Willie Jerome Manning v. State of Mississippi

• Court: Mississippi Supreme Court
• Decided: November 8, 1994
• Docket: 2001-DR-00230-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2001-DR-00230-SCT

WILLIE JEROME MANNING a/k/a “FLY”

v.

STATE OF MISSISSIPPI

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 11/08/1994 TRIAL JUDGE: HON. LEE J. HOWARD COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: DAVID VOISIN ROBERT M. RYAN ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR. DISTRICT ATTORNEY: FORREST ALLGOOD NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - POST CONVICTION DISPOSITION: PETITION FOR POST-CONVICTION RELIEF, DENIED - 08/04/2005 MOTION FOR REHEARING FILED: 06/18/2004 MANDATE ISSUED:

EN BANC.

CARLSON, JUSTICE, FOR THE COURT:

¶1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion

is substituted therefor.

¶2. Willie Jerome Manning was convicted of capital murder of Jon Steckler and Tiffany

Miller in Oktibbeha County in 1994. He was sentenced to death one day later, on November 8, 1994. Manning’s conviction and sentence were affirmed by this Court in Manning v. State,

726 So.2d 1152 (Miss. 1998). The motion for rehearing was denied on October 8, 1998. The

United States Supreme Court denied Manning’s petition for writ of certiorari on April 5, 1999.

Manning v. Mississippi, 526 U.S. 1056, 119 S.Ct. 1368, 143 L.Ed.2d 528 (1999).

¶3. After denial of the petition for writ of certiorari, in accordance with Jackson v. State,

732 So.2d 187 (Miss. 1999), we remanded the matter to the Circuit Court of Oktibbeha

County for appointment of post-conviction counsel. The circuit court then appointed the

Office of Capital Post-Conviction Counsel (OCPCC) to represent Manning in post-conviction

relief proceedings.

¶4. We find no merit in Manning’s petition to proceed in the trial court on post-conviction

relief. Therefore, the petition for post-conviction relief is denied.

FACTUAL BACKGROUND

¶5. On December 11, 1992, Tiffany Miller and Jon Steckler, both Mississippi State

University students, were shot and killed in Oktibbeha County, Mississippi. They were last seen

leaving Jon’s fraternity house around 1:00 a.m. on December 11, 1992. Tiffany drove a Toyota

MR2 sports car and lived off campus at the University Hills Trailer Park.

¶6. A motorist discovered Jon Steckler lying on the right side of Pat Station Road at

approximately 2:15 a.m. When Deputy Sheriff Robert Elmore arrived at the scene at 2:33 a.m.,

Jon still had a pulse. While waiting for an ambulance, Deputy Elmore noticed drag marks

through the gravel road into the woods, and there he discovered Tiffany’s body. She had been

shot twice in the face at close range. Jon was shot once in the back of the head and had

extensive abrasions occurring prior to his death, which were consistent with being run over by

2 a car at low speed. Tiffany’s car was found the next morning parked in front of apartments on

Old Mayhew Road, approximately one hundred yards from her residence at the University Hills

Trailer Park.

¶7. In the early hours of the morning of the murder, John Wise, Jon Steckler’s fraternity

brother, went to his car which was parked outside the fraternity house. At that time, he did not

notice anything suspicious and locked his car. Later in the morning, Wise found that his car had

been broken into and several items stolen. Several of the stolen items were later linked to

Willie Jerome Manning through testimony of several of the State’s witnesses. One of the

items reported stolen from Wise’s car was a gold-colored token. Subsequently, a gold token,

very similar to the one reported stolen from Wise’s car, was recovered at the murder scene.

¶8. The prosecution initially indicted Manning for murder in the course of a kidnaping, but

later amended the indictment, substituting a robbery charge. The State introduced evidence

purporting to link the stolen items, including a leather jacket, a CD player, the gold token, and

a silver engraved beverage holder to Manning. The State also introduced testimony that

Manning attempted to sell a watch and ring matching the description of the watch and ring that

Jon Steckler was wearing the night he was killed. Much of the testimony regarding the stolen

items came from Manning’s former girlfriend, Paula Hathorn. More testimony came from two

jailhouse informants who testified that, while incarcerated, Manning admitted killing the

students and selling the gun he used.

¶9. Manning argues that the lack of physical evidence linking him to the crime, together

with questionable testimony from witnesses was inadequate to support a capital murder

conviction. There were no matching fingerprints or footprints at the scene linked to Manning.

3 Manning asserts that the testimony of Hathorn was not credible since she was induced by a

$25,000 reward for solving the crime and the State’s lenient treatment on a number of charges

pending against her. Manning seeks to discredit the testimony of the jailhouse informants,

noting that one of the informants initially gave a false statement to the police implicating two

other suspects.

DISCUSSION

¶10. This Court has long recognized that post-conviction relief actions have become part of

the death penalty appeal process. Jackson v. Stat e, 732 So.2d 187, 190 (Miss. 1999). Our

standard of review of capital convictions and sentences is one of “heightened scrutiny” under

which “all doubts are to be resolved in favor of the accused.” Flowers v. State, 842 So.2d 531,

539 (Miss. 2003) (citing Balfour v. State, 598 So.2d 731, 739 (Miss. 1992)); Williamson v.

State, 512 So.2d 868, 872 (Miss. 1987) (citing Irving v. State, 361 So.2d 1360, 1363 (Miss.

1978)).

¶11. In his Petition for Post-Conviction Relief, Manning raises numerous claims. The

majority of those claims relate to the State’s failure to disclose evidence and claims of

ineffective assistance of counsel. While the Court has considered all of Manning’s claims

separately, the claims have been combined for clarity as: I) failure to disclose exculpatory

evidence; II) polygraph examination; III) ineffective assistance of counsel; and, IV) cumulative

errors.

I. Exculpatory Evidence

¶12. Manning argues that the State presented testimony from Frank Parker that included

numerous lies and misrepresentations; that the State knew or should have known that Parker

4 was lying; and, that despite exercising due diligence defense counsel was not able to uncover

impeachment material, the truth about Parker’s pending charges in Texas, or other evidence of

his motivation for testifying. Manning asserts that Parker lied about pending criminal charges

against him and lied as to the severity of those charges, and that he denied the fact that his

testimony was motivated by the possibility of reward money. Further, Manning asserts that the

fact was never disclosed that authorities in Mississippi had actually shown Parker crime scene

photos and promised to help him with the criminal charges pending in Texas. Manning argues

that Parker’s testimony was crucial to the prosecution and was the only link between Manning

and the gun used to kill the students. Manning argues that the State knowingly presented false

testimony, and that due to the crucial nature of this testimony, the State cannot show beyond

a reasonable doubt that the use of the false testimony was harmless.

¶13. Manning points out that Fifth Circuit case law and precedent from the U.S. Supreme

Court mandates that a “a new trial is required if the false testimony could have. . . in any

reasonable likelihood affected the judgment of the jury.” Barrientes v. Johnson, 221 F.3d 741,

756 (5th Cir. 2000) (citing Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed. 2d

1217 (1959) and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104

(1972)). Manning also cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963), holding that the suppression of favorable evidence is a violation of the defendant’s

due process rights. Favorable evidence includes that which is either directly exculpatory or

items which can be used for impeachment purposes. Giglio, 405 U.S. at 153-155, 92 S.Ct.

763.

5 ¶14. The State asserts that this allegation was addressed on direct appeal and is now

procedurally barred. The State argues that the existence and nature of the charges pending

against Parker were brought out on direct examination and, in more detail, on

cross-examination. The State also points out the affidavits that Manning now uses to

purportedly show that Parker had a deal with the State for his testimony, reveal instead that

Mississippi authorities never made an explicit promise to help Parker with the criminal

charges in Texas until after he had testified. The State also asserts that Manning fails to show

actual prejudice sufficient to overcome this waiver. Wiley v. State, 750 So.2d 1193, 1210

(Miss. 1999). Furthermore, the State argues that Manning fails to establish that this material

to which he points is “exculpatory” material under this Court’s analysis of Brady, citing Todd

v. State, 806 So.2d 1086, 1091-92 (Miss. 2001).

¶15. In determining whether a Brady violation has occurred, thus mandating a new trial, this

Court applies the four-prong test articulated in King v. State, 656 So.2d 1168, 1174

(Miss.1995) (adopting four-prong test from United States v. Spagnoulo, 960 F.2d 990, 994

(11th Cir. 1992)). The defendant must prove: (a) that the State possessed evidence favorable

to the defendant (including impeachment evidence); (b) that the defendant does not possess the

evidence nor could he obtain it himself with any reasonable diligence; (c) that the prosecution

suppressed the favorable evidence; and (d) that had the evidence been disclosed to the defense,

a reasonable probability exists that the outcome of the proceedings would have been different.

Todd v. State, 806 So.2d at 1092.

¶16. Manning argues that U.S. Supreme Court precedent instructs the State that its knowing

use of or its failure to correct false testimony, or its presentation of evidence which creates

6 a materially false impression of the evidence, violates a defendant’s right to due process.

Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S.

264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2

L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

Manning further asserts that the prosecutor knew or should have known that Hathorn was not

truthful, but he pressed ahead to rehabilitate her credibility and tarnish the jury’s view of the

credibility and competence of the defense.

¶17. Manning also argues that the State had a duty to disclose any agreements or material

assurance that it had made to Hathorn in exchange for her testimony and that the State failed

to fully disclose the deal that had been made with Hathorn as to her pending charges. Manning

contends that the failure to disclose this information impacted his ability to challenge

Hathorn’s credibility. The U.S. Supreme Court has held that when the reliability of a given

witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting

credibility especially evidence of any understanding or agreement as to a future prosecution,

violates due process. Giglio v. United States, 405 U.S. at 154-55, 92 S.Ct. 763. Manning also

argues a violation of Brady for the State’s failure to disclose information associated with the

Hathorn’s testimony. Manning asserts that the State failed to disclose the true nature of Paula

Hathorn’s position as a state agent and withheld tape recordings between Hathorn and Manning

that were made at the insistence of and by law enforcement officers. Hathorn was provided a

list of topics to cover and was instructed to telephone Manning. Manning asserts that the

transcripts of those telephone conversations show that Hathorn failed to elicit any

incriminating statements from Manning and indicate that several of the statements made by

7 Hathorn directly contradict her subsequent trial testimony. Manning also argues that it was

never disclosed to the defense that the State threatened to charge Hathorn as an accessory after

the fact to murder. All of these things, Manning argues, could have been used for impeachment

purposes and to illuminate Hathorn’s motivation for testifying.

¶18. The State argues that Manning fails to back up this claim that there are cassette tapes

and transcripts related to Hathorn’s testimony. It argues that there are no exhibits attached to

affidavits that these items were found. It also contradicts Manning’s claim that the defense was

not able to impeach Hathorn as to her contradictory statements where the trial transcripts

indicate that this very information was brought out at trial and on direct appeal. Furthermore,

the State notes that Hathorn’s relationship with the sheriff’s department was also brought out

at trial and on direct appeal.

¶19. Pursuant to an Order issued by this Court on December 2, 2004, Circuit Judge Lee J.

Howard, the same judge who presided over Manning’s initial trial, conducted an evidentiary

hearing on January 12, 2005, to determine if the information contained in the cassette tapes

and transcripts were exculpatory as to Manning, such that a new trial would be warranted. At

the conclusion of the evidentiary hearing, the trial court took this matter under advisement and

allowed counsel for the State and Manning to submit memoranda of law. On April 22, 2005,

the trial court entered its “Evidentiary Hearing Order” wherein it addressed three questions:

“(1) Did the State `suppress’ evidence? (2) Is the evidence actually Brady material? (3) Is there

a reasonable probability that a different verdict would have resulted if the evidence had been

8 used?”1 The trial court held that no Brady violation occurred and that a new trial was not

warranted. The trial court first determined that no “factual basis exist[ed] to prove that the State

suppressed the existence of tape-recorded telephone communications between [Manning] and

his girlfriend, Paula Hathorn.” Testimony reflected that the alleged suppressed evidence was

included with all other physical evidence made available to Manning’s attorneys. Dolph Bryan,

Sheriff of Oktibbeha County, testified that there was a voluminous amount of evidence

collected by his department. Defense counsel could only argue that he believed the tapes were

not made available to counsel because had they been made available, he would have used them

at trial to impeach Paula Hathorn.

¶20. Having listened to the cassette tapes and read the transcripts of the recorded

conversations, the trial court determined that very little impeachment value could be attributed

to the conversations found on the cassette tapes. The trial court found that the conversations

were not “relevant, inculpatory, exculpatory, or useful for impeachment” because Hathorn was

merely repeating questions to Manning that had been scripted by the Sheriff’s Department.

Concerning the third question, the trial court determined, after having heard testimony from

both parties and having listened to the recorded conversations on the cassette tapes, that

“nothing contained therein would be of sufficient impeachment value so as to give rise to a

1 This evidentiary hearing order, along with the supplemental record from the evidentiary hearing, has been submitted by the trial court to this Court, consistent with our prior order. Upon this Court’s receipt of the supplemental record, Manning, through counsel, filed a motion to reset briefing schedule, which was denied by this Court. Likewise, Manning’s counsel filed additional pleadings entitled “Motion to Amend Petition to Conform to Evidence Introduced by the State at Evidentiary Hearing (with an attached proposed `Second Amendment to the Petition for Post-Conviction Relief’),” and “Petitioner’s Objections to the Circuit Court’s `Evidentiary Hearing Order.’” For the reasons hereinafter discussed, the motion to amend, and the objections, are denied, as reflected by this opinion and by separate orders this day entered.

9 reasonable probability that a different verdict would have resulted if this evidence had been

used during the original trial of [Manning].”

¶21. Manning’s protestations notwithstanding, we cannot find fault with the findings of the

trial court. Defense counsel was given every opportunity to listen to the tapes and view the

transcripts, as all evidence was made available to defense counsel, and no evidence was

intentionally withheld by the State.2 Additionally, when applying the four-part test to determine

if Brady violations occurred in Manning’s case, the trial court finding on this issue is

supported by the record. Todd v. State, 806 So.2d at 1092. Therefore, we find this issue to be

without merit.

II. Polygraph Evidence

¶22. Earl Jordan, a convicted burglar, was in jail at the same time as Manning. Jordan had

given statements to the police implicating two other men in the murders of Tiffany and Jon.

Investigators later ruled out the possibility that the others were involved in the crime. Jordan

then told the authorities that Manning had confessed to murdering the students. The State

offered Jordan’s testimony at trial. On cross-examination, Jordan admitted that he had

previously implicated others for the same crime and that he was hoping for favorable treatment

from the State on his pending charges. The cross-examination also highlighted some

2 In his motion to amend, proposed second amendment and objections to the trial court’s evidentiary hearing order, Manning opines that the record does not support the trial court’s finding that the cassette tapes and transcripts of the Hathorn/Manning telephone conversation were actually included in the large amount of evidence which the State, directly or through law enforcement, made available for review by defense counsel during the discovery process. However, from the entire record in this case, including the supplemented record, the trial court’s findings of fact are supported by a record sufficient to withstand attack under the appropriate “manifestly wrong/clearly erroneous” standard of review.” Miss. Dep’t. of Transp. v. Johnson, 873 So.2d 108, 111 (Miss. 2004); Vaughn v. Vaughn, 798 So.2d 431, 433-34 (Miss. 2001). See also, Sturdivant v. State, 745 So.2d 240, 243-44 (Miss. 1999).

10 discrepancies in Jordan’s testimony and the facts surrounding the crime. Then during the

re-direct examination, the prosecutor asked Jordan whether he volunteered to take a polygraph

on the information that he provided in this statement and Jordan answered affirmatively.

[The prosecution on re-direct] Now you were questioned at length about your motives, you were questioned at length about the substance of what you testified to. Mr. Jordan, didn’t you volunteer to take a lie detector test on this?

¶23. The defense objected, and the trial court initially sustained that objection. Moments

later the trial court reversed its decision, allowing the State to question Jordan about his

volunteering to take the polygraph.

[The prosecution after the objection was overruled]: Mr. Jordan, did you volunteer or agree to take AAA a lie detector test? A: Yes, I did.

The trial court then refused to allow defense counsel to conduct a re-cross-examination of

Jordan concerning his statement about the lie detector test.

¶24. On Manning’s direct appeal, this Court found no error in the prosecutor’s questions

about the polygraph and held that the questioning was proper since the State made no attempt

to disclose whether Jordan had actually taken the polygraph and/or the results of the test.

Manning v. State, 726 So.2d at 1179. This decision was based upon Conner v. State, 632

So.2d 1239, 1257-58 (Miss.1993), in which we held that the trial court did not abuse its

discretion when it allowed testimony concerning the willingness of a witness for the State to

take a lie detector test polygraph test in order to rehabilitate that witness’ testimony. With

respect to the polygraph test, Manning now argues that he is entitled to a new trial on three

bases.

11 ¶25. First, Manning argues that this Court has reversed its course since his direct appeal and

has now held that questioning a witness about his or her willingness to take a polygraph is

improper. Weatherspoon v. State, 732 So.2d 158 (Miss. 1999). In Weatherspoon, the

defendant wanted to testify that he had volunteered to take a polygraph test. The trial court

refused to allow that testimony and this Court affirmed noting that “it should be made clear that

any evidence pertaining to a witness’s offer to take a polygraph, refusal to take a polygraph test,

the fact that a witness took a polygraph test or the results of a polygraph test is inadmissible

at trial by the State or by the defense.” Id. at 163. In Weatherspoon, this Court specifically

noted Manning’s case:

Recently, in Manning v. State, 726 So.2d 1152 (Miss. 1998), relying on the Conner decision, this Court held that the testimony of State’s witness Earl Jordan that he had volunteered to take a polygraph examination “was proper redirect after Jordan’s credibility had been attacked on cross-examination by the defense.” Manning, 726 So.2d at 1179. Upon careful consideration and further review, we find that testimony pertaining to a witness’s offer to take a polygraph, whether it be a witness for the State or the defense, is not admissible at trial. To the extent that this holding affects Conner v. State, Lester v. State[, 692 So.2d 755 (Miss. 1997)], and Manning v. State, cited supra, those cases are overruled.

732 So.2d at 162.

¶26. Second, Manning argues that because he was not allowed to cross-examine Jordan after

the reference was made to the polygraph test, and that because there was no mention of the

polygraph made in the mandatory discovery, he had no opportunity to rebut this evidence.

¶27. Finally, Manning argues that he was denied his full right to discovery about whether

Jordan took a polygraph and the results of such test. He contends that he was unaware of a

polygraph examination until the information was first elicited by the State on the re-direct

examination of Jordan. Manning asserts that because of a lack of notice and discovery, he does

12 not know whether a polygraph examination was actually administered to Jordan and, if so, the

results of such an examination. Manning argues that while the prosecution knew that the results

of such an examination would be inadmissible, the prosecution used the question about

Jordan’s willingness to take a polygraph examination as a way of knowingly creating a false

impression of the evidence for the jury.

¶28. With respect to the discovery issue on the polygraph examination, Manning cites to

cases by the U.S. Supreme Court holding that the State’s knowing use of such evidence, or its

failure to correct false testimony or its presentation of evidence which creates a materially

false impression of the evidence, violates the defendant’s right to due process. Miller v. Pate,

386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct.

1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9

(1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

¶29. At the time of Manning’s trial, Conner v. State, 632 So. 2d 1239 (Miss. 1993), was the

precedent of this Court regarding the admissibility of polygraph testimony. In Conner, the

prosecution made two references to the polygraph: first, during the direct examination of its

star witness, Detective James Brown, and second, during closing arguments. Prior to Conner,

this Court had held that:

neither the results of a lie detector test nor the fact that one was taken is admissible as evidence, and that the introduction of such evidence constitutes reversible error. See Pennington v. State, 437 So.2d 37, 40 (Miss. 1983); Jordan v. State, 365 So.2d 1198 (Miss. 1978), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979); Mattox v. State, 240 Miss. 544, 128 So.2d 368 (1961). However, where the focus is not on the exam itself but instead on one’s willingness or reluctance to submit to a polygraph exam, the Court has arrived at a different conclusion.

13 In Stringer v. State, 454 So.2d 468 (Miss. 1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985), we held that the mere mention of the failure to submit to an examination could not be reversible error under the record in this case. It was inconsequential in the case compared with all the other evidence placed before the jury. Further bolstering of this opinion is that we are not dealing with the attempted introduction of the results of a polygraph examination, only the refusal to take one for whatever reason.... Stringer, 454 So.2d at 474-75; see also Garrett v. State, 549 So.2d 1325, 1330-31 (Miss. 1989) (where document disclosing defendant’s willingness to take lie detector test was inadvertently delivered to jury, Court ruled that, under Stringer, no reversible error occurred).

It is of course the rule in virtually all jurisdictions that a witness’s unimpeached or unquestioned credibility may not be bolstered by any means, including references to polygraphic evidence. See, e.g., Tiner v. State, 214 Miss. 551, 59 So.2d 287 (1952) (testimony supporting veracity of witness is inadmissible where veracity of witness has not been assailed); Sparks v. State, 820 S.W.2d 924, 929 (Tex.Ct.App.1991) (prosecution impermissibly bolstered witness’s testimony by asking, “Did you agree to take a polygraph examination?” where only purpose of question was to add credence to witness’s earlier, unimpeached testimony); United States v. Vigliatura, 878 F.2d 1346, 1349 (11th Cir.1989) (“a witness’s or defendant’s willingness to submit to a polygraph examination is inadmissible to prevent bolstering of credibility”).

Conner, 632 So. 2d at 1257-58 (emphasis in original). However, this Court announced a new

rule of procedure when it interpreted Miss. R. Evid. 608(b) which stated that once a witness’s

integrity has been impugned:

[s]pecific instances of the conduct of a witness, for the purpose of ... supporting his credibility, ... may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Conner, 632 So. 2d at 1259. We determined that the second exception applied to Conner’s

case. The defense had attacked the State’s witness regarding his credibility. Therefore, the

14 State in an attempt to rehabilitate this witness, questioned the detective regarding the witness’s

agreement to take a polygraph exam. We held that:

Although this Court has never explicitly held that references to polygraph tests are admissible when used to rehabilitate an impeached witness, the Court did find in Pittman v. State, 236 Miss. 592, 111 So.2d 415 (1959), that a reference to such a test on redirect examination, where the results of the test were not disclosed, did not amount to reversible error. See Pittman, 236 Miss. at 597- 98, 111 So.2d at 417. In light of Stringer, Pittman, and M.R.E. Rule 608, we find that the trial court did not abuse its discretion by permitting the prosecution to introduce evidence concerning Earnest Stevens’ agreement to take a lie detector test.

Conner, 632 So.2d at 1259. Therefore, at the time of Manning’s 1994 trial, the trial court

properly followed this Court’s precedent in allowing the State to attempt to rehabilitate a

witness by questioning him regarding his agreement to take a polygraph test, and we upheld the

trial court’s action on direct appeal. Manning, 726 So.2d at 1179.

¶30. In 1999, five years after Manning’s trial, this Court handed down Weatherspoon which

overruled Conner and the previous Manning decision. In Weatherspoon, during a bench

conference, defense counsel informed the trial court that he was going to ask the defendant to

testify to the fact that he offered to take a polygraph test. The State objected, and the trial court

sustained the objection, finding the proffered testimony would not be proper evidence. Id. at

162. We agreed with the trial court and held:

Upon careful consideration and further review, we find that testimony pertaining to a witness’s offer to take a polygraph, whether it be a witness for the State or the defense, is not admissible at trial. To the extent that this holding affects Conner v. State, Lester v. State, [692 So. 2d 755 (Miss. 1997)] and Manning v. State, [] those cases are overruled.

Weatherspoon, 732 So.2d at 162.

15 ¶31. Therefore, today’s question before this Court, is whether Weatherspoon may be applied

retroactively. Manning’s direct appeal is final and the case sub judice is before us on a motion

for post-conviction relief. In Nixon v. State, 641 So. 2d 751 (Miss. 1994), this Court was

faced with a similar situation. Nixon was convicted of capital murder and was sentenced to

death. His conviction and sentence were affirmed on direct appeal. Nixon then filed a petition

for post-conviction relief on the grounds that the intervening decision of Powers v. Ohio, 499

U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), applied retroactively. We disagreed and

denied his petition.

¶32. On direct appeal, Nixon argued that the State’s discriminatory use of peremptory

challenges violated his constitutional rights. Nixon, 641 So. 2d at 753. We concluded that

because Nixon was white, he could not object to the exclusion of black jurors. Id. However,

in Powers, the United States Supreme Court held that “a criminal defendant may object to a

prosecutor’s discriminatory use of peremptory challenges even though the defendant was not

of the same race as the challenged juror.” Nixon, 641 So. 2d at 753. Therefore, on motion for

PCR, Nixon argued that this presented a new rule of federal constitutional law which applied

retroactively. Id. Thus, this Court had to decide whether Nixon was procedurally barred from

raising this issue or whether this decision could be applied retroactively.

¶33. In Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 1075-76, 103 L.Ed.2d 334, 356

(1989), the United States Supreme Court held, by a plurality vote3 that “a new rule of

constitutional law will not be applied retroactively to a case on habeas review unless it falls

3 The plurality’s decision was approved by the majority in Sawyer v. Smith, 497 U.S. 227, 110 S.Ct 2822, 111 L.Ed.2d 193 (1990).

16 within one of two limited exceptions.” “The first exception suggested by Justice Harlan--that

a new rule should be applied retroactively if it places ‘certain kinds of primary, private

individual conduct beyond the power of the criminal law-making authority to proscribe,’” and

the second exception is “reserved for watershed rules of criminal procedure.” Id. In approving

this plurality decision, the United States Supreme Court later held that:

The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. This is but a recognition that the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.

Sawyer, 497 U.S. at 234, 110 S.Ct. at 2827, 111 L.Ed.2d at 206. Finding that this rationale

was consistent with the Mississippi Uniform Post-Conviction Collateral Relief (“PCR”) Act,

this Court stated that:

Accordingly, in determining whether a prisoner may avail himself of an intervening decision, this Court applies our PCR act to determine whether an issue raised on PCR is one warranting relief from waiver based on cause and actual prejudice, as contemplated by § 99-39-21(1), or one not procedurally barred, although litigated at trial and on direct appeal, because of the existence of cause and actual prejudice, as contemplated by § 99-39-21(2). Application of this test is based on state law grounds. See Miss. Code Ann. §§ 99-39-3, 99- 39-21(1), and 99-39- 21(2) (Supp.1993).

Nixon, 641 So.2d at 754-55 (footnotes omitted). As to the cause element of the PCR Act, we

found that Powers did create a new rule of law and that prior to the new rule, there was no

indication that Batson would be changed; therefore, the showing of cause had been met by the

intervening decision. Nixon, 641 So. 2d at 755. We relied heavily on Teague in determining

if there was a showing of actual prejudice. We determined that pursuant to Teague the

17 defendant would have to show actual prejudice within one of the two exceptions enumerated

by the Supreme Court.

The first Teague exception is not met in this case because “[a]pplication of the fair cross section requirement to the petit jury would not accord constitutional protection to any primary activity whatsoever.” Accord Teague, 489 U.S. at 311, 109 S.Ct. at 1075-76, 103 L.Ed.2d at 356. Stated differently, the new rule does not place a category of primary conduct beyond the reach of the criminal law nor does it prohibit punishment for a class of defendants. Teague, 489 U.S. at 311, 109 S.Ct. at 1075-76, 103 L.Ed.2d at 356. The second Teague exception affords Nixon no comfort because it is limited to those new procedures without which the likelihood of an accurate conviction is seriously diminished. Restated, “absence of a fair cross section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction.” Id. at 315, 109 S.Ct. at 1078, 103 L.Ed.2d at 359. The Teague Court concluded that “a rule requiring that petit juries be composed of a fair cross section of the community would not be a ‘bedrock procedural element’ that would be retroactively applied under the second exception.” Teague, 489 U.S. at 315, 109 S.Ct. at 1078, 103 L.Ed.2d at 359.

Nixon, 641 So.2d at 755. Therefore, we held that because there was no actual prejudice

suffered by Nixon, he was not entitled to relief pursuant to the Act. Id. Further, we held that

“the Powers decision should not be applied retroactively to Nixon’s final conviction as the

Powers rule is not a prerequisite to fundamental fairness of the type that may come within the

exception.” Id.

¶34. The United States Supreme Court has once again addressed this issue. In Schriro v.

Summerlin, 542 U.S.348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the Supreme Court held

that the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d. 556 (2002),

was procedural and did not apply to death penalty cases already final on direct appeal, nor did

18 it announce a watershed rule of criminal procedure. Therefore, the Ninth Circuit’s invalidation

of the defendant’s death sentence was reversed.

¶35. In Schriro, the Supreme Court stated that:

When a decision of this Court results in a “new rule,” that rule applies to all criminal cases still pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, see Bousley v. United States, 523 U.S. 614, 620-621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish, see Saffle v. Parks, 494 U.S. 484, 494-495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). Such rules apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal’” or faces a punishment that the law cannot impose upon him. Bousley, supra, at 620, 118 S.Ct. 1604 (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of “‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, supra, at 495, 110 S.Ct. 1257 (quoting Teague, 489 U.S., at 311, 109 S.Ct. 1060). That a new procedural rule is “fundamental” in some abstract sense is not enough; the rule must be one “without which the likelihood of an accurate conviction is seriously diminished.” Id., at 313, 109 S.Ct. 1060 (emphasis added). This class of rules is extremely narrow, and “it is unlikely that any ... ‘ha[s] yet to emerge.’” Tyler v. Cain, 533 U.S. 656, 667, n. 7, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (quoting Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990)).

Schriro, 124 S.Ct. at 2522-23.

19 ¶36. A rule is procedural if that rule “regulates the manner of determining the defendant’s

culpability.” Id. at 2523. However, a rule is substantive if that rule “alters the range of conduct

or the class of persons that the law punishes.” Id. Because Ring held that “a sentencing judge,

sitting without a jury, [may not] find an aggravating circumstance necessary for imposition of

the death penalty,” Ring's holding is classified as procedural. Ring, 536 U.S. at 609, 122 S.Ct.

2428. “Ring altered the range of permissible methods for determining whether a defendant's

conduct is punishable by death, requiring that a jury rather than a judge find the essential facts

bearing on punishment. Rules that allocate decisionmaking authority in this fashion are

prototypical procedural rules. . . .” Schriro, 124 S.Ct. at 2523.

¶37. As to the watershed requirement, the Supreme Court found that the “evidence [was]

simply too equivocal to support the conclusion” that “judicial factfinding so ‘seriously

diminishe[s]’ accuracy that there is an ‘impermissibly large risk’ of punishing conduct the law

does not reach.” Id. at 2525. Therefore, the Supreme Court held that “Ring announced a new

procedural rule which did not retroactively apply to cases already final on direct review.” Id.

at 2526. Applying the rules found in Teague, Schriro and Nixon, we find that Weatherspoon

announced a procedural rule which did not retroactively apply to cases already final on direct

review.

¶38. As in Nixon, Weatherspoon did create a new rule of law, finding that polygraph test

evidence was not admissible. During Manning’s trial, the State was allowed on re-direct

examination to question its witness, Earl Jordan, as to whether he volunteered to take a

polygraph exam. This was the only time this test was mentioned by the State. However,

20 Manning, through counsel, got before the jury on three different occasions that one of

Manning’s witnesses, Carl Rambus, had agreed to take a polygraph examination. Rambus had

testified that Manning was not the person who had attempted to sell him the ring (identified as

Jon’s high school class ring). On re-direct examination by defense counsel, Rambus stated he

had agreed to take a polygraph examination. During defense counsel’s cross-examination,

Detective David Lindley testified that Rambus had agreed to take a polygraph examination.

During defense counsel’s cross-examination, Sheriff Dolph Bryan testified that Rambus had

agreed to take a polygraph examination. During defense counsel’s cross-examination,

Detective Gary Turner could not confirm that Rambus had agreed to take a polygraph

examination. During the closing argument to the jury, defense counsel argued, inter alia:

You heard Carl Rambus or heard the sheriff and the deputy, the detective, David Lindley, all testify Carl Rambus agreed to take a polygraph.

Thus, the jury heard Manning’s counsel make references on five different occasions that

Manning’s witness, Carl Rambus, had offered to take a polygraph examination.

¶39. Without question, Weatherspoon created a new rule of law concerning the admissibility

of polygraph evidence, or references to polygraph examinations, and that prior to the new rule,

there was no indication that our rule as pronounced in Conner would be changed. Thus, the

element of cause was met by the intervening decision.

¶40. As to actual prejudice, neither of the two elements enumerated in Teague are met.

First, “the new rule does not place a category of primary conduct beyond the reach of the

criminal law nor does it prohibit punishment for a class of defendants.” 489 U.S. at 311, 109

S.Ct. at 1075-76, 103 L.Ed.2d at 356. Second, this procedural rule does not diminish the

21 likelihood of an accurate conviction. Id. at 315, 109 S.Ct. at 1078, 103 L.Ed.2d at 359.

Because no actual prejudice is suffered by Manning, he is afforded no relief pursuant to the

Act.

¶41. Because Weatherspoon was a procedural rule and it did not announce a watershed rule

of criminal procedure, its holding may not be retroactively applied to Manning’s case which

was final on direct review. Therefore, this issue is without merit.

III. Ineffective Assistance of Counsel

¶42. “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.” Strickland v. Washington, 466 U.S.

668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claimant must demonstrate that counsel’s

performance was deficient and that the deficiency prejudiced the defense of the case. Id. at

687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the

conviction or death sentence resulted from a breakdown in the adversary process that renders

the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss. 1984) (citing Strickland,

466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry is on whether counsel’s assistance

was reasonable considering all the circumstances. Id. A reviewing court must strongly presume

that counsel’s conduct falls within a wide range of reasonable professional assistance. Further,

one who claims ineffective assistance must overcome another presumption that the challenged

act or omission “might be considered sound trial strategy.” Id. at 477. In other words, defense

counsel is presumed competent. Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

22 ¶43. As for the second prong of prejudice to the defense, a reviewing court must determine

whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.

1991). This means a “probability sufficient to undermine the confidence in the outcome.” Id.

¶44. In a death penalty case, the ultimate inquiry is “whether there is a reasonable probability

that, absent the errors, the sentencer would have concluded that the balance of the aggravating

and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct.

2052. There is no constitutional right to errorless counsel. Mohr, 584 So.2d at 430. The right

to effective counsel does not entitle a defendant to have an attorney who makes no mistakes

at trial but simply affords the right to have competent counsel. If the post-conviction

application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v.

State, 743 So.2d 326, 334 (Miss. 1999) (citing Foster v. State, 687 So.2d 1124, 1130 (Miss.

1996)). We thus proceed to address the claims of ineffective assistance of counsel as to: (A)

impeachment of Earl Jordan and Frank Parker; (B) the testimony of Paula Hathorn; and (C)

defense counsel’s failure to present an alibi defense and mitigating evidence and failure to

preserve issues for appeal.

A. Failure to impeach Earl Jordan and failure to adequately develop evidence to impeach Frank Parker.

¶45. Manning argues that his defense counsel was ineffective for failing to properly impeach

Earl Jordan and failing to cross-examine Jordan about certain details of his testimony and any

deal that may have been struck with the State in exchange for the testimony. Likewise, Manning

asserts that his trial counsel was ineffective for failing to exercise due diligence and failing

23 to uncover evidence to impeach Frank Parker, another jailhouse informant. Manning argues that

failure to follow-up for purposes of impeachment, failure to lay a proper foundation to rebut

the testimony of the State’s star witness, failure to follow well-established evidentiary rules

and missed opportunities to impeach Jordan as a credible witness, meets the Strickland

standard of ineffective assistance of counsel.

¶46. The State asserts that Manning’s ineffective assistance of counsel claim as to Jordan’s

testimony was addressed on direct appeal and cannot be relitigated in post-conviction

proceedings. Furthermore, the State argues that Manning’s claim of ineffective assistance of

counsel as to Parker’s testimony is procedurally barred for failure to raise it on direct appeal,

noting that several other claims of ineffective assistance were raised on direct appeal and that

this one should have been included. Lastly, the State argues that Manning’s claim that his

counsel failed to adequately impeach Frank Parker is absolutely refuted by the trial transcript.

¶47. The State is correct. On direct appeal, we found that Jordan was thoroughly

cross-examined and that there was other evidence before the jury that Jordan was hoping for

a favorable deal in exchange for his testimony. The transcript indicates that the defense counsel

cross-examined Jordan and attempted to discredit his testimony. Manning’s defense counsel’s

performance was not deficient merely because he did not conduct the cross-examination of

Jordan in every regard as the post-conviction counsel asserts he should have done.

Post-conviction counsel has the benefit of hindsight. See Bell v. Cone, 535 U.S. 685, 702, 122

S.Ct. 1843, 152 L.Ed.2d 914 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct.

2574, 91 L.Ed.2d 305 (1986); United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039,

80 L.Ed.2d 657 (1984).

24 ¶48. Notwithstanding the procedural bar, as to the testimony of Frank Parker, the transcripts

reveal that defense counsel conducted a thorough cross-examination of Parker, including the

fact that he had criminal charges in Texas dropped after he came forward with information in

Manning’s case. Defense counsel also pursued a line of questioning attempting to call into

doubt whether Parker could really have overheard the conversation in which Manning stated

that he sold the gun(s) on the street. We find that these claims fail to meet the Strickland test

and are without merit.

B. Testimony of Paula Hathorn.

¶49. Manning argues that defense counsel, Mark G. Williamson, had a conflict of interest

because he had previously represented Paula Hathorn, one of the State’s key witnesses, on bad

check charges. Manning also asserts that the trial judge was on notice of the conflict and

committed error when he did not conduct a thorough inquiry into any possibility of a conflict.

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). If the trial judge has

a reasonable basis to believe that defense counsel faces an actual conflict, the judge must

conduct a hearing. The failure to do so mandates reversal. Holloway v. Arkansas, 435 U.S.

475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Manning asserts that “an actual conflict exists

when defense counsel is compelled to compromise his or her duty of loyalty or zealous

advocacy to the accused by choosing between or blending the divergent of competing interests

of a former or current client.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). This

conflict, Manning argues, had an adverse effect on his defense because his attorney had no real

opportunity to rebut or refute any of the false testimony that Hathorn provided and her false

testimony undermined the credibility of Manning’s defense.

25 ¶50. The State succinctly argues that this claim was raised on direct appeal and cannot be

relitigated on post-conviction review. See Miss. Code Ann. § 99-39-21(3); Wiley v. State, 750

So.2d 1193, 1200 (Miss. 1999); Foster v. State, 687 So.2d 1124, 1135-37 (Miss. 1996). The

allegations that the State presented evidence that created a false impression and withheld

information from the defense is all supported in Manning’s post-conviction relief application

by an affidavit of Hathorn given during a recent incarceration and vaguely expressed, years after

the trial.

¶51. In Manning’s case, Hathorn was merely a witness, not a party to this action and

Williamson’s representation was completely unrelated to the events and charges of the

Manning case. There was no reasonable basis for the judge to conduct a hearing as to any such

conflict. On direct appeal, we found that defense counsel conducted a full cross-examination

of Hathorn, and there is no reasonable probability that the result of the trial would have been

different if the jury had never known that defense counsel had represented Hathorn in the past.

726 So.2d at 1169. Furthermore, on direct appeal, this Court held that defense counsel had

no conflict in his representation of Manning. Id. This issue has been litigated and is barred

as a basis for post-conviction relief, and alternatively, upon consideration, it is also without

merit.

¶52. Also related to Hathorn’s trial testimony, Manning alternatively asserts that his trial

counsel was ineffective for not adequately impeaching Hathorn. Manning claims that his

attorney failed to take steps to establish the falsity of her testimony about his representation

of her and he failed to impeach her with the vast number of bad checks that she had written

since she first began giving statements to the sheriff. Manning argues that such impeachment

26 would have shown Hathorn’s willingness to lie because of her anger and would have revealed

Hathorn’s false testimony about Williamson’s representation of her, the magnitude of

Hathorn’s criminal history, and the subsequent lenient treatment that Hathorn received on her

pending charges.

¶53. The State again argues res judicata and procedural bar to this claim. The State also

asserts that the charges of trial counsel’s ineffectiveness are refuted by the trial transcripts and

an on-point review of those issues on direct appeal.

¶54. This issue was litigated on direct appeal and this Court found Manning’s trial court

representation to be effective. The Court noted that “the record indicates that Williamson

conducted a full cross-examination of Hathorn.” Id. We find that this issue is procedurally

barred and without merit, and additionally, it is without merit. Defense counsel conducted a

full cross-examination of Hathorn and while Hathorn did make comments as to defense

counsel’s past representation of her, it was not in such a way as to prejudice Manning’s defense

or cause counsel to be ineffective.

¶55. In his motion to amend and proposed amendment to his PCR motion, as well as his

objections to the trial court’s evidentiary hearing order, Manning asserts that if we should

accept the trial court’s findings of fact, the court-ordered evidentiary hearing conducted by the

trial court revealed ineffective assistance of trial counsel when he either overlooked the

micro-cassette tapes and partial transcripts of the telephonic conversations between Hathorn

and Manning, or having seen this evidence, failed to attach any significance to them so as to

use this evidence for impeachment of Hathorn. Additionally, Manning asserts that the

evidentiary hearing revealed there was other evidence which Sheriff Dolph Bryan offered for

27 examination which defense counsel simply failed to review. First of all, we find procedural

bar; however, procedural bar notwithstanding, we discuss this additional claim and deny this

claim on its merits. As discussed, supra, concerning Issue I as to “Exculpatory Evidence,” the

trial court appropriately found on remand that inasmuch as these telephonic conversations were

“scripted” by law enforcement by getting Hathorn to ask particular questions of Manning in an

effort to prompt incriminating statements from him, the taped conversations had little if any

impeachment value. The record in today’s case clearly reveals the existence of an enormous

amount of evidence. We refuse to find ineffective assistance of counsel based on a perceived

or claimed failure to examine every piece of evidence in every box. Thus, this issue is without

merit.4

C. Alibi Defense.

¶56. Trial counsel produced several witnesses that placed Manning at a nightclub on the night

of the murders. However, two of those witnesses were only able to testify that they saw

Manning at around 11:30 or 12:00. The testimony of Manning’s other witnesses was

impeached and criticized by the State as being unreliable. Manning asserts that if trial counsel

had conducted a more thorough investigation he could have presented a substantially stronger

case. Post-conviction counsel includes the affidavits of Sherron Armstead Mitchell, Doug

Miller and Troylin Jones. The recollections of these witnesses place Manning at the nightclub

well after midnight, and one of the witnesses’ statements placed Manning at the nightclub at

4 As already noted, Manning has likewise filed a 26-page objection to the circuit court’s entry of its “Evidentiary Hearing Order,” which order was entered subsequent to the trial court’s conducting an evidentiary hearing pursuant to this Court’s order. In essence, through this written objection, Manning requests that we “reject” this order. This we refuse to do, and the objection is thus denied as reflected by an order this day entered.

28 the very hour that the murders were taking place. Manning argues that he was prejudiced by

counsel’s failure to develop more substantial evidence in support of his alibi and notes that

reviewing courts have found counsel ineffective for inadequately presenting an alibi defense.

See Grier v. State, 299 S.C. 321, 384 S.E.2d 722 (1989).

¶57. We find that Manning fails to establish that his trial counsel’s performance was

deficient where counsel produced several witnesses placing Manning at a nightclub on the night

of the murder.

D. Preservation of issues for direct appeal.

¶58. Manning argues that trial counsel failed to preserve several issues, including his

assertion that the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986), in striking blacks from the jury pool where his reasons were pretextual.

Likewise, Manning argues that trial counsel’s performance was deficient for failing to object

when Hathorn testified as to Manning’s prior bad acts and character. Manning also argues that

defense counsel promised, in his opening statement, to produce testimony that someone else

had confessed to the crime. When the defense counsel did not follow through by presenting

this testimony, the prosecutor noted it in his closing argument. Thus, according to Manning,

the defense attorney’s unkept promise of such testimony was detrimental to his defense.

Finally, Manning asserts that defense counsel was ineffective for failing to object when the

prosecutor referred to Manning as a “monster” and likened the case to the O.J. Simpson case.

¶59. The State argues that Manning is wrong to assert that the defense counsel did not

preserve Batson claims. The defense attorney did raise a claim under Batson, and the trial

court required the State to give race-neutral reasons for its peremptory challenges. Those

29 reasons were then reviewed by this Court on appeal. 726 So.2d at 1183-86. Next, the State

argues that Manning’s claim that the defense counsel was ineffective for failing to object to

Hathorn’s testimony cannot be sustained where the underlying substantive issue was raised on

direct appeal and decided against the Manning.

¶60. The State correctly points out that the issue of Hathorn’s testimony and whether or not

trial counsel was ineffective was litigated on direct appeal and that it is now procedurally

barred. As for the merits of this claim, we find that Manning’s claims do not rise to the level

of Strickland, and we thus, alternatively, deny this issue on its merits.

E. Mitigation Evidence.

¶61. Manning asserts that trial counsel had a duty to uncover all relevant mitigating evidence

and to conduct a thorough investigation into possible mitigating evidence. The record indicates

that there were witnesses who had knowledge of Manning’s family and were willing to

cooperate with defense counsel. Specifically, there are letters in the file from Mark

Williamson (defense counsel) to Richard Burdine (co-counsel) suggesting witnesses for the

mitigation portion of the penalty phase of trial. Those witnesses were apparently never

contacted. Furthermore, Manning includes affidavits from an attorney in Louisiana and an

investigator which declare the existence of valuable mitigating evidence that was never

presented at trial. Failing to present such evidence, Manning argues, is proof of his trial

counsel’s deficient performance and satisfies both prongs of Strickland.

¶62. The “failure to present a case in mitigation during the sentencing phase of a capital trial

is not, per se, ineffective assistance of counsel.” Williams v. State, 722 So.2d 447, 450 (Miss.

1998), citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir. 1997). In the present case,

30 Manning’s defense attorney did in fact present a case in mitigation for the jury to consider.

Furthermore, this claim was raised on direct appeal and the Court found that Manning failed

to show prejudice related to the trial counsel’s failure to call other witnesses. Likewise, the

Court noted that “additional character witnesses would not have, with any reasonable

probability tipped the balance between mitigators and aggravators.” 726 So.2d at 1170. This

claim is procedurally barred where this Court has already addressed its merits; however,

alternatively, we find this issue to also be without merit.

F. Closing argument.

¶63. Manning argues that because of the lack of investigation and preparation for the penalty

phase of trial, the defense counsel had nothing substantial to present in his closing argument.

Manning argues that defense counsel, therefore, presented a powerless and incoherent closing

argument which resulted in prejudice to his defense. Thus, it is Manning’s position that this

satisfies both prongs of Strickland and warrants post-conviction relief.

¶64. On direct appeal, this Court found that trial counsel’s closing argument was coherent

and not a poor strategic choice. We noted: “It is the opinion of this Court that Burdine’s

performance was not deficient.” Id. at 726 So.2d at 1171. Because we addressed this issue on

direct appeal, we now find this issue procedurally barred; however, alternatively, we again

reiterate it is without merit.

G. Failure to object.

¶65. Manning argues that the prosecutor’s remark during the State’s closing argument

improperly elaborated on religious themes and violated his constitutional right to a reliable

determination of his sentence. He also asserts that the prosecutor made improper and

31 prejudicial references to what Manning might do if he were paroled. Furthermore, Manning

argues that his trial counsel was ineffective for failing to object to these remarks and preserve

the issues for appeal.

¶66. The State counters that the claim was not raised on direct appeal and is therefore barred.

Without waiving the bar, the State argues that this Court has held that arguments with scriptural,

religious or biblical references are proper when made in response to scriptural or religious

arguments by defense counsel. Looking to the transcript, it is clear that the prosecutor was

responding to those type of “vengeance is mine” arguments set out by the defense.

¶67. We agree that this claim is barred for failure to raise it on direct appeal.

Notwithstanding procedural bar, we find this claim has no merit where this Court has found

Biblical or scriptural references in closing arguments to be within the broad latitude afforded

at trial.

[t]his Court has continually held that counsel is afforded broad latitude in closing argument. This latitude, set out by the Court in Nelms & Blum Co. v. Fink, 159 Miss. 372, 382-383, 131 So. 817, 820 (1930), has been referred to in the context of capital cases. In Nelms, we stated that “[c]ounsel may draw upon literature, history, science, religion, and philosophy for material for his argument.” Id. at 382-384, 131 So. 817. See Hansen v. State, 592 So.2d 114, 139-140 (Miss. 1991).

Berry v. State, 703 So.2d 269, 281 (Miss. 1997). Considering the merits of this issue,

Manning fails to demonstrate prejudice regarding the State’s scriptural references or parole

argument during closing argument of the sentencing phase of Manning’s trial. We thus find

this issue to be without merit.

IV. Cumulative Error

32 ¶68. As we have found no error, we necessarily find no cumulative error requiring

post-conviction relief. If there is “no reversible error in any part, so there is no reversible error

to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss. 1987). See also Byrom v. State,

863 So.2d 836, 847 (Miss. 2003); Caston v. State, 823 So.2d 473, 509 (Miss. 2002); Hicks

v. State, 812 So.2d 179, 195 (Miss. 2002). Therefore, this issue is without merit.

CONCLUSION

¶69. Accordingly, for the reasons herein stated, we find that Willie Manning is not entitled

to seek post-conviction relief; therefore, his post-conviction relief motion is denied.

¶70. PETITION FOR POST-CONVICTION RELIEF, DENIED.

SMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, EASLEY AND GRAVES, JJ., NOT PARTICIPATING.