance must provide a principled basis for doing so. If the sentencer

fairly could conclude that an aggravating c ircumstance applies to every

defendant eligible for the death penalty, the circumstance is constitutionally

infirm

. Blue v. State

, 674 So. 2d 1184, 1216 (Miss. 1996) (quoting A rave v. Creech

,

507 U.S. 463, 474, 113 S. Ct. 1534, 1542, 123 L. Ed. 2d 188 (1993))

(emphasis in original).

Not every defendant eligible for the death penalty will have c ommitted murder

while in the course of robbery or Kidnaping or the other statutorily enumerated

felonies. See Miss. Code Ann. § 97-3-19. Therefore, the felony murder

aggravator genuinely narrows the class of defendants eligible for the death

penalty. Furthermore, “[t]he legislature has a very great latitude in prescribing

and fixing punishment for crime.” Smith v. State

, 419 S o. 2d 563, 567 (Miss.

1 982), overruled on other grounds, W illie v. State

, 585 So. 2d 660, 681

(Miss. 1991).

Moreo ver, the aggravating factor for murder committed during the course of a

robbery is constitutional. S ee Lowenfield v. Phe lps , 484 U.S. 231, 108 S. Ct.

546, 98 L. Ed. 2d 568 (1988). See also Lockett v. State

, 614 So. 2d 888, 897

(Miss. 1992) [“This Court has previously determined that Mississippi’s capital

sentencing scheme, as a whole, is const itutional.”]. For these reasons,

Wilcher’s argument fails.

Wilcher , 697 So. 2d at 1108-09.62

¶105. It is clear that Apprendi and Ri ng are not applicable to Mississippi law. As this Court

stated in Berry, Mississippi’s capital scheme is distinct from Arizona ’s. The single most

relevant distinction is that it is the jury which determines the presence of aggravating

circumstances necessary for the imposition of the death sentence under Mississippi law.

Therefore, these two issues are without merit.

8. Cause Exclusion of Prospective Juror.

¶106. Hodges argues that the trial court erroneously removed venire member number 69

on the grounds that his views on the death penalty seemed unclear. Hodges claims that the

juror’s views on the death penalty were unequivocal and did no t justify a challenge for cause.

¶107. In answering the questionnaire, the juror answered no to the question, “could you ever

personally vote to impose the death penalty?.” During the questioning by the trial judge, the

juror said that he could never vote to impose the death penalty and then changed and said that

it depended on the crime. The juror also said he had a conscious and moral belief against the

death penalty and that he might be able to impose the death penalty in the right case but would

have to pray. During the questioning by the State, the juror stated that he could not be fair to

the other options because he would favor the verdict of life over death. When Hodges

questi oned the juror, he changed his answer and stated that after he heard all the evidence he

could consider the death penalty. Hodges argues that the juror expressed consistent views

throughout the questioning by the court.

¶108. The test for determining w hen a prospective juror’s views on the death penalty justify

his removal is whether the trial court finds that the “juror’s views would pr event or

substantially impa

ir the performance of his duties in accordance with his instructions and his63

oath” and leaving the trial court “with definite impression that a prospective juror would be

unable to faithfully and impartially apply the law.” K ing v. State , 784 So. 2d 884, 887 (Miss.

2001) (quoting Wainw right v. Witt , 469 U.S. 412, 424-26, 105 S. Ct. 844, 852-53, 83 L. Ed.

2d 841, 851-52 (1985)). If the judge is concerned with the response given, he must further

determine wh

ether the potential juror could follow the law as instructed even if the juror

expressed a general disapproval of the d eath penalty. K ing

, 784 So. 2d at 887. “This is why

deference must be paid to the trial judge who sees and hears the juror.” I d. (quoting

Wainwright , 469 U.S. at 426).

¶109. This Court has l

ong held that it is the trial judge’s domain to judge matters regarding

credibility of a witness i

ncluding prospective jurors. H arris v. State

, 527 So. 2d 647, 649

(Miss. 1988). The circuit court judge, as he must, has wide discretion in determining whether

to excuse any prospective juror, including on challenged for caus e. M iss. Winn-Dixie

S upermarkets v. Hughes

, 247 Miss. 575, 156 So. 2d 734, 738 (Miss. 1963). However, it is

reversible error if one juror is erroneously excused from the jury on the basis of his view on

the death penalty. G ray v. Mississippi

, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed . 2d 622

(1987).

¶110. In King , the trial judge excluded three potential jurors because of their contradictory

responses to the questions regarding the death penalty. K ing

, 784 So. 2d at 888. One of the

jurors in King answered “no” to the ques tion of whether she could personally vote to impose

the death penalty. I

d. at 886-87. The juror then was asked whether she could impose the death

penalty even

if the evidence warranted it. I d. at 887. She responded that she would have to64

hear some evidence f

irst. I d. A nother juror stated that she probably could personally impose

the death penalty but in the questionnaire she had stated th at she could never impose the death

penalty. I

d. The third juror stated that he could not impose the death penalty but recanted this

answer when questioned by defense counsel. I d. This Court concluded that because jurors

repeatedly switched positions and since the judge had amble opportunity to observe the jurors,

the dismissal was not an abuse of discretion. I

d. at 888. This Court also found no reversible

error in the trial court’s excluding jurors for cause who gave contradictory responses, wavered

on their position, and generally appeared conf used regarding the death penalty. D ufour v.

State , 453 So. 2d 337, 341-44 (Miss. 1984).

¶111. Likewise, in the case sub judice, the trial judge ex cluded the prospective juror because

of his contradictory responses to the questions regarding the death penalty. This case is

analogous to the King case in that the juror stated in his questionnaire that he could never

impose the death penalty but during questioning by the court he stated that he may be able to

in the right case. He even went further and stated that he would favor life over death but when

questioned by defense counsel he recanted this answer and stated that he could consider all

possibilities. “It goes without saying that a potential juror who cannot give a straight answer

would be ver

y unlikely to follow the law.” K ing

, 784 So. 2d 888. “If jurors provide

inconsistent answers regarding their feelings on the stated law of this state, they may be struck

for cause.” B rown v. St ate , 890 So. 2d 901, 910 (Miss. 2004). Given this potential juror’s

equivocal stance on the issue, the t rial court did not abuse its discretion in striking him for

cause.65

9. Denial of Mistrial.

¶112. Hodges claims that the trial court erred in denyin g his request for mistrial or preventing

the jury from considering Cora’s testimony that Hodges had been incarcerated for burglarizing

the Johnson home. Hodges argues that this was irrelevant and inadmissible under M.R.E. 403

and that its prejudice substantially outweighed its probative value. He claims that the court did

not conduct a releva ncy test and did not provide a limiting instruction. Hodges claims that this

mention of his prior charge of burglarizing the Johnson home resulted in an inference of guilt

on the capital murder c harge. Hodges also argues that this was not harmless error because it

is likely that the jury would have found him guilty o f trespass instead of burglary. The State

argues tha t this one statement made by Cora during her testimony was unintentionally elicited

and that it was harmless in light of the overwhelming evidence of guilt.

¶113. At trial during direct examination, the State asked Cora abo ut her relationship with

Hodges. As Cora was testifying to this relationship she mentioned that Hodges had broke into

her house and he “got locked up for a year and a half.” Hodges objected to this mention of this

other crime and requeste d a mistrial. The Court then allowed the State to direct the witness

a little in order to eliminate the possibility of mentio ning the crime. The Court allowed the

State to lead Cora and took the request for a m istrial under advisement. The trial court

overruled Hodges’ objection and motion for mistrial as a result of Cora’s answ er. Nothing

more was said regarding his time in jail for breaking into her house. Hodges now contends that

a mistrial should have been declared and cites cases in which this Court held that the

introduction of other crimes constituted reversible error.66

¶114. However, this Court has, on numerous o ccasions, found this error harmless under facts

similar to the case sub judice. Similarly, in C raft v. State

, 656 So. 2d 1156, 1165 (Miss.

1995), this Court

held that a witness’ reference to another possible crime committed by the

defendants did not warrant a reversal where the wit n ess alluded to other crimes only once and

“the prosecution d id not deliberately ask or infer about whether the defendants had been

involved in other offenses.” Also in W

atson v. St

a te

, 521 So. 2d 1290, 1294 (Miss. 1988),

a witness testified that the defendant “was just tel ling me he was out of jail . . . .” This Court,

declining to reverse, held that the answer was “unresponsive to the question and there was no

purposeful effort or intent on the part of the State to elicit such information from the witness.”

Id. This Court went on to say that “assuming arguendo that the answer constituted error,

certainly it w as harmless error under the facts of this case.” I d. The Fifth Circuit has held that

“fleeting, unexplained reference” to other crime was “obviously not reversible error.” U nit e d

States v. Webster , 750 F.2d 307, 336 (5 th Cir. 1984).

¶115. In the case sub judice, the prosecutor did not ask Cora about Hodges ’ jail time from

burglarizing her hou

se, but instead asked her about her relationship with Hodges, to which Cora

mentioned his jail time he served when he broke into her house. The prosecutor thereafter

direc ted Cora’s testimony towards matters involving the relationship which resulted in a child,

and the jail time was never again mentioned. Clearly, the prosecution did not deliberately elicit

testimony regarding this other crime. As in W

atson

, even assuming arguendo that the answer

constituted error, the error was harmless.

¶116. Hodges also argues that it was error for the trial judge not to p rovide the jury with a

limiting instruct

ion, since the evidence was introduced. To support his argument, Hodges cites67

Robinson v. Stat e , 735 So. 2d 208 (Miss. 1999), which held that the trial court’s failure to sua

sponte give a limiting instruction on prior bad acts was reversi ble error. However, R obinson

was overruled by Br

own v. State , 890 So. 2d 901 (Miss. 2004). In overruling R obinson

, this

Court held that the trial court is not required to issue a sua sponte limiting instruction when

other crimes evidence has been admitted and the defense counsel has the burden of requesting

such instruction. I

d. “It is not per se prejudicial to a defendant if a jury simply hears an

isolated instance of a crime or bad act in the course of a trial.” I d. at 913. In the case sub

judice, Hodges did not request a limiting instruction when this isolated instance of a crime or

bad act came out during Cora’s testimony. Since the trial court is not required to issue such

an instruction without a request from Hodges, the trial court did not err when they did not give

a limiting instruction.

10. Evidence of Other Crimes.

¶117. Hodges cla ims that the trial court erred in allowing the introduction of evidence that

Hodges raped Cora in the vehicle during th e time he kidnaped her from her home. Hodges

argues that it was not relevant under M.R.E. 404(b ) and was more prejudicial than probative

under M.R.E. 403. Hodges claims that the trial court did not conduct a balancing test to

determine whether the probative value is substantially ou tweighed by the danger of unfair

prejudice. However, the record plainly shows that the trial judge, outside the presence of the

jury, he ard arguments from both sides and determined that it was “probative and the probative

value outweighs the unfair prejudice and the objection is noted and overruled.”

¶118. The admissibility and relevancy of evidence is within the dis cretion of the trial court

and, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.68

Reynolds v. State

, 784 So. 2d 929, 932 (Miss. 2001). “As long as the trial court remains

within the confines of the Mississippi Rules of Evidence, its decision to admit or exclude

evidence will be accorded a high degree of deference.” J ohnston v. State

, 567 So. 2d 237, 238

(Miss. 1990). Additionally, “the admission or exclusion of evidence must result in prejudice

or h arm, if a cause is to be reversed on that account.” J ackson v. State

, 594 So. 2d 20, 25

(Miss. 1992).

¶119. The Mississippi Rules of Evidence require that evidence be relevant, and, if so, it is

generally admissible. M.R.E. 401 & 402. However, even relevant evidence may not be

admissible due to prejudice, confusion, or waste of time. M.R.E. 403. Where proof of other

crimes or acts o f the defendant is offered into evidence pursuant to Rule 404(b), it is still

subjected to the requireme nt that evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. M.R.E. 403. Rule 403 is the

“ultimate filter through which all o therwise admissible evidence must pass.” B ounds v. State

,

688 So. 2d 1362, 1370 (Miss. 1997).

¶120. Evidence of prior of fenses committed by a defendant, not resulting in conviction, is

genera lly inadmissible either for impeachment purposes or as a part of the State’s case in

chief. N eal v. Sta te , 451 So. 2d 743, 758 (Miss. 1984); Mason v. State

, 429 So. 2d 569, 572-

73 (Miss. 1983); Gray v. State

, 351 So. 2d 1342 (Miss. 197 7). However, our law also

recognizes certain exceptions to the rule. N eal

, 451 So. 2d at 759. This Court has stated that

[p]roof of another crime is admis sible where the offense charged and that

offered to be proved are so interrelated as to constitute a single transaction or

occurr e nce or a closely related series of transactions or occurrences. Such

proof of another crime is also admissible where it is necessary to identify the

defendant, where it is material to prove mot ive, and there is an apparent relation69

or connection betwe en the act proposed to be proved and that charged, where the

accusation involves a series of criminal a cts which must be proved to make out

the offense, or where it is necessary to prove scienter or guilty knowledge.

Id. Further, “the state has a legitimate interest in telling a rational and coherent story of what

happened.” S haw v. State

, 513 So. 2d 916, 919 (Miss. 198 7) (citing Giles v. State , 501 So.

2d 406 (Miss . 1987); B rown v. State

, 483 So. 2d 328 (Miss. 1986); Turner v. State

, 478 So.

2d 300 (Miss. 1985); Neal v. State , 451 So. 2d 743 (Miss. 1984)).

¶121. After the trial judge heard arg uments from both sides the court determined that “this

was a conti

nuous event and transaction, and the State under case law is entitled to show the jury

the complete picture of what happened. The Court finds that it is probative and the probative

value outweighs the unfair prejudice and the objection is noted and overruled.” In the case sub

judice, Hodges was charged with capital murder with the underlyi ng felony of burglary and he

was a lso charged with the kidnaping of Cora Johnson. It was shown that Hodges broke into the

house where he was confronted by the victim. After shooting Isaac once in the stomach, he

went to Cora’s room where she had just awakened. Hodges told Cora to get her stuff and that

she was going with him. She told Hodges that she was not going anywhere with him and that

is when he struck her across the head with the gun. Cora then woke her daughter and prepared

to leave with Hodge s. During the trip to Alabama, Cora testified that Hodges forced her into

the back seat

of the car, held a gun to her head and raped her while her daughter was lying in the

front seat. The rape of Cora was integrally related in time, place and fact with the murder of

Isaac Johnson. The rape arose out of a “common nucleus of operative facts” and was

“integrally int ertwined” with what happened to Isaac Johnson. W heeler v. State

, 536 So. 2d

1347, 1352 (Miss. 1988). As stated above, this Court has held that proof of another crime is70

admissible where the offense charged and that offered are so interrelated as to constitute a

single transaction or occurrence or a closely related series of transactions or occurrences.

Neal , 451 So. 2d at 759. The rape in the case sub judice is part of a closely related series of

occurrences. Also, as this Court has stated in N eal

, “[w]e are concerned with the State’s

legitimate interest in telling a rational and coherent story of what happened. ” Id. Not only was

the rape integrally intertwined wi th the murder of Isaac, the rape actually occurred while Cora

was being held against her will. The trial court did not err in admitting evidence of the rape.

The rape was admissible as part of the res gestae of the events surrounding the crime. This

issue is without merit.

11. Admission of Victim Photograph.

¶122. Hodge s next claims that the trial court erred in admitting State’s Exhibit 10, which is

a photograph depicting Isaac Johnson’s midsection, where the victim was shot, after it had been

cleaned and washed. Hodges argues that the picture was prejudicial and lacked any probative

value because the Stat e’s only purpose in submitting the picture was to inflame the jury.

Hodges objected to this pictur e being admitted into evidence and also tried to stipulate what

the prosecution was trying to p rove. Hodges cites M cNeal v. State

, 551 So. 2d 151, 159

(Miss. 1989), for the proposition that all photographs which are gruesome or inflammatory

are always inadmissible as evidence.

¶123. The admissibility of photographs rests within the sound discretion of the tr ial court.

Jackson v. State

, 672 So. 2d 468, 485 (Miss. 1996); Griffin v. State

, 557 So. 2d 542, 549

(Miss. 1990); Mackbee v. State

, 575 So. 2d 16, 31 (Miss. 1990); B oyd v. State

, 523 So. 2d

1037, 1039 (Miss. 1988). Moreover, the decision of the trial judge will be upheld unless71

there has been an abus e of discretion. W estbrook v. State

, 658 So. 2d 847, 849 (Miss. 1995).

The “discretion of the trial judge runs toward almost unlimi ted admissibility regardless of the

gruesome ness, repetitiveness, and the extenuation of probative value.” H art v. State

, 637 So.

2d 1329, 1335 (Miss. 1994) (quoting Williams v. State

, 544 So. 2d 782, 785 (Miss. 1987)).

“The mere fact that the defense is willing to stipulate what the prosecution hopes to prove by

admitting the photographs into evidence do es not bar their admissibility.” Simmons v. State

,

805 So. 2d 452, 485 (Miss. 2001) (ci ting H ughes v. State

, 735 So. 2d 238, 263 (Miss.

1999)). In T

aylor v. State

, 672 So. 2 d 1246 (Miss. 1996), this Court noted that photographs

have been held “to be so gruesome and infl ammatory as to be prejudicial in only one

circumstance, a close-up photograp h of a partly decomposed, maggot-infested skull.” I d

. at

1 270 (citing McNeal v. State

, 551 So. 2d 151 (Miss. 1989)). “Photographs may nevertheless

be adm itted into evidence in criminal cases where they have probative value and where they are

not so gruesome or used in such a way as to be overly prejud icial or inflammatory.” H ewlett

v. State , 607 So. 2d 1097, 1102 (Miss. 1992).

¶124. This Court has found that photographs of a victim have evidentiary value when they aid

in describing the circumstances of the killing, Williams v. State

, 3 54 So. 2d 266 (Miss. 1978);

describe the location of the body and cause of death, A shley v. State

, 423 So. 2d 1311 (Miss.

1982); or su

pplement or clarify witness testimony, H ughes v. State

, 401 So. 2d 1100 (Miss.

1981).

¶125. However, this Court has also continuously held th at autopsy photographs are admissible

o nly if they possess probative value. See Puckett v. State

, 737 So. 2d 322, 338 (Miss. 1999);72

Noe v. State

, 616 So. 2d 298 (Miss. 1993). State’s exhibit 10 shows the midsection of the

body cleaned and washed but before the autopsy began. The picture does not depict him cut

up, the picture only shows the midsection of the body with a tiny bullet hole above the navel.

The Comment to M.R.E. 401 states that if there is any probative value, t he rule favors

admission of the evidence. The photograph at issue accurately depicts the wound inflicted

upon the victim and the ca use of death. It certainly does not rise to the level of gruesomeness

noted in McNeal . There is absolutely no blood anywhere in the photo, and there is nothing

gory, gruesome or inflammatory about the picture. Dr. Hayne testified that the picture was

taken to indicate the entrance of the gunshot wound and to show how such positioning affected

his organs and blood loss, causing dea th. Photographs have evidentiary purpose when they

describe the circumstances and cause of death. Accordingly, the trial court did not abuse its

discretion in admitting the photograph.

12. Refusal of Lesser Offense Instructions.

¶126. Hodges claims the trial court erred in denying his request that the jury be instructed

on the lesser offense of manslaughter and tr espass. Hodges claims that the jury could have

reasonably found him guilty of manslaughter and trespass. Hodges argues that the jury could

have found that he killed in the heat of p assion. Hodges presented an instruction on both

manslaughter and trespass. The Court, in refusing to give the manslaughter instruction, stated

that “under these facts . . . the offense of manslaughter is not justified.”

¶127. The State argue s that since this issue was not raised at trial or sentencing, Hodges is

barred from raising this issue on appeal. However, this Court has stated that the denial of a

requested jury instruction:73

is procedurally preserved by the mere tendering of the instructions, suggesting

that they are correct and a sking the Court to submit them to the jury. This in and

of itself affords counsel opposite fair notice of the party's position and the

Court an opportunity to pass upon the matter. When the instructions are

refused, there i

s no reason why we should thereafter require an objection to the

refusal unless we are to place a value upon redundancy and nonsense.

Carmichael v. Agur Realty Co., I nc. , 574 So. 2d 603, 613 (Miss. 1990). We

agree w ith Carmichael , and find that Duplantis is not procedurally barred from

r eview of this assignment. He only needed to tender his suggested jury

instruction in order to preserve review.

Duplantis v. State

, 708 So. 2d 1327, 1339-40 (Miss. 1998). “We d[o] not intend to . .

.

require litigants to object to the denial of instructions that they themselves h ave offered.” I

d.

Therefore, Hodges only needed to tender his suggested jury instruction in order to preserve

review. Hodges is not procedurally barred from raising this issue on appeal since he did tender

his instruction to the court.

¶128. This Court

has “repeatedly held that the accused is entitled to have the jury instructed

that it may consider convictin g him of a lesser offense only where there is in the record an

evidentiary basis therefor.” D oss v. State , 709 So. 2d 369, 377 (Miss. 1997) (citing

McGowan v. State

, 541 So. 2d 1027, 1028 (Miss. 1989)). However, “[s]uch instructions

should not be granted indiscriminately , nor on the basis of pure speculation.” I d. Also, “the

accused is not entitled to the lesser offense instructio n where the evidence that proves the guilt

of the lesser offense necessarily proves his guilt of the principal charge.” Id.

¶129. This Court has already held that when a defendant kills the victim during the

commission of a burgla ry, he is not entitled to a manslaughter instruction. C oleman v. State

,

804 So. 2d 1032, 1038-39 (Miss. 2002). In Coleman this Court stated that74

Miss.Code Ann. § 97-3-27 (2000) provides: [t]he killing of a hum an being

without malice, by the act, procurement, or culpabl e negligence of another,

while such other is engaged in the perpetration of any felony except those

felonies enu

merated in Section 97-3-19(2)(e) and (f), or while such other is

attempting to commit any felony besides such as are above enumerated and

excepted, shall be manslaughter. Burglary is one of the felonies listed in

Miss.Code Ann. § 97-3-19(2)(e) that is excepted by the manslaughter statute.

In a case similar to the one at bar, this Court held that a defendan t who killed a

victim during the commission of rape and armed robbery was not entitled to

manslaughter instruction. B lue v. State

, 674 So. 2d 1184, 1201 (Miss. 1996),

o verruled on other grounds, K ing v. State

, 784 So. 2d 884 (Miss. 2001). The

Court reas oned that like burglary, rape and robbery are also felonies excepted

by the manslaughter statute. 674 So.2d at 1201.

840 So. 2d at 1038-39. Hodges was charged with a felony excepted by the manslaughter

statute, burglary of Cora and Isaac Johnson’s home. Moreover, the evidence at trial was clear

that Hodges committed burglary. Hodges was told by Cora several times that he was not

allowed in her house. The night of the incident, Hodges was specifically told by Cora that she

did not want him to come over and that she was going to bed. After talking to Cora, Hodges

decided to go over to her house anyway. Before he went to Cora’s house, he went home

changed into all black clothes and a ski mask. He then got his mother’s gun and her car and

drove to Cora’s house where he parked the car two houses down. Hodges, armed with a gun

and dressed in all black, forced the back door open. While prying the door open, Hodges left

p ry marks on the door and fresh insulation from the door was left scattered on the floor a round

the door frame. Cora testified that Hodges told her that he came over for the purpose of

s hooting her and her mother (if she had been home). Clearly, Hodges broke into the house and

entered it with the intent to assault.

¶130. In sum, the trial court did not commit reversible error by refusing the manslaughter

instructions. This Court has previously held that if the killing was committed during the75

commission of one of the enumerated felonies in Miss.Code Ann. § 97-3-12(2)(e), one of

which is burglary, capital murder is proven and the defend ant is not entitled to a manslaughter

instru ction. Id. (citing B lue

, 674 So.2d at 1201). The evidence is clear. Isaac Johnson was

murdered during the commission of a burglary of Isaac and Cora Johnson’s home.

¶131. Furthermore, since there was no evidentiary basis in the r ecord for the lesser

instruction of trespass, the trial court did not err in denying that instruction. Also, “the

accused is not entitled to the lesser offense instruction where the evidence that proves the guilt

of the lesser offens e necessarily proves his guilt of the principal charge.” D oss

, 709 So. 2d

at 377. Therefore this issue is without merit.

13. Proof of Kidnaping.

¶132. Hodges claims that the State failed to meet its burden of proof on the kidnaping charge

and that the trial court erred in denying his reques t for a direct verdict and motion for new trial.

Hodges contends that there was insufficient evid ence to prove that Cora Johnson was confined

against her will and the guilty verdict was against the overwhelming weight of the evidence.

¶133. As to the legal sufficiency, this Court has held that reversal can only occur when

evidence of one or more of the elements of the charged offense is such that “reasonable fair

minded jurors could only find the accused not guilty.” S tevens v. State

, 806 So. 2d 1031,

1058 (Miss. 20 01) (citing P inkney v. State

, 538 So. 2d 329, 353 (Miss. 1988). As to the

weight of the evidence, this Court has held that it ha s limited authority to interfere with a jury

verdict. M

cFee v. State

, 511 So. 2d 130, 133-34 (Miss. 1987). This Court looks at all the

evidence in the light that is most consistent to the jury verdict. I d. The prosecution is given

“the benefit of all favora

ble inferences that may reasonable be drawn from the evidence.” I d.76

“In determining whether a jury verdict is against overwhelming weight of the evidence, this

Court must accept as true the evidence which supports the verdic t and will reverse only when

convinced that the circuit court abused its discretion in failing to grant a new trial.” H err ing

v. State

, 691 So. 2d 948, 957 (Miss. 1997) (citing Tho rnhill v. State , 561 So. 2d 1025, 1030

(Mis s. 1989)). This Court must accept as true the evidence favorable to the State. W etz v.

State , 503 So. 2d 803, 812 (Miss. 1987).

¶134. Hodges argues that the verdict is against the overwhelming weight of the evidence and

the evidence shows that Cora Johnson went with him voluntarily. However, this Court finds

that there is ample evidence presented by the State to establish that Cora J ohnson was taken

against her will.

¶135. Hodges came to the Johnson h ouse dressed in all black, wearing black gloves, wearing

a beige ski mask and carrying a g un. After shooting Isaac Johnson, Hodges went to Cora’s

bedroom where she had just woken up. She testified that she could not remember what exactly

woke her up but when she woke up she saw a person dressed in all black and wearing a mask

coming towa

rds her room. When the person spoke Cora knew that it was Quintez Hodges.

Hodges came int o her room and told her to get her stuff and that she was coming with him.

Cora responded and told him that she was not going anyw here with him. When Cora told him

no Hodges took his gun and hit her across the head . Dr. Joel Butler, who later examined Cora,

testified that above her left eyebro w on her left temple there was mild swelling and faint

bruisi n g which was consistent with being hit with a blunt object such as a fist. After being hit

in the head, Cora picked up her baby, the baby’s bottle and went to get some diapers. While she

was gathering some things for the baby, Hodges left the room and headed in the direction of77

the living room. Cora headed across the hall into her mother’s room so that she could call 9-1-

1. She saw her brother sitting against the wall and whispered to him to call the police. At this

time she was not aware o f the fact that Hodges had already shot her brother. As she was

walking out of her mother’s room, Hodges grabbed her ar m and told her not to forget what he

had told her earlier

– that he had a gun and to not act stupid. She testified that she did not want

to go with him but he grabbed her and pu lled her out the door and had the gun pointed at her

side. After pushing her and the baby into the car, Hodges took her to Alabama. During the trip

to Alabama, Hodges forced Cora in to the back seat and raped her with the gun pointed to her

head.

¶136. Hodges c laims that the evidence supports that Cora went with Hodges voluntarily.

Hodges argues that while they had stopped at a store to get milk for the baby, Cora could have

escaped or yelled if she did not want to be there. However, Cora was fifteen years old at the

time and had her eleven-month- old baby girl with her. Hodges went into the store but informed

her that he would be watching. Cora said that she did not do anything because Hodges had a gun

and she was afra

i d that he would shoot her or her baby. Cora stated that she “wasn’t going to

jump out of the car and run because [she] was in fear of [her] life and [her] child’s life.”

Hodges had already informed her that h e shot her brother and the reason he had gone to her

house that night was to shoot her or her mother if she had been there. She was afraid that is she

tried to run Hodges would have shot them. Furthermore, it would have been hard for her to run

while holding and protecting her baby.

¶137. Taking all the evidence favor able to the State as true, this Court holds that the verdict

was not against the overwhel ming weight of the evidence. When dealing with the legal78

sufficiency of the evi

dence, this Court can only reverse the jury verdict if “reasonable fair

minded jurors could only find the accused not guilty.” S teven s , 806 So. 2d at 1058 (emphasis

added). There is ample evidence to where the jury could have found that Cora did not go

voluntarily. This issue is without merit.

15. Avoiding Lawful Arrest Aggravator.

¶138. Hodges claims that the jury was improperly instructed to consider the aggravating

factor that, the “Capital Murder was committed for the purpose of avoiding a lawfu l arrest.”

Hodges claims t

hat there was no evidence to support the inference that a substantial reason for

killing Johnson was to conceal the identity of the kill er or to cover his tracks so as to avoid

a rrest or apprehension

. H odges also asserts that any later act after the killing is irrelevant

since the wish to avoid arrest mus t be the substantial reason for the killing. The State claims

that this issue is barred from consideration because Hodges never raised this issue at trial.

However, Hodges is not barred from raising this issue because the record clearly shows that

Hodges objected to the use of this aggravating factor.

¶139. Under Mississippi la w, the death penalty may be imposed only where the jury

unanimously finds in writing that sufficient aggravating circumstances exist. Miss. Code Ann.

§ 99-19-101(3)(b) (Rev. 2000). One such aggravating factor requires the jury to consider

whether “[t]he capital offense was committed for the purpose of avoiding or preventing a lawful

arrest or effecting an escape from custody.” Miss. Code Ann. § 99-19- 101(5)(e) (Rev. 2000).

¶140. The standard for reviewing the sufficiency of the evidence to support an “avoiding lawful

arrest” instruction is well settled:79

Each case must be decided on its peculiar fact sit uation. If there is evidence

from which it may be reasonabl y inferred that a substantial reason for the killing

was to conceal the identity of the killer or killers or to 'cover their tracks’ so as

to avoid apprehension and eventual arrest by authorities, then it i s proper for the

court to allow the jury to consider this aggravating circumstance.

Brown v. State

, 682 So. 2d 340, 355 (Miss. 1996) (citing Leath erwood v. State , 435 So. 2d

645, 651 (Miss. 1983)). “[I]t is this Court’s role to inquire into whether there is any credible

evidence upon which the jury could find the agg ravating circumstance in question.” C arr v.

State

, 655 So. 2d 824, 854 (Miss. 1995) (quoting Lanier v. State

, 533 So. 2d 473, 490 (Miss.

1988)). “[J]urors are entitled to make the logical connection between the injuries suffered and

finding an inference that the defendant murdered his vi ctim to avoid arrest.” H olland v. State

,

705 So. 2d 307, 355 (Miss. 1997 ). The defendant’s efforts to avoid arrest after the murder

may also be considered in connection with this aggravator. Id. at 355-56.

¶141. Hodges burglarized the home with the intent to commit an assault. Cora testified that

Hodges informed her that the reason he went to her house that night was to kill her and her

mother if she had been there. Before arriving at Cora’s house, Hodges went home and changed

into black clothes, black g loves and a beige ski mask. Hodges did not park in the driveway to

the house but parked two houses down . The jury could have easily concluded that Hodges

disguised himself in order to conceal his identity and when Isaac still recognized him, Hodges

shot him in order to avoid apprehension and eventual arrest. Since efforts to avoid arrest after

the murder may also be consid ered, there is ample evidence of Hodges’ continued attempts to

avoid arrest. After shooting Isaac, Hodges took the phone off the hook. The jury could have

concluded that this was done in order to keep Isaac from calling 911 after he was shot. Hodges

also kidnaped Cora and her baby and fled the St ate. On the way to Alabama, Hodges made Cora80

throw his ski mask out the window of the car. This Court has held that efforts to dispose of

and/or conceal the evidence of the crime are sufficient to support the avoid ing arrest

instru ction. Wiley v. State , 750 So. 2d 1193, 1206 (Miss. 1999). To further conceal evidence

of his crime, Hodges and his sister hid the gun that was used to shoot Isaac.

¶142. This Court finds ample evi dence in the record from which it may be reasonably inferred

that a sub stantial reason for the killing was to conceal the identity of the killer or killers o r to

‘cove r their tracks’ so as to avoid apprehension and eventual arrest by authorities. The

“avoiding lawful arrest” aggravating circumstance was properly submitted to the jury. This

issue is without merit.

16. Double Jeopardy.

¶143. Hodges claims that the trial court erred in sentencing him to a term of twenty years for

kidnaping in

violation of the Double Jeopardy Clause. Hodges argues that by using Count II

of kidnaping as an aggravating circumstance is punishing Hod ges for the crime of kidnaping

twice, which is contrary to constitutional law. Citing R ing and Apprendi

, Hodg es claims that

when the state seeks death charging that the capital murder was committed during the course

of a separately charged felony as an aggravating circumstanc e, a Mississippi defendant may not

be punished separately for that felony without violating double jeopardy. The State claims that

this issue i

s barred from consideration because Hodges never raised this issue at trial.

However, Hodges is not barred from raising this issue because the record clearly shows that

Hodges objected to the use of this aggrava ting factor. Hodges also filed a motion to bar the

use of this aggravator.81

¶144. This Court has approved the use of the convi ction of crimes in other counts of the

indictment as aggravating circumstances in the sentencing phas e. Goodin v. State , 787 So. 2d

639, 654 (Miss. 2001) (citing Blue v. State , 674 So. 2d 1184, 1218 (Miss. 1996)). In

Goodin

, the defendant was convicted of capital murder with the underlying felony of kidnaping

and was also convi cted of armed robbery. I d. at 643. This Court held that the crimes of

kidnaping and robbery were separate and dist inct acts constituting two separate circumstances

and that they we re properly before the jury to assist in determining whether to impose a

sentence of death. I

d. at 655. Relying on B lue

, this Court reaso ned that aggravating

circumstances carry no penalty. I d. at 654. “The only purpose aggravating circumstances serve

is to narr ow the class of individuals most worthy of receiving the death penalty and to furnish

guidance to the jury in determining whether to impose a senten ce of death in a capital murder

case.” Id.

¶145. The case sub judice is factual ly similar to G oodin

. Hodges was convicted of capital

murder with the underlying felony of burglary and was also convicted of kidnaping. The crimes

of kidnaping and burglary are separate and dis tinct acts constituting two separate

circumstances. Therefore, they were properly before the jury to assist in determining whether

to impose the sentence o f death. Furthermore, Hodges’ reliance A pprendi and Ring is

m isplaced for the same reasons as discussed above. This Court has held that the use of two

distin ct acts as aggravating circumstances is proper. G oodin

, 787 So. 2d at 655. Under Miss.

Code Ann. § 1-3-4 (Rev. 1998), the maximum punishment of a person convicted of capital

murder is death. Therefore, A pprendi is inapplicable becaus e unlike Arizona’s statutory82

scheme that required a finding of an aggravating circumstance to make a defendant death

eligible, Mississippi’s law defines that convictions of certain crimes render the defendant

dea th eligible. Thus, after Hodges was convicted of capital murder, he became eligible for the

death penalty. The jury then made the appropriate determinations of aggravating and mitigating

circumstances and determined that there were insufficient mitigating circumstances to

outweigh the aggravating circumstances, and that the defenda nt should suffer death. As

discussed more fully above, it is clear that A pprendi and Ring are not applicable to

Mississippi law. Therefore, this issue is without merit.

¶146. Hodges also claims t hat Hodges could not be punished for kidnaping and capital murder

with kidnaping as an underlying felo ny. Hodges cites M eeks v. State

, 604 So. 2d 748, 752

(Miss. 1992), for the proposition that a defendant could not be punished separately for

kidnaping and capital murder with kidnaping as the underlying felony. However, M eeks does

not apply to the case sub judice because Ho dges was convicted of capital murder with burglary

and not kidnaping as the underlying felony.

17. Record of Jury Instructions.

¶147. Hodges claims error in the fact that the jury instructions were not transcribed as part

of the trial reco rd, even though such action was requested by the attorneys at trial. Hodges

claims that the trial

court’s failure to secure a transcription of the jury instructions deprived

him of a fair trial and a fair review of th at trial on appeal, requiring reversal of his conviction

and sentence. The State claims that Hodges is procedurally barred from raising this issue. In

the instant case, Hodges failed to comply with M.R.A.P. 10(b)(5), which required him to bring

such issue to the court reporter’s attention within fourteen day s. This Court has held on83

numerous occasions that

“it is the duty of the appellant to see that the record of the trial

proceedings wherein error is claim[ed] is brought before this Co urt.” Jackson v. State , 684

So. 2d 1213, 1226 (M iss. 1996) (quoting S mith v. State

, 572 So. 2d 847, 849 (Miss. 1990)).

Therefore, this issue is procedurally barred. Procedural bar notwithstanding, this Court will

consider this issue on the merits.

¶148. This Court has held that wh en the defendant does not claim any error from the

proceedings which are missing fr om the record the defendant is not prejudiced by the

unfortunate missing portion s of the record and reversal is not required. W atts v. State

, 717

So. 2d 314, 317 (Miss. 1998). In the case sub judice, Hodges does not claim any specific

error from the proceedings which were missing, i.e., the transcription of the jury instructions.

Therefore, this Court holds that Hodges is not prejudiced by the missing portions of the

record. Furthermore, the case sub judice is also similar to S immons v. State

, 805 So. 2d 452,

506 (Miss. 2001), where this Court hel d that it was difficult to ascertain exactly what effect

the inclusion of the absent jury instructions would have achieved. In S immons , a true copy of

the jury instructions were missing from the record but affidavits and copies of transcripts of

the instructions being read were included within the record. I d. This Court held that the

record was sufficient to analyze all of the issues and properly review the case. Id.

¶149. Hodges does not claim any error f rom the proceedings which are missing from the

record. Even though there was no transcription of the instructions read to the jury, copies of

al l the instructions which were read to the jury are included in the court’s papers. Furthermore,

the partie s and the court conducted thorough and detailed, on the record hearings concerning

the jury instructions. The record also indicates that the jury instructions were read to the jury2 In Hansen , likewise a death penalty case, this Court found that the trial court had

committed three errors during the guilt phase, but “we nonetheless hold the errors in this

case, given their cumulative effect upon the penalty phase, harmless beyond a reasonable

doubt.” 592 So.2d at 153.

84 by the Judge. Since the instructions were included in the court’s papers Hodges was not denied

a fair review of trial on appeal. This was sufficient to analyze all of the issues and properly

review the case and since Hodges does not raise any error from this portion of the

proceedings, this issue lacks merit.

18. Cumulative Error.

¶150. Hodges asks this Court to reverse his conviction based upon the combined effect of all

of the alleged errors at his trial. He argues that when viewing the prejudicial impact of the

array of all the errors raised, that it cannot be said that Hodges’ trial met the exacti ng standards

of reliability required by the Constitution. In M anning v . State , 726 So.2d 1152, 1198 (Miss.

1998) (capital murder convictions and death sentence affirmed), after ad d ressing 21

assignments of error with sub-parts, and after making numerous findings of n o “reversible

error,” we stated:

T his Court has held that individual errors, not reversible in themselves, may

combine with other errors to make up reversible error. H ansen v. State

, 5 9 2

So.2d 114, 142 (Miss. 1991);[ 2 ] G riffin v. State

, 557 So.2d 542, 553 (Miss.

1990). The question under these and other cases is whether the cumulative

effect of all errors committed during the trial deprived the defendant of a

fundamenta

lly fair and impartial trial. Where there is “no reversible error in any

part,

. . . there is no reversible error to the whole.” M

cFee v. State

, 511 So.2d

130, 136 (Miss. 1987).85

Additionally, this Court has held that a murder conviction or a death sentence will not warrant

reversal where the cumulative effect of alleged errors, if a ny, was procedurally barred. D oss

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

¶151. This Court holds that since there is no merit in any of Hodges’ assi gnments of error and

some of his alleged errors were procedurally barred, we refuse to reverse his conviction b ased

upon cumulative error. Cumulatively, these asserted errors do not warrant reversal.

19. Proportionality Review

¶152. This Court must also review the death sentence in accordance with Miss. Code Ann.

§ 99-19-105(3) (Rev. 2000), which states:

(3) With regard to the sentence, the court shall determine:

(a) Whether the sentence of death was imposed under t he influence of passion,

prejudice or any other arbitrary factor;

(b) Whether the evidence supports the jury's or the judge' s finding of a statutory

aggravating circumstance as enumerated in Section 99-19-101;

(c) Whether the sentence of death is excessive or disproportionate to the

penalty imposed in similar ca s es, considering both the crime and the defendant;

and

(d) Should one or more of the aggravating circumstances b e found invalid on

appeal, the Mississippi Supreme Court shall determ ine whether the remaining

aggravating circumstances are outweighed by the mitigating circumstances or

whether the inclusion of any invalid circumstance was harmless error or both.

¶153. Under this analysis, t here is no evidence supporting a finding that the death sentence was

imposed under the influence of passion, prejudice or any other arbitrary factor. As previously

discussed, the evidence supports the tr ial court’s finding that the statutory aggravating factors

of burglary, kidnaping, avoiding or preventing a lawful arrest and under a sentence of

imprisonment were proven beyond a reasonable doubt. Upon comparison to other factually

similar cases where the death sentence was imposed (see Appendix A), the sentence of death86

is not disproportionate in this case. Imposition of the death penalty on Hodges is neither

excessive nor disproportionate in comparison to his crime. Furthermore, the sentence of

death is not excessive or disproportionate to factually similar cases, despite the age of Hodges

when the crime was committed. Having given individualized consideration to Hodges and the

crime in the present case, this Court concludes that there is nothing about Hodges or his crime

that would make the death penalty excessive or disproportionate in this case.

¶154. Furthermore, the United States Supreme Cour t, on March 1, 2005, handed down R oper

v. Simmons

, 543 U.S.

___, No. 03-633, slip op. at 25 (March 1, 2005), holding that the “Eighth

and Fourteenth A

mendments forbid imposition of the death penalty on offenders who were

under the age of 18 when t heir crimes were committed.” In the present case Hodges was born

on October 14, 1980. Hodges committed capital murder in the early morning of July 21,

1999. Hodges was 18 years old when he committed the crime of capital murder of Isaac

John s on. Therefore, Hodges was not under the age of 18 when he committed the crime of

capital murder, and Roper does not apply to this case. The imposition of the death penalty on

Hodges does not violate the Eighth and Fourteenth Amendments.

CONCLUSION

¶155. For these reasons, we affirm the judgment of the Lowndes County Circuit Court.

¶156. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH

BY LETHAL INJECTION, AFFIRMED. COUNT II: CONVICTION OF KIDNAPPING

AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISS I PPI

DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER AND COBB, P.JJ. , EASLEY, CARLSON, DICKINSON AND

RANDOLPH, JJ., CONCU R. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J.,

NOT PARTICIPATING.lxxxvii APPENDIX

DEATH CASES AFFIRMED BY THIS COURT

Brown v. State, 890 So. 2d 901 (Miss. 2004).

Powers v. State 883 So.2d 20 (Miss. 2004)

Branch v. State, 882 So.2d 36 (Miss. 2004).

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

Lynch v. State, 877 So.2d 1254 (Miss. 2004).

Dycus v. State, 875 So.2d 140 (Miss. 2004).

Byrom v. State, 863 So.2d 836 (Miss. 2003).

Howell v. State, 860 So.2d 704 (Miss. 2003).

Howard v. State, 853 So.2d 781 (Miss. 2003).

Walker v. State, 815 So.2d 1209 (Miss. 2002). *following remand.

Bishop v. State

, 812 So.2d 934 (Miss. 2002).

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

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

Knox v. State, 805 So.2d 527 (Miss. 2002).

Simmons v. State, 805 So.2d 452 (Miss. 2002).

Berry v. State, 802 So.2d 1033 (Miss. 2001).

Snow v. State , 800 So.2d 472 (Miss. 2001).

Mitchell v. State, 792 So.2d 192 (Miss. 2001).

Puckett v. State, 788 So.2d 752 (Miss. 2001). * following remand.

Goodin v. State, 787 So.2d 639 (Miss. 2001).

Jordan v. State, 786 So.2d 987 (Miss. 2001).

Manning v. State, 765 So.2d 516 (Miss. 2000). *following remand.

Eskridge v. State, 765 So.2d 508 (Miss. 2000).

McGilberry v. State, 741 So. 2d 894 (Miss. 1999)

.lxxxviii

Puckett v. State, 737 So. 2d 322 (Miss. 1999). *remanded for Batson hearing.

DEATH CASES AFFIRMED BY THIS COURT

(continued)

Manning v. State, 735 So. 2d 323 (Miss. 1999). *remanded for Batson hearing.

Hughes v. State, 735 So. 2d 238 (Miss. 1999).

Turner v. State, 732 So. 2d 937 (Miss. 1999).

Smith v. State, 729 So. 2d 1191 (Miss. 1998).

Burns v. State, 729 So. 2d 203 (Miss. 1998).

Jordan v. State, 728 So. 2d 1088 (Miss. 1998).

Gray v. State, 728 So. 2d 36 (Miss. 1998).

Manning v. State, 726 So. 2d 1152 (Miss. 1998).

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

Bell v. State, 725 So. 2d 836 (Miss. 1998).

Evans v. State, 725 So. 2d 613 (Miss. 1997).

Brewer v. State, 725 So. 2d 106 (Miss. 1998).

Crawford v. State, 716 So. 2d 1028 (Miss. 1998).

Doss v. State, 709 So. 2d 369 (Miss. 1996).

Underwood v. State, 708 So. 2d 18 (Miss. 1998).

Holland v. State, 705 So. 2d 307 (Miss. 1997).

Wells v. State, 698 So. 2d 497 (Miss. 1997).

Wilcher v. State, 697 So. 2d 1087 (Miss. 1997).

Wiley v. State, 691 So. 2d 959 (Miss. 1997).

Brown v. State , 690 So. 2d 276 (Miss. 1996).

Simon v. State , 688 So. 2d 791 (Miss.1997).

Jackson v. State , 684 So. 2d 1213 (Miss. 1996).

Williams v. State, 684 So. 2d 1179 (Miss. 1996).

Davis v. State, 684 So. 2d 643 (Miss. 1996).lxxxix

Taylor v. State , 682 So. 2d. 359 (Miss. 1996).

Brown v. State , 682 So. 2d 340 (Miss. 1996).

DEATH CASES AFFIRMED BY THIS COURT

(continued)

Blue v. State , 674 So. 2d 1184 (Miss. 1996).

Holly v. State , 671 So. 2d 32 (Miss. 1996).

Walker v. State , 671 So. 2d 581(Miss. 1995).

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

Ballenger v. State , 667 So. 2d 1242 (Miss. 1995).

Davis v. State , 660 So. 2d 1228 (Miss. 1995).

Carr v. State , 655 So. 2d 824 (Miss. 1995).

Mack v. State , 650 So. 2d 1289 (Miss. 1994).

Chase v. State , 645 So. 2d 829 (Miss. 1994).

Foster v. State , 639 So. 2d 1263 (Miss. 1994).

Conner v. State , 632 So. 2d 1239 (Miss. 1993).

Hansen v. State , 592 So. 2d 114 (Miss. 1991).

*Shell v. State

, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi

, 498 U.S. 1 (1990)

reversing, in part, and remand ing, Shell v. State , 595 So. 2d 1323 (Miss. 1992)

remanding for new sentencing hearing.

Davis v. State , 551 So. 2d 165 (Miss. 1989).

Minnick v. State , 551 So. 2d 77 (Miss. 1989).

*Pinkney v. Stat e

, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi

, 494 U.S.

1075 (1990) vacating and remanding Pinkney v. State

, 602 So. 2d 1177 (Miss . 1992)

remanding for new sentencing hearing.

*Clemons v. State

, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi

, 494 U.S.

738 (1990) vacating and remanding, C lemons v. State

, 593 So. 2d 1004 (Miss. 1992)

remanding for new sentencing hearing.

Woodward v. State , 533 So. 2d 418 (Miss. 1988).iv

Nixon v. State , 533 So. 2d 1078 (Miss. 1987).

Cole v. State , 525 So. 2d 365 (Miss. 1987).

DEATH CASES AFFIRMED BY THIS COURT

(continued)

Lockett v. State , 517 So. 2d 1346 (Miss. 1987).

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

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

*Jones v. State

, 517 So. 2d 1295 (Miss. 1987)

, Jones v. Mississi

ppi , 487 U.S. 1230

(1988) vacating and reman ding, J ones v. State

, 602 So. 2d 1170 (Miss. 1992) remanding

for new sentencing hearing.

Wiley v. State , 484 So. 2d 339 (Miss. 1986).

Johnson v. State , 477 So. 2d 196 (Miss. 1985).

Gray v. State , 472 So. 2d 409 (Miss. 1985).

Cabello v. State , 471 So. 2d 332 (Miss. 1985).

Jordan v. State , 464 So. 2d 475 (Miss. 1985).

Wilcher v. State , 455 So. 2d 727 (Miss. 1984).

Billiot v. State , 454 So. 2d 445 (Miss. 1984).

Stringer v. State , 454 So. 2d 468 (Miss. 1984).

Dufour v. State , 453 So. 2d 337 (Miss. 1984).

Neal v. State , 451 So. 2d 743 (Miss. 1984).

Booker v. State , 449 So. 2d 209 (Miss. 1984).

Wilcher v. State , 448 So. 2d 927 (Miss. 1984).

Caldwell v. State , 443 So. 2d 806 (Miss. 1983).

Irving v. State , 441 So. 2d 846 (Miss. 1983).

Tokman v. State , 435 So. 2d 664 (Miss. 1983).

Leatherwood v. State , 435 So. 2d 645 (Miss. 1983).i

Hill v. State , 432 So. 2d 427 (Miss. 1983).

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

Gilliard v. State , 428 So. 2d 576 (Miss. 1983).

Evans v. State , 422 So. 2d 737 (Miss. 1982).

DEATH CASES AFFIRMED BY THIS COURT

(continued)

King v. State , 421 So. 2d 1009 (Miss. 1982).

Wheat v. State , 420 So. 2d 229 (Miss. 1982).

Smith v. State , 419 So. 2d 563 (Miss. 1982).

Johnson v. State , 416 So. 2d 383 (Miss.1982).

Edwards v. State , 413 So. 2d 1007 (Miss. 1982).

Bullock v. State , 391 So. 2d 601 (Miss. 1980).

Reddix v. State , 381 So. 2d 999 (Miss. 1980).

Jones v. State , 381 So. 2d 983 (Miss. 1980).

Culberson v. State , 379 So. 2d 499 (Miss. 1979).

Gray v. State , 375 So. 2d 994 (Miss. 1979).

Jordan v. State , 365 So. 2d 1198 (Miss. 1978).

Voyles v. State , 362 So. 2d 1236 (Miss. 1978).

Irving v. State , 361 So. 2d 1360 (Miss. 1978).

Washington v. State , 361 So. 2d 6l (Miss. 1978).

Bell v. State , 360 So. 2d 1206 (Miss. 1978).

* Case was originally affirmed in this Court but on remand from U. S. Supreme Court,

case was remanded by this Court for a new sentencing hearing.ii DEATH CASES REVERSED AS TO GUILT PHASE

AND SENTENCE PHASE

Flowers v. State, 842 So.2d 531 (Miss. 2003).

Randall v. State, 806 So. 2d 185 (Miss. 2002).

Flowers v. State, 773 So.2d 309 (Miss. 2000).

Edwards v. State, 737 So. 2d 275 (Miss. 1999).

Smith v. State, 733 So. 2d 793 (Miss. 1999).

Porter v. State, 732 So.2d 899 (Miss. 1999).

Kolberg v. State, 704 So. 2d 1307 (Miss. 1997).

Snelson v. State, 704 So. 2d 452 (Miss. 1997).

Fusilier v. State

, 702 So. 2d 388 (Miss. 1997).

Howard v. State, 701 So. 2d 274 (Miss. 1997).

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

Hunter v. State , 684 So. 2d 625 (Miss. 1996).

Lanier v. State , 684 So. 2d 93 (Miss. 1996).

Giles v. State

, 650 So. 2d 846 (Miss. 1995).

Duplantis v. State , 644 So. 2d 1235 (Miss. 1994).

Harrison v. State , 635 So. 2d 894 (Miss. 1994).

Butler v. State , 608 So. 2d 314 (Miss. 1992).

Jenkins v. State , 607 So. 2d 1171 (Miss. 1992).

Abram v. State , 606 So. 2d 1015 (Miss. 1992).

Balfour v. State , 598 So. 2d 731 (Miss. 1992).

Griffin v. State , 557 So. 2d 542 (Miss. 1990).

Bevill v. State , 556 So. 2d 699 (Miss. 1990).

West v. State , 553 So. 2d 8 (Miss. 1989).

Leatherwood v. State , 548 So. 2d 389 (Miss. 1989).

Mease v. State , 539 So. 2d 1324 (Miss. 1989).iii DEATH CASES REVERSED AS TO GUILT PHASE

AND SENTENCE PHASE

( continued

)

Houston v. State , 531 So. 2d 598 (Miss. 1988).

West v. State , 519 So. 2d 418 (Miss. 1988).

Davis v. State , 512 So. 2d 129l (Miss. 1987).

Williamson v. State , 512 So. 2d 868 (Miss. 1987).

Foster v. State , 508 So. 2d 1111 (Miss. 1987).

Smith v. State , 499 So. 2d 750 (Miss. 1986).

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

Fisher v. State , 481 So. 2d 203 (Miss. 1985).

Johnson v. State , 476 So. 2d 1195 (Miss. 1985).

Fuselier v. State , 468 So. 2d 45 (Miss. 1985).

West v. State , 463 So. 2d 1048 (Miss. 1985).

Jones v. State , 461 So. 2d 686 (Miss. 1984).

Moffett v. State , 456 So. 2d 714 (Miss. 1984).

Lanier v. State , 450 So. 2d 69 (Miss. 1984).

Laney v. State , 421 So. 2d 1216 (Miss. 1982).i DEATH CASES REVERSED

AS TO PUNISHMENT AND REMANDED

FOR RESENTENCING TO LIFE IMPRISONMENT

Reddix v. State , 547 So. 2d 792 (Miss. 1989).

Wheeler v. State , 536 So. 2d 1341 (Miss. 1988).

White v. State , 532 So. 2d 1207 (Miss. 1988).

Bullock v. State , 525 So. 2d 764 (Miss. 1987).

Edwards v. State , 441 So. 2d 84 (Miss. l983).

Dycus v. State , 440 So. 2d 246 (Miss. 1983).

Coleman v. State , 378 So. 2d 640 (Miss. 1979).ii DEATH CASES REVERSED AS TO

PUNISHMENT AND REMANDED FOR A NEW TRIAL

ON SENTENCING PHASE ONLY

King v. State, 784 So.2d 884 (Miss. 2001).

Walker v. State, 740 So.2d 873 (Miss. 1999).

Watts v. State, 733 So.2d 214 (Miss. 1999).

West v. State, 725 So. 2d 872 (Miss. 1998).

Smith v. State , 724 So. 2d 280 (Miss. 1998).

Berry v. State, 703 So. 2d 269 (Miss. 1997).

Booker v. State , 699 So. 2d 132 (Miss. 1997).

Taylor v. State , 672 So. 2d 1246 (Miss. 1996).

* Shell v. State

, 55 4 So. 2d 887 (Miss. 1989), S hell v. Mississippi

, 498 U.S. 1 (1990)

reversing, in part, and remanding, Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding

for new sentencing hearing.

* P inkney v. S tate , 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075

(1990) vacating and remanding, P inkney v. State

, 602 So. 2d 1177 (M iss. 1992)

remanding for new sentencing hearing.

*Clemons v. State , 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi , 494 U.S.

738 (1990) vacating and remanding, C lemons v. State , 593 So. 2d 1004 (Miss. 1992)

remanding for new sentencing hearing.

*Jones v. State , 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi

, 487 U.S. 1230

(1988) vacating and remanding, J ones v. State

, 602 So. 2d 1170 (Miss. 1992) remand ing

for new sentencing hearing.

Russell v. State , 607 So. 2d 1107 (Miss. 1992).

Holland v. State , 587 So. 2d 848 (Miss. 1991).

Willie v. State , 585 So. 2d 660 (Miss. 1991).

Ladner v. State , 584 So. 2d 743 (Miss. 1991).

Mackbee v. State , 575 So. 2d 16 (Miss. 1990).iii DEATH CASES REVERSED AS TO

PUNISHMENT AND REMANDED FOR A NEW TRIAL

ON SENTENCING PHASE ONLY

(continued)

Berry v. State , 575 So. 2d 1 (Miss. 1990).

Turner v. State , 573 So. 2d 657 (Miss. 1990).

State v. Tokman , 564 So. 2d 1339 (Miss. 1990).

Johnson v. State , 547 So. 2d 59 (Miss. 1989).

Will iams v. State , 544 So. 2d 782 (Miss. 1989); s entence aff'd 684 So. 2d 1179 (1996).

Lanier v. State , 533 So. 2d 473 (Miss. 1988).

Stringer v. State , 500 So. 2d 928 (Miss. 1986).

Pinkton v. State , 481 So. 2d 306 (Miss. 1985).

Mhoon v. State , 464 So. 2d 77 (Miss. 1985).

Cannaday v. State , 455 So. 2d 713 (Miss. 1984).

Wiley v. State , 449 So. 2d 756 (Miss. 1984); resentencing affirmed, W iley v. State

, 484

So. 2d 339 (Miss. 1986), cert. denie d Wiley v. Mississippi , 479 U.S. 1036 (1988);

resentencing ordered, Wiley v. State

, 635 So. 2d 802 (Miss. 1993) following writ of

habeas corpus issued pursuant to Wi ley v. Puckett , 969 F. 2d 86, 105-106 (5 t h Cir. 1992);

resentencing affirmed, Wiley v. State

, 95-DP-00149, Februar y 13, 1997 (rehearing

pending).

Williams v. State

, 445 So. 2d 798 (Miss. 1984). * Case was originally affirmed in this

Court but on remand from U. S. Supreme Cou rt, case was remanded by this Court for a

new sentencing hearing.