IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-DR-00301-SCT

EARL WESLEY BERRY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 6/25/1992

TRIAL JUDGE: HON. R. KENNETH COLEMAN

COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION

COUNSEL

BY: TERRY L. MARROQUIN

 ROBERT M. RYAN

 WILLIAM J. CLAYTON

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: MARVIN L. WHITE, JR.

DISTRICT ATTORNEY: LAWRENCE L. LITTLE

NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST

CONVICTION

DISPOSITION: APPLICATION FOR LEAVE TO FILE

PETITION FOR POST-CONVICTION

RELIEF DENIED - 07/01/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. Earl Wesley Berry was convicted of capital murder in the Circuit Court of Chickasaw

County and sentenced as a habitual offender to death for the kidnaping and murder of Mary

Bounds. On appeal, we affirmed the jury's verdict of guilty but vacated the death sentence
2

and remanded for resentencing. Berry v. State, 575 So. 2d 1 (Miss. 1990), cert. denied, 500

U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126 (1991) (“Berry I” ). 

¶2. On resentencing, due to the nature and the extent of pretrial publicity, venue was

changed to the Circuit Court of Union County. Again he was sentenced to death. Berry v.

State, 703 So. 2d 269, 273 (Miss. 1997) (“Berry II”). On appeal, we affirmed the sentence

on all grounds except for the issue of jury selection under Powers v. Ohio, 499 U.S. 400, 111

S. Ct. 1634, 113 L. Ed. 2d 411 (1991), and Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986). Berry II, 703 So. 2d at 295. We remanded the case for a

hearing on whether in exercising its peremptory challenges the State violated Batson. 

¶3. Following the Batson hearing, the circuit court held that Berry failed to establish a

prima facie case of purposeful discrimination and that the strikes made by the State were race

neutral. We affirmed the circuit court's findings and denial of Berry's Batson motion. Berry

v. State, 802 So. 2d 1033, 1036 (Miss. 2001) (“Berry III).

¶4. Subsequently Berry filed with this Court the instant Application for Leave to File

Petition for Post-Conviction Relief. We find that the application is not well taken.

DISCUSSION

¶5. Provided there is no procedural bar, when determining whether to grant leave to seek

relief under the Mississippi Uniform Post-Conviction Collateral Relief Act, we determine

if there is substantial showing of a denial of a state or federal right. Miss. Code Ann. § 99-

31-27(5) (2000). See also Moore v. Ruth, 556 So. 2d 1059, 1061 (Miss. 1990).

I. WHETHER TRIAL AND APPELLATE COUNSEL

WERE CONSTITUTIONALLY INEFFECTIVE.
3

¶6. To establish a claim for ineffective assistance of counsel a petitioner must prove that

under the totality of circumstances (1) the counsel’s performance was deficient and (2) the

deficient performance deprived the defendant of a fair trial. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Benson v. State, 821 So. 2d

823, 825 (Miss. 2002); Burns v. State, 813 So. 2d 668, 673 (Miss. 2001). “The benchmark

for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.” Burns, 813 So. 2d at 673 (citations omitted).

¶7. With regard to the showing of deficient performance, the inquiry focuses on whether

counsel's performance fell below an objective standard of reasonableness. Strickland, 466

U.S. at 688, 104 S. Ct. at 2064. That is, consider whether the assistance was reasonable

under all the circumstances seen from counsel's perspective at the time, and the prevailing

professional norms for attorneys. Id. at 688; Burns, 813 So. 2d at 673; Neal v. State, 525

So. 2d 1279, 1281 (Miss. 1988). Because of the distorting effects of hindsight, there is a

strong presumption that counsel's conduct was within the wide range of reasonable

professional assistance. Burns, 813 So. 2d at 673.

¶8. With regard to the showing of the deprivation of a fair trial, the petitioner must show

how counsel's errors prejudiced the defense. Id. at 73-674. The petitioner must show "a

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

proceedings would have been different." Id. If the conviction is challenged, the question

is whether there is a reasonable probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 694. If the sentence is
4

challenged, the question is whether there is a reasonable probability that, absent the errors,

the sentencer–including an appellate court to the extent it independently reweighs the

evidence–would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death. Id.

¶9. Berry cites several instances as illustrations of counsel’s ineffectiveness. We must

consider whether the petition, affidavits, and trial record render it sufficiently likely that he

received ineffective assistance of counsel so that an evidentiary hearing should be held.

Neal, 525 So. 2d at 1281. 

Failure to Obtain a Change of Venue for the Trial

¶10. Emphasizing the fact that a change of venue was granted for resentencing after

Berry II, Berry claims that counsel should have secured a change of venue before the first

trial in 1988. He also points to the fact that counsel presented only three witnesses at the

hearing and argues that, since the State presented eleven witnesses, the defense's three

witnesses were woefully inadequate. 

¶11. Under Mississippi law, once a motion for change of venue which is supported by

three affidavits is filed, a presumption arises that the defendant has been prejudiced by pretrial publicity. If a defendant presents fifteen witnesses, an irrebutable presumption of

prejudice arises. See Fisher v. State, 481 So. 2d 203 (Miss. 1985); Johnson v. State, 476

So. 2d 1195, 1213 (Miss. 1985). Assuming, arguendo, that the failure to secure an

irrebuttable presumption satisfied the first prong (deficiency) under Strickland, we find that

Berry fails to show how such a failure deprived him of a fair trial. Accordingly, leave to

seek post-conviction relief of this issue is denied.
5

Failure to Object to the Change of Venue for Resentencing

¶12. Berry contends that trial counsel was ineffective for failing to object to the change of

venue to Union County, which has a twenty percent fewer African-Americans than

Chickasaw County. Berry, a Caucasian, fails to discuss how the county’s racial composition

impacted his rights or potential jurors’ rights. We considered this issue in Berry II and

found it to be procedurally barred. Berry II, 703 So.2d at 292. “Our case law is clear in that

there is no constitutional right to be tried by a jury that absolutely mirrors any particular

community.” Simon v. State, 688 So. 2d 791, 806 (Miss. 1997). This issue is without merit.

Failure to Object to the State's Improper Remarks on Credibility

¶13. Berry contends that the State improperly bolstered the credibility of Billy Gore, an

investigator for the highway patrol. We discussed this issue in Berry I and found it to be

procedurally barred. Berry I, 575 So. 2d at 9. In doing so, we went on to say that

“[s]ubstantively, broad latitude is afforded [] attorneys in closing argument, and the

prosecutor did not exceed the limits of the argument in this case.” Id. Though not asked to

admonish the jury regarding such comments, the circuit court instructed the jury that the

testimony of a police officer is entitled to no special or exclusive sanctity. Id. 

¶14. Considering such instructions and bearing in mind that the decision whether to make

certain objections falls within the ambit of trial strategy, we find that this issue is without

merit. See generally Jackson v. State, 815 So. 2d 1196, 1200 (Miss. 2002).

Failure to Object to Testimony about Berry's Status as a Habitual Offender

¶15. On resentencing during voir dire, the circuit court disclosed that Berry was a habitual

offender and later included such fact in the sentencing instructions. Berry claims that in both
6

instances counsel was ineffective by failing to object. Berry fails to clearly define how this

issue impacts his ineffective assistance of counsel claim. 

¶16. We addressed this issue in Berry I and held that in a capital case, before considering

sentencing options, a jury should be informed that the defendant has been adjudicated as an

habitual offender. Berry I, 575 So. 2d at 13-14. Actually, resentencing was ordered because

the circuit judge failed to instruct the jury that Berry was an habitual criminal. Id. at 13.

This issue is without merit. 

¶17. Berry’s argument seemingly hinges on the fact that his status was disclosed during

voir dire, rather than just prior to deliberations. The record reveals that the circuit court

worked diligently to follow the Court’s holding in Berry I. Finding that the circuit court

reasonably applied the holding Berry I, there was no cause for defense counsel to object.

Likewise, as for the inclusion in the sentencing instructions, we find that the circuit court

sought to comply formally with our holding in Berry I. 

Failure to Object to Hearsay Testimony

¶18. Berry contends that trial counsel failed to object to the hearsay testimony of the

Oktibbeha County Sheriff Dolph Bryan, a witness for the State. During resentencing, Sheriff

Bryan testified as to Berry’s previous conviction of simple assault of law enforcement officer

Jimmy McClemore. Berry claims that counsel allowed the Sheriff, though not a witness to

the attack, to testify regarding specific facts of the incident. This issue is without merit.

¶19. During the assault, Berry was shot by Officer McClemore. Trying to undermine the

conviction, the defense cross-examined the Sheriff regarding Berry’s successful civil suit
1

He received a judgment for $5,000.

2

The prosecutor commented on the facts that: 1) Bounds did not receive mercy,

justice, or mitigation; 2) by taking her away, neither Bounds’ daughter nor her husband

received mercy or justice; and 3) Berry should receive the same punishment that given to

Ms. Bounds without a hearing or jury.

7

against Officer McClemore in federal court.1 On redirect, Sheriff Bryan briefly testified as

to Officer McClemore’s physical size and his reasons for shooting Berry. 

¶20. Berry fails to discuss how counsel’s failure to object supports his ineffective

assistance of counsel but instead alleges that the testimony was improper hearsay. The

testimony was likely hearsay, but “issues which were either presented through direct appeal

or could have been presented on direct appeal or at trial are procedurally barred and cannot

be relitigated under the guise of poor representation by counsel.” Foster v. State, 687 So. 2d

1184, 1129 (Miss. 1997). Likewise, counsel’s choice whether to make certain objections

falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of

counsel claim. Jackson, 815 So. 2d at 1200.

Failure to Object to the State's Comments Comparing 

the Victim's Rights with Berry's Rights as a Criminal Defendant

¶21. During the closing argument, the State drew several comparisons between the

respective rights of Bounds and Berry. Berry claims that such an argument is prosecutorial

misconduct and that counsel failed to object and preserve the issue for appeal.2

 We find that

the comments were egregious and possibly rose to the level of prosecutorial misconduct.

However, the failure to object does not render counsel’s performance ineffective.
8

¶22. To determine whether the prosecutor’s closing remarks were prosecutorial

misconduct, we must determine whether the prosecutor's remarks denied the defendant a

fundamentally fair trial. Stringer v. State, 500 So. 2d 928, 939 (Miss. 1986); see also United

States v. Young, 470 U.S. 1, 16, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 13 (1985); Donnelly

v. DeChristoforo, 416 U.S. 637, 645, 94 S. Ct. 1868, 1872, 40 L. Ed. 2d 431, 438 (1974).

The prosecutor's remarks are viewed in light of the entire trial. See id., 416 U.S. at 645, 94

S. Ct. at 1872, 40 L. Ed. 2d at 438; United States v. Bright, 630 F.2d 804, 825 (5th Cir.

1980); United States v. Austin, 585 F.2d 1271, 1279 (5th Cir. 1978). We have found error

where the State introduced evidence of the character or reputation of the deceased or other

evidence outside the aggravating circumstances. See, e.g., Willie v. State, 585 So. 2d 660

(Miss. 1991); Stringer v. State, 500 So. 2d 928 (Miss. 1986); Wiley v. State, 484 So. 2d 339

(Miss. 1986); Coleman v. State, 378 So. 2d 640 (Miss. 1979). 

¶23. In the instant case, assuming that such comments constituted prosecutorial

misconduct, we find that the jury would not have concluded that the balance of aggravating

and mitigating circumstances did not warrant death. See Strickland, 466 U.S. at 694. There

was substantial evidence to support the sentence based on the aggravating factors; including

the facts that the murder was committed during the course of a kidnaping, and he was a

habitual offender. This issue is without merit.

Failure to Object to Prosecutorial Misconduct

¶24. Berry claims that, while the State used a theatrical performance and references to the

Bible in an effort to influence the jury, defense counsel failed to object or request that the

jury be admonished. We considered allegations of prosecutorial misconduct in Berry II and
9

found there to be no prosecutorial misconduct. See Berry II, 703 So. 2d at 280-81 (the use

of Biblical reference in closing arguments is acceptable and counsel is afforded broad

latitude). 

¶25. Accordingly, this issue is procedurally barred in accordance with Miss. Code Ann.

§ 99-39-21 (2000). 

Failure to Request a Mistrial or Move for a Continuance

¶26. During the original trial, both the defense and the State learned that Investigator Gore

had received an anonymous letter suggesting that Bounds may have been murdered in a case

of mistaken identity. Berry claims that counsel was ineffective in failing to request either

a continuance or mistrial after this discovery and that such failure waived review of the

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

(quoted with favor in Smith v. State, 500 So. 2d 973, 976 (Miss. 1986) ("the suppression by

the State of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.”). This rule encompasses impeachment evidence as well as

exculpatory material. Malone v. State, 486 So. 2d 367, 368 (Miss. 1986) (citing United

States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)). 

¶27. Following the acknowledgment of the letter, defense counsel questioned Gore

regarding, inter alia, its contents and whether the allegations were further pursued. Defense

counsel then requested the letter be admitted into evidence. This request was followed by

arguments regarding the letter’s exculpatory nature and relevancy. After a fifteen minute

break, when asked by the circuit judge, defense counsel declined to request a continuance.
10

Subsequently, the circuit court did not allow the letter to be entered into evidence. We

affirmed this ruling, citing precedent on discovery violations, including Box v. State, 437

So. 2d 19 (Miss. 1983). Berry I, 575 So. 2d at 10. We found that Berry had waived review

of the issue because trial counsel did not request a continuance. Id.

¶28. We have set out guidelines for trial judges to follow when dealing with discovery

violations. The guidelines include: 

1) Upon defense objection, the trial court should give the

defendant a reasonable opportunity to become familiar

with the undisclosed evidence by interviewing the

witness, inspecting the physical evidence, etc. 

2) If, after this opportunity for familiarization, the

defendant believes he may be prejudiced by lack of

opportunity to prepare to meet the evidence, he must

request a continuance. Failure to do so constitutes

waiver of the issue. 

3) If the defendant does request a continuance, the State

may choose to proceed with trial and forego using the

undisclosed evidence. If the State is not willing to

proceed without the evidence, the trial court must grant

the requested continuance. 

Ramos v. State, 710 So. 2d 380, 385 (Miss. 1998) (emphasis added). (See also Russell v.

State, 789 So. 2d 779, 785 (Miss. 2001)).

¶29. We find that this issue is without merit. First, counsel, upon discovery, sufficiently

familiarized himself with the letter and determined that the lack of opportunity to prepare did

not prejudice the defense. Second, Berry fails to demonstrate or allege how a lack of an

opportunity to prepare actually prejudiced his defense. Moreover, the decision not to request

a continuance or a mistrial falls within the ambit of trial strategy.
11

Failure to Develop and/or Present Effective Mitigation Evidence

¶30. Berry argues that counsel failed to call family members to testify and failed to call

social worker Hope Stone to testify, but instead, relied solely on professional witnesses.

This issue is without merit. 

¶31. Berry states that, by relying on professional witnesses, counsel overlooked an

abundance of evidence that family members could have provided. He claims that but for this

failure there was a reasonable probability that the result of the proceedings would have been

different. See Burns, 813 So. 2d at 673.

¶32. On resentencing, the defense presented three witnesses: Dr. Paul Blanton, Hope

Stone, and Lewis M. Tetlow. Their testimony is discussed in greater depth under Issue IX,

supra. 

¶33. Berry fails to cite support for his claim that reliance on professional witnesses may

serve as grounds for a claim of ineffective assistance of counsel. Instead, he presents

numerous affidavits from family and friends who discuss their opinions and knowledge of

his mental problems and personal troubles. Nevertheless, the argument fails to show how

counsel’s performance was deficient. We find that, by presenting three professional

witnesses and emphasizing Berry’s mental and personal problems, counsel sought to invoke

sympathy from the jury and prove that Berry lacked the capacity to appreciate his actions.

Therefore, there is no indication that counsel conducted himself outside the professional

norms. 

II. ALLEGED PROSECUTORIAL MISCONDUCT.
12

¶34. Berry raises many of the same claims for prosecutorial misconduct that were

addressed in Berry II. At that time, we held that “[h]aving reviewed each of his allegations,

we find no single or cumulative error warranting reversal of Berry's sentence. The

prosecutor's conduct was not such that it deprived Berry of a fundamentally fair trial.” Berry

II, 703 So. 2d at 282 (citations omitted). This claim is barred pursuant to Miss. Code Ann.

§ 99-39-21 (2000).

III. WHETHER THE STATE WITHHELD

EXCULPATORY EVIDENCE.

¶35. Berry claims that the State committed a Brady violation by withholding the results

of a DNA test, which he claims was exculpatory. Because the results were not exculpatory,

this issue is without merit.

¶36. During the original trial, the State presented as a witness Deborah K. Haller, a

forensic toxicologist with the state crime lab. On cross-examination, when asked whether

DNA testing had been conducted, Haller responded affirmatively that, at the time of the trial,

testing was still being conducted, effectively preventing her from testifying as to the results.

¶37. Berry claims that he failed to receive the results even after he requested production

in preparation for resentencing. The State responds that, because it was previously

determined during the original trial, guilt was not at issue during resentencing. With a copy

of the report accompanying its brief, the State emphasizes that the results conclusively

showed that the blood on Berry’s tennis shoe was indeed that of the victim. 
3

 On resentencing, the verdict provided, inter alia, that: 

Next, We, the jury, unanimously find that the aggravating circumstance(s) of:

1. The defendant, Earl Wesley Berry, committed this

offense while he was under a sentence of imprisonment.

2. The defendant, Earl Wesley Berry, was previously

convicted of a felony involving the use or threat of

violence to the person.

3. That the capital murder was committed while the

defendant was engaged in the commission of the crime

of kidnaping.

4. The capital murder was especially heinous, atrocious,

and cruel. 

are sufficient to impose the death penalty and there are insufficient mitigating

circumstances to outweigh the aggravating circumstances, and we

unanimously find that the defendant, Earl Wesley Berry, should suffer death.

13

¶38. Though it is unclear why the State failed to produce a copy of the report, such failure

does not warrant an evidentiary hearing. Berry fails to show how the State’s failure deprived

him a fundamentally fair trial during resentencing.

IV. WHETHER THE VERDICT AT RESENTENCING

WAS IN PROPER FORM.

 

¶39. Berry claims that Miss. Code Ann. § 99-19-103 requires a jury to find the aggravating

factors beyond a reasonable doubt, and that the verdict from resentencing was in violation

because it failed to state such explicitly.3

 Because this issue was not raised in the direct

appeal following resentencing, this issue is procedurally barred pursuant to Miss. Code Ann.

§ 99-39-21 (2000). 
14

¶40. Procedural bar notwithstanding, our decision in Williams v. State, 684 So. 2d 1179

(Miss. 1996), is directly on point. Section 99-19-103 provides, in part: 

The statutory instructions as determined by the trial judge to be

warranted by the evidence shall be given in the charge and in

writing to the jury for its deliberation. The jury, if its verdict be

a unanimous recommendation of death, shall designate in

writing, signed by the foreman of the jury, the statutory

aggravating circumstance or circumstances which it

unanimously found beyond a reasonable doubt. 

(emphasis added). We held that, while the jury is required to find the existence of each

aggravating circumstance beyond a reasonable doubt, “there is no authority for the

proposition that the jury must actually write the words “beyond a reasonable doubt” in its

verdict.” Williams, 684 So. 2d at 1208.

¶41. “This Court has held on numerous occasions that when a trial court instructs the jury,

it is presumed the jurors follow the instructions of the court.” Id. at 1209; see also

Crenshaw v. State, 520 So. 2d 131 (Miss. 1988); McFee v. State, 511 So. 2d 130 (Miss.

1987); Johnson v. State, 475 So. 2d 1136 (Miss. 1985). 

¶42. This issue is without merit. 

V. WHETHER IT WAS ERROR FOR THE

SENTENCING COURT NOT TO ALLOW BERRY

TO ATTACK THE VALIDITY OF HIS

CONFESSION.

¶43. The decision to admit Berry’s confession was affirmed in the direct appeals following

both the first trial and resentencing. See Berry I, 575 So. 2d at 8; Berry II, 703 So. 2d at

291. Seemingly, Berry takes issue with the resentencing court’s decision not to allow him
4

 Most of his argument is devoted to issues of its admissibility, which at this point is

certain. 

15

the opportunity to attack the confession or to argue to the jury how it was procured. Berry’s

argument is difficult to follow, but misses much of the issue.4

 

¶44. This issue seems to concern a defendant’s ability, during resentencing, to rebut

evidence which was previously found admissible during the guilt phase. Thus, Berry claims

that, by allowing the confession to be admitted unrefuted, the resentencing court violated his

Fifth, Sixth and Fourteenth Amendment rights. Because Berry's argument is based on such

constitutional provisions, the application of the procedural bar is avoided. 

¶45. Citing Berry I and Berry II, the State counters that this contention is barred under

both res judicata and Miss. Code Ann. § 99-39-21(2000). See Holland v. State, 705 So. 2d

307, 321-29 (Miss. 1997) (On appeal from a resentencing trial for capital murder, the issue

of guilt is res judicata and cannot be relitigated.) In Holland, a plurality of the Court

considered this issue extensively and held that it was not an error to prevent a defendant, on

resentencing, from presenting evidence or arguing residual doubt as to the validity of his

conviction. Id. at 327.

¶46. Berry does not argue how or why he sought to controvert the confession and how

such would have been relevant to his case in resentencing. Instead, he leaves it for us to

divine his purpose or whether it was in an effort to advance his case for mitigation.

Generally, “[d]efendants should be given broad latitude in introducing mitigating

circumstance evidence restricted only by the requirement that the evidence must be

relevant.” Davis v. State, 512 So. 2d 1291, 1293 (Miss. 1987). Likewise, in Skipper v.
16

South Carolina, 476 U.S. 1, 106 S. Ct. 1699; 90 L. Ed. 2d 1 (1986)), the Supreme Court

stated that a defendant must be allowed to rebut or defend against evidence introduced

against himself. Accord. in Holland, 705 So. 2d at 324 .

¶47. Another case on point is Atkins v. Commonwealth, 534 S.E.2d 312(Va. 2000), rev'd

on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002). In the direct appeal following resentencing, Atkins argued that the resentencing

court improperly prevented him from questioning the investigator about his confession. 534

S. E. 2d. at 314. Based on such, the court inhibited the jury's consideration of mitigating

evidence. Id. at 315. Atkins claimed that such information was relevant to issues of his

remorse and cooperation with law enforcement authorities, both of which are proper subjects

of mitigating evidence. Id. Rejecting his argument, the Virginia Supreme Court held that

the information that Atkins sought to elicit would have improperly raised questions of his

guilt and that a defendant is not allowed to argue or present evidence of "residual doubt" at

a new sentencing hearing. Id. at 315-16. 

¶48. This issue is without merit.

VI. WHETHER THE JURY’S ABILITY TO

CONSIDER MITIGATING EVIDENCE WAS

LIMITED BY JURY INSTRUCTIONS AND THE

STATE'S CLOSING ARGUMENT.

¶49. First, Berry claims that the sentencing instructions prevented the jury from

considering all the evidence presented regarding his mental problems. He recognizes that

we considered this issue in Berry II, but argues that its review was flawed because we placed

too much reliance on the catchall instruction and should reconsider the catchall in light of
17

Penry v. Johnson, 532 U.S. 787, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001) (Penry II); and

because we misapplied Blystone v. Pennsylvania 494 U.S. 299, 110 S. Ct. 1078, 108 L. Ed.

2d 255 (1990), which is distinguishable from the instant case. The State argues that the

matter is procedurally barred. 

¶50. In Berry II we considered whether the jury instructions limited consideration of his

mental state. We dismissed this issue citing the inclusion of the catchall provision and the

fact that defense counsel argued exhaustively to the jury that they should not impose the

death sentence due to the “extenuating circumstances relating to Berry’s mental and

emotional state.” Berry, 703 So. 2d at 287. 

¶51. Berry argues that the issue in Blystone was whether Pennsylvania’s capital statute

violated the Eighth Amendment. He argues that any reliance on the majority’s discussion

regarding instructions or catchall provisions is misplaced because it was not directly at issue.

For this point, he cites the Justice Brennan’s dissent in Blystone. 494 U.S. at 316 n.5. Such

claims regarding our analysis from Berry II should have been raised on motion for rehearing

and is therefore procedurally barred. The analysis now shifts to the issue regarding the

closing arguments by the State and the Supreme Court’s holding in Penry II.

¶52. Second, Berry argues the State misled the jury because it made the jury believe that,

because he was competent to stand trial, all other evidence should not be considered; and

that there was a heightened standard for mitigating evidence. The State's closing may have

confused jurors in regards to evidence of mental and emotional problems. The State argued,

inter alia, that: “. . . the bottom line, [Berry is] competent to stand trial, competent to know

right from wrong, in his mind competent to be executed. . . ." In doing so, the State argued
18

in unison issues of insanity, competency, and mental retardation. The State argued that,

because he knew the difference between right and wrong and because he was competent to

stand trial, Berry was competent under the law to be executed. As noted later in the

discussion of mental retardation, supra, competency, mental retardation, and insanity are

distinct principles that are not used interchangeably. Berry claims that the decisions from

Penry I and Penry II support his position. However, these two cases do not support Berry’s

claim regarding the State's closing. 

¶53. In Penry I, the Supreme Court considered whether the jury instructions during capital

sentencing allowed the jury the ability to properly consider the mitigating evidence of the

defendant’s mental retardation and childhood abuse. Penry v. Lynaugh, 492 U.S. 302, 109

S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (Penry I). The Court ruled that in a capital murder

trial the jury should be able to “consider and give effect to [a defendant’s mitigating]

evidence in imposing sentence.” Id. 

¶54. In Penry II, the Supreme Court considered whether on resentencing the state court

complied with its holding from Penry I. Finding that it did not, the Supreme Court stated

that instructions that “mere[ly] mention” or instruct the jury “to consider” mitigating

circumstances do not satisfy the Eighth amendment. Penry II, 532 U.S. at 797. The Court

found the sentencing instructions to be internally contradicting, id. at 798, and suggested

that the contradiction may be resolved by considering that instructions in the light of all that

had taken place at the trial (i.e., comments by the court or either side) or with the presence

of a more clearly drafted catchall instruction on mitigating evidence. Id. at 803-04.

However, without such, the Court held that a “reasonable juror could well believe that there
19

was no vehicle for expressing their view [that the defendant] did not deserve to be sentenced

to death based upon his mitigating evidence.” Id. at 804.

¶55. Considering how the instructions may have been clarified, the Supreme Court stated,

"Moreover, even if we thought that the arguments of defense counsel could be an adequate

substitute for statements of the law by the court, . . . the prosecutor effectively neutralized

defense counsel's argument, . . . by stressing the jury's duty "[t]o follow your oath, the

evidence and the law." Id. at 802 (citation omitted). Berry maintains that similarly, the

State's closing argument effectively neutralized defense counsel’s closing argument. The

instant case is easily distinguishable from Penry II, which is therefore not applicable,

because there is no alleged internal contradiction with the instructions presently at issue. 

¶56. Post-conviction review based on the jury instructions and the State's closing argument

is denied. Though we are concerned with the State's interchangeable use of the principles

of mental retardation, competency and insanity, this alone does not warrant review. 

VII. WHETHER THE AGGRAVATING FACTORS

ELEVATING A CHARGE TO A CAPITAL

OFFENSE MUST BE INCLUDED IN THE

INDICTMENT.

¶57. This is one of several cases before the Court raising this same issue. Two articles

have been helpful: Janice L. Kopec, Ring v. Arizona 122 S. Ct. 2428 (2002) Allen v. United

States 122 S. Ct. 2653 (2002), 15 Cap. Def. J. 143 (2002), and Simon Cantarero, Who Makes

the Call on Capital Punishment? How Ring v. Arizona Clarifies the Apprendi Rule and the

Implications on Capital Sentencing, 17 BYU J. Pub. L. 323 (2003). 

¶58. The indictment issued against Berry alleged in part: 
5

 Because his claim is factually vague as to what factors where included in the jury

instruction but were left out of the indictment, we note that the instruction’s four aggravating

factors include: 1) Berry committed the crime while under a sentence of imprisonment; 2)

he was previously convicted of a felony involving the use or threat of violence to the person;

3) the capital offense was committed while the defendant was engaged in the commission

of the crime of kidnaping; and 4) the capital offense was especially heinous, atrocious or

cruel. 

20

[That Earl Berry]... willfully, unlawfully, feloniously and

without the authority of law kill and murder Mary Bounds, a

human being, while engaged in the commission of the crime of

kidnaping of Mary Bounds by forcibly seizing and confining

Mary Bounds, without lawful authority, with the intent to cause

her to be secretly confined or imprisoned against her will, in

violation of Section 97-3-19(2)(e) of the Mississippi Code of

1972, Annotated, as amended... indicted as an habitual criminal

as under Section 99-19-81...

He claims that there can be no dispute that the indictment lacks allegations of aggravating

circumstances.5

 But the indictment did present the aggravating circumstances on which the

State intended to rely on and satisfied the additional state notice requirement in capital

matters. See Miss. Code Ann. § 99-17-20 (2000). Despite this, we will analyze the issue

assuming Berry’s interpretation of the indictment. 

¶59. The decisions in Ring and Apprendi did not address state indictments, and Jones was

based on a federal criminal statute and the Fifth Amendment, which is not applicable to the

states. Berry argues that his indictment was unconstitutional because it failed to include and

specify the aggravating factors used to sentence him to death. For support, he relies on

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

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348. 147 L. Ed. 2d 435 (2000); and Ring v.
21

Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 ( 2002). Because Ring is an

intervening decision, this issue avoids the procedural bar. 

¶60. In Jones, the Supreme Court was asked to decide whether the federal carjacking

statute provided for three distinct offenses or a single crime with a choice of three maximum

penalties, two of which were dependent on sentencing factors exempt from the requirements

of charge and jury verdict. Jones, 526 U.S. at 229. Finding that it provided for three distinct

offenses with differing punishments based on the degree of violence employed or physical

harm inflicted, the Court held that the aggravating factors necessary to trigger the escalating

penalties fell within the province of the jury. Id. at 251-52. Succinctly, the Court stated:

[U]nder the Due Process Clause of the Fifth Amendment and

the notice and jury trial guarantees of the Sixth Amendment,

any fact (other than prior conviction) that increases the

maximum penalty for a crime must be charged in an indictment,

submitted to a jury, and proven beyond a reasonable doubt.

Id., at 243 n.6 (emphasis added).

¶61. In Apprendi, the defendant was arrested after he fired several shots into the New

Jersey home of an African-American family. Apprendi, 530 U.S. at 469-70. Subsequently,

he was indicted on numerous state charges, including second-degree possession of a firearm.

Id. He then was convicted of, inter alia, second-degree possession of a firearm, an offense

carrying a maximum penalty of ten years. On the prosecutor’s motion, the sentencing judge

found by a preponderance of the evidence that the crime had been motivated by racial

animus. As such, it triggered the state “hate crime enhancement” resulting in the judge

sentencing the defendant to twelve years, two years over the maximum but for the

enhancement. Id. 
6

 As recently as 1990, the Supreme Court reviewed Arizona’s sentencing scheme in

Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), and held that

the sentencing scheme was compatible with the Sixth Amendment because additional facts

found by the judge qualified as sentencing considerations, not as elements of the offense of

capital murder. Walton, 497 U.S. at 649.

However, the Court’s reasoning in Apprendi was irreconcilable with the holding from

Walton and because the Court did not expressly overrule Walton in its decision from

Apprendi, the Court granted certiorari to address the conflict. Ring, 536 U.S. at 588-89. 

22

¶62. On certiorari, Apprendi argued, inter alia, that due process required that the finding

of bias upon which his hate crime sentence was based must be proved to a jury beyond a

reasonable doubt. Relying in part on Jones, the Supreme Court agreed, stating: "Other than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt." Apprendi, 530 U.S. at 490. 

¶63. Relevant to the instant appeal, the Apprendi Court noted, "Apprendi has not here

asserted a constitutional claim based on the omission of any reference to sentence

enhancement or racial bias in the indictment. . . . We thus do not address the indictment

question separately today." Id. at 477 n.3.

¶64. Finally, in Ring v. Arizona, the Supreme Court considered whether the Arizona

capital sentencing regime was still constitutional following its holding from Apprendi.

Arizona law provided that after the defendant was convicted by a jury, the trial judge was

required to conduct a hearing and make the final determination by a preponderance of

evidence as to the presence of aggravating factors required for the imposition of the death

penalty. Ring, 536 U.S. at 587.6

 Finding it unconstitutional, the Court stated:
23

[W]e overrule Walton to the extent that it allows a sentencing

judge, sitting without a jury, to find an aggravating

circumstance necessary for imposition of the death penalty. See

497 U.S. at 647-649, 110 S. Ct. at 3047. Because Arizona's

enumerated aggravating factors operate as "the functional

equivalent of an element of a greater offense," Apprendi, 530

U.S. at 494 n.19, 120 S. Ct. 2348, the Sixth Amendment

requires that they be found by a jury.

* * *

"The guarantees of jury trial in the Federal and State

Constitutions reflect a profound judgment about the way in

which law should be enforced and justice administered. . . . If

the defendant preferred the common-sense judgment of a jury

to the more tutored but perhaps less sympathetic reaction of the

single judge, he was to have it." 

The right to trial by jury guaranteed by the Sixth Amendment

would be senselessly diminished if it encompassed the

factfinding necessary to increase a defendant's sentence by two

years, but not the factfinding necessary to put him to death. We

hold that the Sixth Amendment applies to both.

Ring, 536 U.S. at 609 (citation omitted).

¶65. The practical function of the Ring decision was only to clarify the fact that in the

“functional equivalent” doctrine, there was no distinction in capital matters and that under

the Sixth Amendment any fact that is such must be found by a jury.

¶66. In the instant appeal, Berry argues that, because the Ring relied in part on the

reasoning from Jones, which was subsequently relied on in Apprendi, states are now

obligated to comply with its holding with the indictment requirement. We disagree for two

reasons, which the Ring Court conveniently noted in footnote number four of the majority

opinion. In it, the Supreme Court stated: 
24

Ring's claim is tightly delineated: He contends only that the

Sixth Amendment required jury findings on the aggravating

circumstances asserted against him. . . . Finally, Ring does not

contend that his indictment was constitutionally defective. See

Apprendi, 530 U.S., at 477, n. 3, 120 S. Ct. 2348 (Fourteenth

Amendment "has not . . . been construed to include the Fifth

Amendment right to 'presentment or indictment of a Grand

Jury'"). 

Ring, 536 U.S. at 597 n.4 (emphasis added).

¶67. First, like Apprendi, the Ring Court specifically noted that its opinion did not address

the constitutionality of the indictment; and therefore, it never spoke to whether states are

required provide such charges in their indictments. 

¶68. Second, Berry’s argument requires reading together the decisions from Jones,

Apprendi, and Ring. However, Apprendi and Ring were based on the guarantees contained

in the Sixth Amendment. Jones addressed a federal statute and was based on, in addition

to the Sixth Amendment’s notice and jury trial guarantees, the due process clause of the Fifth

Amendment, which does not apply to the states. See Bartkus v. Illinois, 359 U.S. 121, 79

S. Ct. 676, 3 L. Ed. 2d 684 (1959); Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28

L. Ed. 232 (1884). Thus, Berry’s argument is without merit. 

¶69. The State cites the same reasons why we should reject Berry’s argument. In addition,

the State argues that even if the Apprendi and Ring cases were applicable, they could not be

applied retroactively. Because Berry’s argument is without merit, analysis of potential

retroactivity is omitted. 

VIII. WHETHER MISSISSIPPI'S CAPITAL

SENTENCING SCHEME IS DISTINGUISHABLE

FROM ARIZONA'S CAPITAL SENTENCING

SCHEME.
25

¶70. Berry argues that, although Mississippi's capital sentencing regime is not identical to

the Arizona regime, Mississippi’s scheme is sufficiently similar to render it unconstitutional

under Ring. Mississippi’s capital scheme is distinct from Arizona’s in the single, most

relevant respect under the Ring holding: that it is the jury which determines the presence

of aggravating circumstances necessary for the imposition of the death sentence. See Miss.

Code Ann. § 99-19-101 (2000). 

¶71. Likewise, the Ring court considered Mississippi’s scheme to be part of a majority of

states who have responded to its Eighth Amendment decisions and require that juries make

the final determination as to the presences of aggravating circumstances. Ring, 536 U.S. at

608 n.6.

¶72. This issue is without merit. 

IX. WHETHER AN INDICTMENT FOR CAPITAL

MURDER MUST ALLEGE ALL OF THE

STATUTORY ELEMENTS OF THE CRIME.

¶73. Berry's argument is based on the holdings of two United States District Courts:

"Although the Ring decision explicitly did not discuss whether a defendant was entitled to

grand jury indictment on the facts that, if proven, would justify a sentence of death, . . . the

clear implication of the decision, resting as squarely as it does on Jones, is that in a federal

capital case the Fifth Amendment right to a grand jury indictment will apply." United

States v. Fell, 217 F. Supp. 2d 469, 483 (D. Vt. 2002). Fell is not a federal capital case, and

there is nothing to show that this Fifth Amendment right is applicable to a state capital case.

In any event, the Second Circuit has vacated the district court judgment in Fell. United

States v. Fell, 360 F.3d 135 (2d Cir. 2004). Berry also cites United States v. Lentz, 225 F.
26

Supp. 2d 672 (E.D. Va. 2002), which makes the same finding, but once again deals with the

Federal Death Penalty Act, or FDPA.

¶74. Berry also relies on the United States Supreme Court decision of Allen v. United

States, 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002). In a memorandum

decision, the Supreme Court stated the following: "The judgment [in Allen] is vacated and

the case is remanded to the United States Court of Appeals for the Eighth Circuit for further

consideration in light of Ring v. Arizona." This decision is confusing to this writer for two

reasons: (1) Allen is a federal capital case while Ring is a state capital case and (2) the

holding in Ring was that only a jury could find an aggravating circumstance necessary for

the imposition of the death penalty. This issue was not considered in Allen because under

the Federal Death Penalty Act, a jury must find the aggravating factors. See United States

v. Allen, 247 F.3d 741, 758 (8th Cir. 2001) ("The framework of the FDPA passes

constitutional muster because it does not allow imposition of the death penalty unless the

jury first finds at least one statutory aggravating circumstance.")

¶75. One issue raised in Allen was the issue Berry raises here, that of his indictment being

defective because it did not contain the aggravating factors. The Eighth Circuit in Allen

found that Allen's indictment was not defective even though it did not contain the

aggravating factors. If this is the basis on which Allen is being reversed, it seems odd to cite

Ring to do it. The question of what an indictment must contain in a state capital case was

not before the Ring Court. In Apprendi, the Supreme Court stated that the Fifth Amendment

right to indictment had never been applied to the states through the Fourteenth Amendment.
7

However, “[i]n Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984),

the Supreme Court of the United States held that such a review is not constitutionally

mandated, being exclusively a question of state law.” Gray v. State, 472 So. 2d 409, 420

(Miss. 1985).

27

The Supreme Court has not found that state capital defendants have a constitutional right to

have all aggravating circumstances listed in their indictments.

¶76. The State argues that the decision in Ring does not apply retroactively, citing Tyler v.

Cain, 533 U.S. 656, 663, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001), where the Court stated:

"We thus conclude that a new rule is not 'made retroactive to cases on collateral review'

unless the Supreme Court holds it to be retroactive." We agree. The Supreme Court has

recently held that Ring announces a procedural rule and does not apply retroactively to death

penalty cases already final on direct review. Schriro v. Summerlin, 542 U.S. ___, 2004 WL

1402732 (June 24, 2004).

X. PROPORTIONALITY.

¶77. Berry claims that he is entitled to a proportionality review as provided by Miss. Code

Ann. § 99-19-105 (2000) and that such is required under the Eighth Amendment of the

Constitution.7

 Because this issue was considered on direct appeal following resentencing,

this issue is barred pursuant to Miss. Code Ann. § 99-39-21 (2000). See Berry II, 703 So.2d

at 293-94. 

XI. MENTAL RETARDATION.

¶78. Berry raises two issues regarding mental retardation: 1) who determines mental

retardation under Atkins; 2) whether he is mentally retarded under Atkins. 

Who determines whether a defendant is mentally retarded.
28

¶79. Berry devotes a significant part of his argument discussing what role judges and juries

should play in determining whether a defendant is mentally retarded. We recently addressed

this issue in Russell v. State, 849 So. 2d 95, 145-49 (Miss. 2003), but the briefs in this matter

were filed prior to Russell.

¶80. In Russell, the petitioner argued that after meeting his burden of production, the

determination of whether he is mentally retarded must be submitted to the jury and proven

by the State beyond a reasonable doubt. Id. at 146. Rejecting this position, we stated, "We

find that not being mentally retarded is not an aggravating factor necessary for imposition

of the death penalty, and [therefor] Ring has no application to an Atkins determination.” Id.

at 148. Our reasoning is established on the fact that Ring/Apprendi and Atkins discuss

issues under the Sixth and Eighth Amendments, respectively. See also Chase v. State, 873

So.2d 1013 (Miss. 2004).

¶81. We reject Berry’s argument and cite the recent decision in Russell.

Whether Berry is Entitled to an Atkins Hearing.
8

At that time, Berry claimed the death sentence was disproportionate considering he

was “a paranoid schizophrenic functioning with brain damage and an impaired intellectual

capacity” the death sentence was disproportionate. Id. at 293. Relying on Edwards v. State,

441 So. 2d 84, 93 (1983), Berry argued that his sentence ought to be vacated. Id. We noted

that a “diagnosis of paranoid schizophrenia does not necessarily prohibit the imposition of

the death penalty.” Id. at 293. Rejecting the claim that his circumstances closely paralleled

those from Edwards, we distinguished his claim for several reasons, including: 1) there was

expert testimony that he was competent to be executed; 2) the evidence was neither

overwhelming nor uncontradicted; 3) he had never been diagnosed, treated, or

institutionalized for his afflictions prior to killing Mary Bounds. Id.

29

¶82. At the outset, we note that we previously considered Berry’s mental capacity in Berry

II. See Berry II, 703 So. 2d at 293-94.8

 However, because he was sentenced pre-Atkins,

this issue was not scrutinized under the standards now imposed under Atkins. 

¶83. In support of his claim that he is entitled to an Adkins hearing, Berry relies on

affidavits from family members, a report from a social worker, testimony of psychologist,

and in addition to other proof. Because the issue of his mental capacity and competency

were prevalent throughout his trials and appeals, he also cites the record from the previous

appeals. The State relies heavily on the testimony of Dr. Charlton Stanley and Dr. Paul

Blanton. 

¶84. Testifying during the sentencing phase of the original trial, Dr. Charlton Stanley, a

forensic psychologist, testified that Berry had an IQ of 83, which classified him in the dull

normal range of intellectual function. Though Dr. Stanley found that he suffered from

organic brain damage, he testified that Berry was not mentally retarded. 

¶85. Next, there is the evidence and testimony that was presented during resentencing. At

this time, Berry called Dr. Paul Blanton, a clinical psychologist, who testified that Berry: 1)
9

 The State discounts the results by arguing that report is not certified.

10 Apparently, Berry has attempted suicide on several occasions.

30

had full scale IQ of 76 (borderline intellectual functioning), and how such an IQ would affect

him; 2) suffered from significant frontal lobe impairment; and 3) was not mentally retarded.

¶86. Second to testify was social worker Hope Stone, who testified regarding a report in

which he outlined significant personal and family background information on Berry. The

report showed that Berry's father suffered from mental illness and was treated at Whitfield;

Berry had demonstrated poor educational performance; Berry had sustained several head

traumas; Berry was treated at Whitfield in 1981; and that, from August 1987 thru November

1987, he was treated for paranoid schizophrenia at Pines Aftercare Program in Starkville. 

¶87. Testifying last was Dr. Lewis Tetlow, a clinical psychologist, who diagnosed Berry

as suffering from paranoid schizophrenia. 

¶88. Aside from the testimony, Berry cites several affidavits from family and friends

swearing, inter alia, that: 1) they had long known of that he was “slow” and lacked the

appropriate mental capabilities for someone his age; 2) attended special educational classes;

3) as a child he was hospitalized for cottonseed oil poisoning. 

¶89. To show that his intellectual deficiencies were documented prior to age 18, a

standardized tests scores from January 1972 (13 years old) were provided. The report

indicates that his I.Q. was 72.9

¶90. Last, there are the notes and records from staff at the Mississippi Department of

Corrections hospital at Parchman following suicide attempts in 1981 and 1985.10 During
31

October of 1981, Berry was hospitalized after attempting suicide (swallowed razor blades).

He was subsequently placed in the psychiatric wing. Staff notes during this period indicate

that they considered him mentally retarded. 

¶91. Again in April of 1985, Berry was admitted to the hospital after attempting suicide

and, again the staff’s notes indicate that they considered him to be mentally retarded. 

¶92. We recently addressed the standard for determining whether a defendant is mentally

retarded as to render him or her ineligible for capital punishment. See Chase v. State, 873

So. 2d at 1029. If, on post-conviction review, a defendant produces evidence that he or she

has scored 75 or below on an IQ test, we are to grant an evidentiary hearing for a mental

retardation determination.

¶93. Chase requires that, in order to merit an Atkins hearing, the defendant or petitioner

must produce the affidavit of a qualified expert stating that the defendant or petitioner is

mentally retarded. Here, other than Dr. Blanton's testimony that Berry was probably not

mentally retarded, there is no evidence in the record which would compel us to remand for

an evidentiary hearing on the issue of mental retardation. See Scott v. State, ___ So. 2d ___

(Miss. 2004). This claim is without merit.

XII. CUMULATIVE ERROR

¶94. Berry argues that post-conviction review be granted based on cumulative errors. 

Stringer v. State, 500 So. 2d 928, 946 (Miss. 1986) (death sentence vacated in view of

numerous "near-errors" which violated defendant's right to a fair trial).

¶95. After reviewing the record and considering the cumulative effect of any error or near

error, we find that this issue is without merit. 
32

CONCLUSION

¶96. For these reasons, we deny Berry leave to seek post-conviction relief.

¶97. APPLICATION FOR LEAVE TO FILE PETITION FOR POSTCONVICTION RELIEF DENIED. 

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND

RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ,

J., NOT PARTICIPATING.