PARCHMAN — A Mississippi man convicted of killing four young nieces and nephews in a 1990 stabbing rampage was executed Tuesday, despite pleas from his two sisters to spare the brother who killed their children. Henry "Curtis" Jackson Jr. was pronounced dead at 6:13 p.m. Tuesday after receiving an injection at the State Penitentiary at Parchman, officials said. Clad in a red prison jumpsuit as he lay strapped to a gurney, Jackson was asked if he wanted to make a statement. "No, I don't," he responded as family members sat somberly in a nearby witness room.

Jackson's sister, Glenda Kuyoro, stifled a sob when she walked into the witness room earlier and saw her brother on the gurney. Jackson's eyes were closed when the witnesses arrived and he never looked in the direction of his family. Earlier, the 47-year-old inmate had spent the day receiving relatives, including one of the sisters whose two children were slain and who survived the stabbing attack. The slain children ranged from 2 to 5 and were killed as Jackson reportedly was trying to steal his mother's safe while she was away at church, court records showed.

Regina Jackson, the sister who survived five stab wounds the same night her children were killed, said she had forgiven her brother for the events of what she called "the most brutal night of my life." "I loved my brother Curtis because of the person that he was, not for the man that he became that night. The devil entered into Curtis' mind and persuaded him to destroy his family," she said at a news briefing after the execution. Wearing a white T-shirt with a photo of one child on the front and the other child on the back, she said she had stayed in contact with her brother over the years. "I really and truly loved my brother and I forgave him for what he did to me and my children," she said.

Late Tuesday afternoon, Republican Gov. Phil Bryant declined to stop the execution though he said he was "deeply touched" by requests for clemency from the sisters and his brother-in-law. "There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency," Bryant said. His statement added: "One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children. However, as governor, I have the duty to see that justice is carried out."

Corrections Commissioner Chris Epps said at a penitentiary briefing earlier Tuesday that the inmate acknowledged the crime and was talkative as he received relatives.

Regina Jackson had met with the governor Monday and pleaded for her brother's life. She also wrote Bryant a letter last month saying she "just can't take any more killing." "As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote. Kuyoro and her husband, Andrew, also had asked Bryant to spare the inmate in a letter dated May 15. "We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros had written earlier. Andrew Kuyoro said they, too, had forgiven Jackson. "I pray to the Lord to forgive him and give him peace. At this point in our lives we have to pick up the pieces and move on with the grace of God," he said.

The attack took place Nov. 1, 1990, at Jackson's mother's home in the Delta region. The mother was at church that day, and Regina Jackson was there with her two daughters and four nieces and nephews. Her two daughters and two nephews were stabbed to death, records showed. Another niece was so severely injured that she was a paraplegic until her recent death. Jackson has said he doesn't remember stabbing the children, but there was testimony at his September 1991 trial that he cut the phone line before going in the house, then demanded money and began the attack, according to the court record.

Regina Jackson testified at trial that she lapsed in and out of consciousness after being tied up and stabbed in the neck, but she could hear her brother dragging a safe down a hall. The noise awoke 5-year-old Dominique, one of her daughters. "Regina testified that Jackson called Dominique to him, told her that he loved her, stabbed her, and tossed her body to the floor," according to the court record.

Jackson Clarion-Ledger

Two women are asking Mississippi's governor to spare their brother from execution, even though he killed four of their children, paralyzed another and stabbed one of the sisters. Henry "Curtis" Jackson Jr. is scheduled to die today by injection. He killed the kids, ages 2 to 5, during a rampage that started when he went to his mother's home in Leflore County to take money from her safe on Nov. 1, 1990, court records say. His mother was at church that day, but Jackson's adult sister, Regina Jackson, was at the home with her two daughters and four nieces and nephews. Regina Jackson was stabbed five times. Her two daughters and two nephews were stabbed to death. Another niece was so severely injured that she was paraplegic until her recent death.

Regina Jackson told The Associated Press that she was scheduled to meet with Gov. Phil Bryant on Monday and would plead for her brother's life. She also wrote Bryant a letter last month asking for a reprieve, saying she doesn't want her brother to get out of prison and that she "just can't take any more killing." "As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote. She told AP in a telephone interview that she has forgiven her brother over the years. "If they kill him, they're doing the same thing that he did. The dying is going to have to stop somewhere."

Another sister and her husband, Glenda and Andrew Kuyoro, also have asked Bryant in a letter dated May 15 to spare Curtis Jackson. The couple said they have tried for years to understand why Jackson attacked his relatives, and they know their questions may never be answered, but that they surely won't if he dies. "We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros wrote. "We are not asking you to take pity on Curtis, we're asking you to show US mercy. We have been through enough."

Curtis Jackson's attorney, Robert Davis Jr. of Tupelo, filed a clemency request with Bryant's office last week. Bryant's spokesman, Mick Bullock, said Monday the governor "is reviewing the facts associated with this case and has no further comment at this time." Bryant, a Republican and former deputy sheriff, has not granted clemency to a condemned inmate since taking office in January.

Cliff Johnson, a Jackson attorney helping the sisters, said Monday that the case is unusual because the victims are asking for clemency for the attacker. "Much is said about the importance of respecting the rights and wishes of victims and their families. This case raises a very important question. Are we committed to honoring the wishes of victims' families when they ask for mercy, or do we hear those voices only when they ask for vengeance?" Johnson asked.

Jackson, 47, has appealed over the years. He has said he doesn't remember stabbing the children, but testimony from his trial describes a horrific scene. He cut the phone line before going in the house, according to the court record. Once inside, he demanded money and attacked his sister. One of the children tried to help, but he stabbed her, too. At some point, Regina Jackson tried to fight him off with an iron rod, but he grabbed one of the children and used her as a shield.

Regina Jackson testified at trial that she was in and out of consciousness after being tied up and stabbed in the neck, but she could hear her brother dragging a safe down a hall. The noise woke up 5-year-old Dominique, one of her daughters. "Regina testified that Jackson called Dominique to him, told her that he loved her, stabbed her, and tossed her body to the floor," according to the court record. "Jackson returned to Regina, stabbing her in the neck and twisting the knife, at which point she pretended to be dead until she heard him leave." Jackson turned himself in to the West Point Police Department and confessed to some details. He was convicted and sentenced to death on four counts of capital murder after a trial in September 1991. The trial was held in Copiah County after Jackson's defense attorney requested a change of venue. Andrew Kuyoro has testified during the sentencing phase and said he did not want his brother-in-law to be executed.

His mother, Martha Jackson, said Monday she has forgiven her son and plans to visit him before the execution. "If I don't forgive him, God don't forgive me," she said. Martha Jackson said she's not sure if she'll watch the lethal injection, scheduled for 6 p.m. at the State Penitentiary at Parchman. Regina Jackson and Glenda Kuyoro are among those scheduled to watch the execution, according to the Mississippi Department of Corrections.

Biloxi Sun Herald

PARCHMAN, Miss. — A Mississippi man convicted of killing four young nieces and nephews in a 1990 stabbing rampage was executed Tuesday, despite pleas from his two sisters to spare the brother who killed their children. Henry "Curtis" Jackson Jr. was pronounced dead at 6:13 p.m. CDT Tuesday after receiving an injection at the Mississippi State Penitentiary at Parchman, officials said. Clad in a red prison jumpsuit as he lay strapped to a gurney, Jackson was asked if he wanted to make a statement. "No, I don't," he responded as family members sat somberly in a nearby witness room.

Jackson's sister, Glenda Kuyoro, stifled a sob when she walked into the witness room earlier and saw her brother on the gurney. Jackson's eyes were closed when the witnesses arrived and he never looked in the direction of his family. Earlier, the 47-year-old inmate had spent the day receiving relatives, including one of the sisters whose two children were slain and who survived the stabbing attack. The slain children ranged from 2 to 5 and were killed as Jackson reportedly was trying to steal his mother's safe while she was away at church, court records showed.

Regina Jackson, the sister who survived five stab wounds the same night her children were killed, said she had forgiven her brother for the events of what she called "the most brutal night of my life." "I loved my brother Curtis because of the person that he was - not for the man that he became that night. The devil entered into Curtis' mind and persuaded him to destroy his family," she said at a news briefing after the execution. Wearing a white tee-shirt with a photo of one child on the front and the other child on the back, she said she had stayed in contact with her brother over the years. "I really and truly loved my brother and I forgave him for what he did to me and my children," she said.

Late Tuesday afternoon, Republican Gov. Phil Bryant declined to stop the execution though he said he was "deeply touched" by requests for clemency from the sisters and his brother-in-law. "There is no question that Mr. Jackson committed these heinous crimes, and there is no clear and convincing evidence that compels me to grant clemency," Bryant said. His statement added: "One of these sisters was a stabbing victim, and both of the sisters are mothers of the murdered children. However, as governor, I have the duty to see that justice is carried out." Corrections Commissioner Chris Epps said at a penitentiary briefing earlier Tuesday that the inmate acknowledged the crime and was talkative as he received relatives.

Regina Jackson met with the governor Monday and pleaded for her brother's life. She also wrote Bryant a letter last month saying she "just can't take any more killing." "As a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother," she wrote. Kuyoro and her husband, Andrew, also had asked Bryant to spare the inmate in a letter dated May 15. "We are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution," the Kuyoros had written earlier. Andrew Kuyoro said they, too, had forgiven Jackson. "I pray to the Lord to forgive him and give him peace. At this point in our lives we have to pick up the pieces and move on with the grace of God," he said.

Epps said Jackson became very solemn as time for the execution neared. "He was very quiet. He didn't say anything to us at the end," Epps said.

The attack took place Nov. 1, 1990, at Jackson's mother's home in the Delta region. The mother was at church that day, and Regina Jackson was there with the children. Another niece was so severely injured that she was a paraplegic until her recent death. Jackson has said he doesn't remember stabbing the children, but there was testimony at his September 1991 trial that he cut the phone line before going in the house, then demanded money and began the attack, according to the court record.

Regina Jackson testified at trial that she lapsed in and out of consciousness after being tied up and stabbed in the neck, but she could hear her brother dragging a safe down a hall. The noise awoke 5-year-old Dominique, one of her daughters. "Regina testified that Jackson called Dominique to him, told her that he loved her, stabbed her, and tossed her body to the floor," according to the court record. "Jackson returned to Regina, stabbing her in the neck and twisting the knife, at which point she pretended to be dead until she heard him leave." Jackson subsequently surrendered to police. He was convicted of four counts of capital murder at trial and sentenced to death.

Mississippi Department of Corrections (Offender Data Sheet)

Mississippi Department of Corrections (Media Kit)

State Death Row Inmate William J. Mitchell
MDOC #31271
Black Male
DOB – 07.04.1950

Factual Background of the Case

On March 12, 1991, Henry Curtis Jackson, Jr. was indicted by a grand jury of the Leflore County Circuit Court in connection with the November 1, 1990 stabbing deaths of his four young nieces and nephews and aggravated assaults upon his sister and another niece while he was in search of money kept in a safe in his mother's home near Greenwood, Mississippi.

Jackson’s seven indictments were: four counts of capital murder, two counts of aggravated assault and one count of armed robbery. Under Counts 1 through 4, Jackson was charged with the deaths of two-year-old Shunterica Lonnett Jackson, five-year-old Dominique Devro Jackson, three-year-old Antonio Terrell Jackson and two-year-old Andrew Odutola Kuyoro, Jr. In each count, he was charged with killing while engaged in the commission of the crime of felonious abuse and/or battery of a child. Counts 5 and 6 charged Jackson with the armed robbery of Regina Jackson and with "unlawfully, willfully, feloniously and purposely causing bodily injury to Regina Jackson, a human being, by stabbing said Regina Jackson with a deadly weapon, to wit: a knife." Under Count 7, Jackson likewise was charged with the stabbing of Sarah Denise Jackson. After a change of venue to Copiah County, a jury found him guilty on all counts and sentenced him to death for each of the four capital murder charges; thirty years in the custody of the Mississippi Department of Cor-rections for each of the two counts of aggravated assault; and twenty years in the custody of the MDOC on one count of armed robbery.

Facts of the Case:

Mrs. Jackson and four of her older grandchildren left her home in the Rising Sun community, south of Greenwood, Mississippi, for church at the Sweet Home Church of God in Christ at around 7:00 p.m. on November 1, 1990. Her daughter, Regina Jackson, stayed at home with her two daughters, five-year old Dominique and two-year old Shunterica, and four nieces and nephews, eleven-year old Sarah, three-year old Antonio, two-year old Andrew and one-year old Andrea. While they were watching an hour-long Cosby Show special on television, Regina's older brother, Henry Curtis Jackson, known to the family as "Curtis," knocked on the door and came inside. He asked Regina for a cigarette and then ran to the bathroom, ask-ing her to fix him something for an upset stomach. Sarah recalled that Jackson asked if her Uncles Greg or Johnny were coming over and then put a glove over his hand and wiped clean the knob of the living room door.

When Regina asked Jackson what he wanted, he told her that he had come to get the safe that was kept in Mrs. Jackson's bedroom closet. Regina testified that he really wanted the combination but my niece, Sarah, kept telling him to get the safe and go ahead. He said, naw, cause he came to kill us that Thursday and didn't kill us and he came to kill us that Saturday and he didn't kill us and he said he was going to kill all of us tonight. He then took Regina into a room and tried to open the footlocker where he had been told the combination was kept. At that point, Regina testified, he began stabbing Sarah in the neck and took them into the little boys' room where he told them to let him tie them up. Regina, who had already been stabbed several times, picked up some iron rods that Jackson had brought in from the bathroom and started hitting him with them. He then picked up the baby, Andrea, and used her as a shield. Regina re-linquished the rods and let him tie her up with a belt. He stabbed her again in the neck. While she watched, he picked up her daughter, two-year old Shunterica, by the hair, stabbed her and laid her on one of the beds. Jackson started dragging the safe down the hall, which awakened fiveyear old Dominique. She came down the hall, calling for her mother, at which time, Regina testified, Jackson told her that he loved her, stabbed her and threw her on the floor. He walked over to Regina and again "drilled the knife" in her neck. Regina pretended she was dead until she heard him go into the bathroom and out the window.

In his statement given to police, Jackson stated that he began stabbing Regina in the side while they were arguing. After that, referring to Sarah and the children, he said, "they all was coming at me and I just was stabbing." Elaborating, he stated: After I stabbed Regina, she kept coming and Sarah came in and I couldn't see her from the back. I know I stabbed her back there and they both got in front of me. I don't know if I stabbed her, but I was hitting back. Regina had a rod or something on hand, I guess up to the window or something. I know I seen her reach up to the window and pull something out. Regina was fighting at me with the rod. I . .. Yeah, it was a rod, an iron rod. I was stabbing at her. Sarah was at the back. Her and the other little kids were hollering and --- I guess they thought me and Regina was just into it, at first. She was hitting me with something. I don't know what Sarah had. He had no specific recollec-tion of stabbing the children.

Angelo Maurice Geens, Mrs. Jackson's cousin and neighbor, returned to his home at about 8:30 p.m. that night. Sarah ran to him from the bushes where she had been hiding and told him that Regina and the oth-ers were in the house; her uncle had killed them. Geens carried her into his mother's house and called the police and an ambulance. Deputy Sheriff J.B. Henry and Deputies Tindall, Berdin and Fondren arrived at the scene and discovered the children's bodies. Meanwhile, Jackson had become the subject of an extensive manhunt. While still at the Jackson residence, Deputy Sheriff Tindall received a call from the Highway Patrol regarding a wrecked car in Eupora just fifty yards from the site where the Eupora Police Department had been conducting a routine license check. The 1977 green Monte Carlo bore a license tag registered to Martha Jackson's 1973 brown Ford station wagon. A wallet containing Jackson's identification was found on the front console and his own license tag as well as a long, dark trench coat were found in the trunk of the vehicle.

Jackson had abandoned his car when he saw the roadblock and taken off on foot through the woods. Eluding canine search teams, he jumped a train from Eupora to West Point. On November 5, 1990, he turned himself in to the West Point Police Department. At that time, Jackson gave a statement to Leflore County Sheriff Ricky Banks, who had been summoned to West Point. He stated that, knowing his mother would be at church, he had gone to her house to get the safe because he needed more money to pay his bills. He had brought a kitchen knife with him that was in the car and when he heard someone in the house, went around the back to cut the telephone line. After stabbing Regina and the children, he tried to move the safe and to find a second safe she had mentioned. Noticing lights at the house across the street, he then climbed out the bathroom window and fled to his car, which was parked about two blocks away at Rising Sun High School.

Jackson was arraigned on April 29, 1991. He entered pleas of not guilty on all seven counts of the indict-ment. On August 29, 1991, the circuit court entered an order changing venue to Copiah County and set-ting the trial for September 9, 1991. A jury trial then was held in the Copiah County Circuit Court. The jury found Jackson guilty on all seven counts and sentenced him to death on each of the four capital murder counts.

Execution by Lethal Injection

In 1998, the Mississippi Legislature amended Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51. The manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical para-lytic agent until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice.

Mississippi Death Row Demographics
Youngest on Death Row: Terry Pitchford, MDOC #117778, age 26
Oldest on Death Row: Richard Jordan, MDOC #30990, age 65
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 (March 2, 1977: Thirty-Four Years)

Total Inmates on Death Row = 55
MALE:53
FEMALE: 2
WHITE:23
BLACK: 31
ASIAN: 1

Mississippi State Penitentiary

The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County. In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parch-man Plantation. The Superintendent of the Mississippi State Penitentiary and Deputy Commissioner of Institutions is E.L. Sparkman. There are approximately 868 employees at MSP. MSP is divided into two areas:

AREA WARDEN UNITS Area I - Warden Earnest Lee Unit 29 Area II - Warden Timothy Morris Units 25, 26, 28, 30, 31, and 42 The total bed capacity at MSP is currently 4,648. The smallest unit, Unit 42, houses 56 inmates and is the institution’s hospital. The largest unit, Unit 29, houses 1,561 minimum, medium, close-custody and Death Row inmates.

MSP houses male offenders classified to all custody levels and Long Term Segregation and death row. All male offenders sentenced to death are housed at MSP. All female offenders sentenced to death are housed at the Central Mississippi Correctional Facility in Pearl, Miss. The majority of the farming activity involving Agricultural Enterprises takes place at MSP. Programs offered at MSP include alcohol and drug treatment, adult basic education, inmate legal assistance, pre-release, therapeutic recreation, religious/faith programs and vocational skills training. Mississippi Prison Industries operates a work program at the MSP and utilizes more than 296,400 inmate man-hours in its textile, metal fabrication and wood working shops. On a monthly average, 190 inmates work in these shops.

Lethal injection is the world’s newest method of execution. While the concept of lethal injection was first pro-posed in 1888, it was not until 1977 that Oklahoma became the first state to adopt lethal-injection legislation. Five years later in 1982, Texas performed the first execution by lethal injection. Lethal injection has quickly be-come the most common method of execution in the United States. Thirty-five of thirty-six states that have a death penalty use lethal injection as the primary form of execution. The U.S. federal government and U.S. mili-tary also use lethal injection. According to data from the U.S. Department of Justice, 41 of 42 people executed in the United States in 2007 died by lethal injection.

While lethal injection initially gained popularity as a more humane form of execution, in recent years there has been increasing opposition to lethal injection with opponents arguing that instead of being humane it results in an extremely painful death for the inmate. In September 2007 the United States Supreme Court agreed to hear the case of Baze v. Rees to determine whether or not Kentucky’s three drug-protocol for lethal injections amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United State Constitution. As a result of the Supreme Court’s decision to hear this case, executions in the United States came to a brief halt in late September 2007. On April 16, 2008, the Supreme Court ruled in Baze holding that Kentucky’s three-drug protocol for administering lethal injections does not violate the Eighth Amendment. The result of this ruling was to lift the de facto moratorium on executions in the United States. The State of Georgia became the first state to carry out an execution since the Court’s Baze decision when William Earl Lynd was executed by lethal injection on May 6, 2008.

Chronological Sequence of Events of Execution

48 Hours Prior to Execution The condemned inmate shall be transferred to a holding cell.
24 Hours Prior to Execution Institution is placed in emergency/lockdown status.
1200 Hours Day of Execution Designated media center at institution opens.
1500 Hours Day of Execution Inmate’s attorney of record and chaplain allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed to shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to execution room.
1800 Witnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted with media witnesses.
2030 Hours Day of Execution Designated media center at institution is closed.

Death Row Executions

Since Mississippi joined the Union in 1817, several forms of execution have been used. Hanging was the first form of execution used in Mississippi. The state continued to execute prisoners sentenced to die by hanging until October 11, 1940, when Hilton Fortenberry, convicted of capital murder in Jefferson Davis County, became the first prisoner to be executed in the electric chair. Between 1940 and February 5, 1952, the old oak electric chair was moved from county to county to conduct execu-tions. During the 12-year span, 75 prisoners were executed for offenses punishable by death. In 1954, the gas chamber was installed at the Mississippi State Penitentiary, in Parchman, Miss. It replaced the electric chair, which today is on display at the Mississippi Law Enforcement Training Academy. Gearald A. Gallego became the first prisoner to be executed by lethal gas on March 3, 1955. During the course of the next 34 years, 35 death row inmates were executed in the gas cham-ber. Leo Edwards became the last person to be executed in the gas chamber at the Mississippi State Penitentiary on June 21, 1989.

On July 1, 1984, the Mississippi Legislature partially amended lethal gas as the state’s form of execu-tion in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who com-mitted capital punishment crimes after the effective date of the new law and who were subsequently sentenced to death thereafter would be executed by lethal injection. On March 18, 1998, the Mississippi Legislature amended the manner of execution by removing the provision lethal gas as a form of execution.

Mississippi State Penitentiary in Parchman, Mississippi

The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County. In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parch-man Plantation. The Superintendent of the Mississippi State Penitentiary and Deputy Commissioner of Institutions is E.L. Sparkman. There are approximately 868 employees at MSP.

MSP is divided into two areas: AREA WARDEN UNITS - Area I - Warden Earnest Lee Unit 29, Area II - Warden Timothy Morris Units 25, 26, 28, 30, 31, and 42. The total bed capacity at MSP is currently 4,648. The smallest unit, Unit 42, houses 56 inmates and is the institution’s hospital. The largest unit, Unit 29, houses 1,561 minimum, medium, close-custody and Death Row inmates. MSP houses male offenders classified to all custody levels and Long Term Segregation and death row.

All male offenders sentenced to death are housed at MSP. All female offenders sentenced to death are housed at the Central Mississippi Correctional Facility in Pearl, Miss. The majority of the farming activity involving Agricultural Enterprises takes place at MSP. Programs offered at MSP include alcohol and drug treatment, adult basic education, inmate legal assistance, pre-release, therapeutic recreation, religious/faith programs and vocational skills training.

Mississippi Prison Industries operates a work program at the MSP and utilizes more than 296,400 inmate man-hours in its textile, metal fabrication and wood working shops. On a monthly average, 190 inmates work in these shops.

Death Row Executions

Since Mississippi joined the Union in 1817, several forms of execution have been used. Hanging was the first form of execution used in Mississippi. The state continued to execute prisoners sentenced to die by hanging until October 11, 1940, when Hilton Fortenberry, convicted of capital murder in Jefferson Davis County, became the first prisoner to be executed in the electric chair. Between 1940 and February 5, 1952, the old oak electric chair was moved from county to county to conduct execu-tions. During the 12-year span, 75 prisoners were executed for offenses punishable by death.

In 1954, the gas chamber was installed at the Mississippi State Penitentiary, in Parchman, Miss. It replaced the electric chair, which today is on display at the Mississippi Law Enforcement Training Academy. Gearald A. Gallego became the first prisoner to be executed by lethal gas on March 3, 1955. During the course of the next 34 years, 35 death row inmates were executed in the gas cham-ber. Leo Edwards became the last person to be executed in the gas chamber at the Mississippi State Penitentiary on June 21, 1989.

On July 1, 1984, the Mississippi Legislature partially amended lethal gas as the state’s form of execu-tion in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who com-mitted capital punishment crimes after the effective date of the new law and who were subsequently sentenced to death thereafter would be executed by lethal injection. On March 18, 1998, the Mississippi Legislature amended the manner of execution by removing the provision lethal gas as a form of execution.

INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER
Name Race-Sex Offense Date Executed

Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89

PRISONERS EXECUTED BY LETHAL INJECTION
Name Race-Sex Offense Date Executed

Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
John B. Nixon, Sr. White Male Murder 12-14-05
Bobby G. Wilcher White Male Murder 10-18-06
Earl W. Berry White Male Murder 05-21-08
Dale L. Bishop White Male Murder 07-23-08
Paul E. Woodward White Male Murder 05-19-10
Gerald J. Holland White Male Murder 05-20-10
Joseph D. Burns White Male Murder 05-20-10
Benny Joe Stevens White Male Murder 05-10-11
Rodney Gray Black Male Murder 05-17-11
Edwin Hart Turner White Male 02-08-12
Larry M. Puckett White Male 02/20/12
William J. Mitchell Black Male 03/22/12

Source: Mississippi Department of Corrections, Mississippi State Penitentiary

Reuters News

"Mississippi man to be executed for killing four children," by Emily Le Coz. (Tue Jun 5, 2012 4:34pm EDT)

(Reuters) - Mississippi is scheduled to execute a man on Tuesday for the 1990 murders of four of his young nieces and nephews, and family members said their pleas for a reprieve have not swayed the state's governor. Henry Curtis Jackson Jr, 47, fatally stabbed two nieces and two nephews - aged 2 to 5 years - while he searched for money to steal from a safe kept in his mother's home near Greenwood, authorities said.

Regina Jackson - his sister and the mother of two of his victims - said she and other family members asked Mississippi's Republican Governor Phil Bryant on Monday to halt the execution. But she said the governor had already made up his mind to let the lethal injection proceed and informed the family of his decision Tuesday morning. "We went before the governor to plead for my brother's life," Regina Jackson said. "They're doing the same thing he did. Executing him won't bring closure. It will bring more pain on my family." "I forgave my brother. I love my brother," she said. "God says we got to forgive in order for Him to forgive us."

The governor's office said a meeting with the death row inmate's family took place, but a spokeswoman could not immediately confirm Bryant's decision on Tuesday. In Mississippi, the governor has the sole authority to grant clemency and also can commute death sentences to life in prison. Jackson, called "Curtis" by his family, is to be put to death by lethal injection at 6 p.m. CDT (2300 GMT) at the Mississippi State Penitentiary in Parchman. He would be the fourth person executed this year in the state and the 19th person executed in the nation. "We're under no illusions that Curtis is going to be set free or anything, other than life without parole. The only thing we're asking for is his life," said Jackson's attorney, Robert "Chip" Davis.

Jackson fled after the murders, prompting an extensive manhunt that ended when he turned himself in to police four days later. He admitted to the crimes but said he had no specific memory of stabbing the children, according to the Mississippi Department of Corrections. Two other relatives survived after being stabbed in the November 1, 1990, attack. Regina Jackson said she was stabbed 15 times. Curtis Jackson was convicted in 1991 of four counts of capital murder, two counts of aggravated assault and one count of armed robbery.

Mississippi Public Broadcasting

Mississippi has executed its fourth death row inmate of the year. MPB’s Jeffrey Hess reports the state executed Henry Curtis Jackson who was convicted of the stabbing four of his nephews and nieces to death in 1990.

"So I stand before you today and say, God is love. And I love my brother Curtis because of who he was not because of the man he became that night," That’s Regina Jackson following the execution of her brother 47-year old Henry Curtis Jackson Tuesday night. Jackson was the mother of two of the children stabbed to death and also survived five stabs wounds to her neck. In the days leading up to the execution, she asked the Governor to stay the execution and give her brother a life without parole sentence. "I believe in being punished but not the death penalty. God said in his word to forgive each other. And if we don't forgive each other than god cannot forgive us. So let us come together as a nation with love towards sisters and brothers," Jackson said.

Jackson appeared to accept his execution calmly, having confessed to the murders of the children…all under 5 years old…earlier in the day Strapped to the gurney, Jackson kept his eyes closed in the minutes before his death; his breathing slow and steady. When asked if he has any final words he only replied ‘no, I do not’….his eyes remained closed He took three deep shuttering breaths as the lethal injection chemicals entered his body…he was declared dead at 6:13 p.m.

Corrections Commissioner Chris Epps says Jackson was solemn throughout the day, accepting responsibility for the crime. "Finally I just went on and asked him did drugs have anything to do with his crime. And he said 'I am not going to blame it on drugs'. He said he went there to do one thing. And I did another. And he admitted that he did commit the crime," Epps said.

This is the fourth execution of the year. The fifth execution is set for next week for death row inmate Jan Michael Brawner.

ProDeathPenalty.Com

The Silent Voices of Mississippi

Jackson v. State, 684 So.2d 1213 (Miss. 1996). (Direct Appeal)

Defendant was convicted in the Circuit Court, Leflore County, Gary Evans, J., of capital murder, aggravated assault, and armed robbery, and was sentenced to death. Defendant appealed. The Supreme Court, superseding its prior opinion, 672 So.2d 468, McRae, J., held that: (1) transferring case to county with smaller percentage of minority population did not violate equal protection; (2) defendant was not entitled to continuance for evaluation by another psychiatrist or psychologist; (3) voir dire questioning about death penalty attitudes was adequate; (4) no gender-based discrimination occurred during jury selection; (5) lesser included offense instruction on heat of passion killing was not required; (6) circumstantial evidence instruction was adequate; (7) photographs of victims' bodies prior to autopsy were admissible during sentencing phase; (8) parole eligibility was not proper sentencing phase consideration; (9) aggravating circumstance for creating great risk of death to many persons applied; (10) underlying felony and prior violent felony were aggravating circumstances; (11) mercy instructions were not required; and (12) death sentence was not disproportionate. Affirmed. Banks, J., concurred in result only.

En Banc. McRAE, Justice, for the Court:

Henry Curtis Jackson, Jr. was indicted by a grand jury of the Leflore County Circuit Court in connection with the November 1, 1990 stabbing deaths of his four young nieces and nephews and aggravated assaults upon his sister and another niece while he was in search of money kept in a safe in his mother's home near Greenwood, Mississippi. After a change of venue to Copiah County, a jury found him guilty on all counts and sentenced him to death for each of the four capital murder charges; thirty years in the custody of the Mississippi Department of Corrections for each of the two counts of aggravated assault; and twenty years in the custody of the MDOC on one count of armed robbery. FN1 Appealing the capital murder convictions, Jackson raises thirty-eight assignments of error arising from both the guilt and sentencing phases of his trial. Finding, at best, harmless error, we affirm his convictions and sentences.

FN1. For reasons not enumerated in the record, Jackson was not charged with the stabbing of one-year old Andrea Jackson, who sustained a paralyzing stab wound to her spinal cord during the melee.

I.

Mrs. Jackson and four of her older grandchildren left her home in the Rising Sun community, south of Greenwood, Mississippi, for church at the Sweet Home Church of God in Christ at around 7:00 p.m. on November 1, 1990. Her daughter, Regina Jackson, stayed at home with her two daughters, five-year old Dominique and two-year old Shunterica, and four nieces and nephews, eleven-year old Sarah, three-year old Antonio, two-year old Andrew and one-year old Andrea. While they were watching an hour-long Cosby Show special on television, Regina's older brother, Henry Curtis Jackson, known to the family as “Curtis,” knocked on the door and came inside. He asked Regina for a cigarette and then ran to the bathroom, asking her to fix him something for an upset stomach. Sarah recalled that Jackson asked if her Uncles Greg or Johnny were coming over and then put a glove over his hand and wiped clean the knob of the living room door.

Jackson then asked Regina to check the telephone and she discovered it was dead. Together with Antonio, she left for a neighbor's house. Jackson directed Sarah to call her back. He then caught Regina from behind, with one hand around her neck and one around her stomach. He asked her if she had gotten her check and told her that “he wanted twenty dollars for some ass.” When she said she didn't have the money, he pulled a knife out and pushed “one in my chin and one in my stomach.” Regina yelled for Sarah, who came running and jumped on Jackson's back. The three struggled and then began to talk. Regina testified: We said, “Curtis, we love you. Why do you want to do us like this. Don't kill us, Curtis.” He just went on and was talking about what he wanted to do. He told me, he said, “Regina, I love you but I have got to kill you.” When Regina asked Jackson what he wanted, he told her that he had come to get the safe that was kept in Mrs. Jackson's bedroom closet. The safe contained cash, jewelry and a certificate of deposit belonging to Mrs. Jackson and her son, Eddie Self. She testified that only Self's daughter, Tara, and Mrs. Jackson knew the combination to the safe. She further stated: He really wanted the combination but my niece, Sarah, kept telling him to get the safe and go ahead. He said, naw, cause he came to kill us that Thursday and didn't kill us and he came to kill us that Saturday and he didn't kill us and he said he was going to kill all of us tonight.

He then took Regina into Tara's room and tried to open the footlocker where he had been told the combination was kept. At that point, Regina testified, he began stabbing Sarah in the neck and took them into the little boys' room where he told them to let him tie them up. Regina, who had already been stabbed several times, picked up some iron rods that Jackson had brought in from the bathroom and started hitting him with them. He then picked up the baby, Andrea, and used her as a shield. Regina relinquished the rods and let him tie her up with a belt. He stabbed her again in the neck. While she watched, he picked up her daughter, two-year old Shunterica, by the hair, stabbed her and laid her on one of the beds. Jackson started dragging the safe down the hall, which awakened five-year old Dominique. She came down the hall, calling for her mother, at which time, Regina testified, Jackson told her that he loved her, stabbed her and threw her on the floor. He walked over to Regina and again “drilled the knife” in her neck. Regina pretended she was dead until she heard him go into the bathroom and out the window.

Sarah recalls responding to Regina's cries for help, finding her in the boys' bedroom with Jackson sticking one knife at her chin and the other at her waist. Referring to the stab wounds in Regina's neck, Sarah testified that she “had some meat hanging from her chin.” Sarah jumped on Jackson's back in an attempt to stop him. Regina then tried to hit Jackson with an iron rod he had brought in from the bathroom. At that point, Sarah testified, Regina told her that Jackson had stabbed Shunterica. Sarah tried to comfort her baby sister, Andrea, and told Antonio to run for help. Jackson called the child back. Regina, by this time, had fainted and Jackson was trying to wake her up. Once he had done that, he grabbed Sarah again and began stabbing her in the neck. After the knife broke off in her neck, he ran to the kitchen, retrieved another knife, stabbed her again and threw her on a bed. Sarah, too, pretended she was dead. She heard her brother, Antonio, yelling for help and saw Jackson kneeling over him. While Sarah did not actually see Jackson stabbing him, she testified that “... I saw his hand moving when he was over him. I didn't see but I knew he was doing something cause my little brother was hollering.” She likewise did not witness the stabbing of Andrew, but when she saw him, “[h]e was on the bottom of the bed and his eyes were bulging and his mouth was wide open.”

In his statement given to police, Jackson stated that he began stabbing Regina in the side while they were arguing. After that, referring to Sarah and the children, he said, “they all was coming at me and I just was stabbing.” Elaborating, he stated: After I stabbed Regina, she kept coming and Sarah came in and I couldn't see her from the back. I know I stabbed her back there and they both got in front of me. I don't know if I stabbed her, but I was hitting back. Regina had a rod or something on hand, I guess up to the window or something. I know I seen her reach up to the window and pull something out. Regina was fighting at me with the rod. I ... Yeah, it was a rod, an iron rod. I was stabbing at her. Sarah was at the back. Her and the other little kids were hollering and --- I guess they thought me and Regina was just into it, at first. She was hitting me with something. I don't know what Sarah had. He had no specific recollection of stabbing the children.

Angelo Maurice Geens, Mrs. Jackson's cousin and neighbor, returned to his home at about 8:30 p.m. that night. Sarah ran to him from the bushes where she had been hiding and told him that Regina and the others were in the house; her uncle had killed them. Geens carried her into his mother's house and called the police and an ambulance. Deputy Sheriff J.B. Henry and Deputies Tindall, Berdin and Fondren arrived at the scene and discovered the children's bodies. Sarah Jackson underwent surgery for five potentially serious stab wounds to her abdomen, chest and neck, including a lacerated windpipe. Regina suffered five serious stab wounds to her neck. Baby Andrea suffered a single penetrating stab wound to her neck which caused a tracheal injury and profoundly damaged her spinal cord. As a result, she is unable to walk and has no fine motor control in her arms.

Leflore County Coroner James R. Hankins pronounced the four children dead at the scene. The bodies were sent to the Deputy State Medical Examiner for forensic pathology examinations. Dr. Steven Hayne, who performed autopsies on the children, testified that Shunterica suffered three stab wounds to the neck and two shoulder abrasions. Her jugular vein was severed, leading Dr. Hayne to opine that she ultimately bled to death. Andrew sustained three stab wounds to the neck. The first cut through the carotid artery and the jugular vein. Another missed the trachea, but went into his backbone and severed the spinal cord. Dr. Hayne opined that such an injury “would require a considerable amount of strength” and noted the presence of a pinpoint hemorrhage caused by force on the child's neck. Dominique, too, died of multiple stab wounds to the neck. Three of the four stab wounds cut her jugular vein and trachea. Antonio suffered four stab wounds and two slash wounds. His trachea was cut and Dr. Hayne determined that he died as a result of a chest wound which cut through his heart.

Meanwhile, Jackson had become the subject of an extensive manhunt. While still at the Jackson residence, Deputy Sheriff Tindall received a call from the Highway Patrol regarding a wrecked car in Eupora just fifty yards from the site where the Eupora Police Department had been conducting a routine license check. The 1977 green Monte Carlo bore a license tag registered to Martha Jackson's 1973 brown Ford station wagon. A wallet containing Jackson's identification was found on the front console and his own license tag as well as a long, dark trench coat were found in the trunk of the vehicle. Jackson had abandoned his car when he saw the roadblock and taken off on foot through the woods. Eluding canine search teams, he jumped a train from Eupora to West Point. On Monday morning, November 5, 1990, he turned himself in to the West Point Police Department. At that time, Jackson gave a statement to Leflore County Sheriff Ricky Banks, who had been summoned to West Point. He stated that, knowing his mother would be at church, he had gone to her house to get the safe because he needed more money to pay his bills. He had brought a kitchen knife with him that was in the car and when he heard someone in the house, went around the back to cut the telephone line. After stabbing Regina and the children, he tried to move the safe and to find a second safe she had mentioned. Noticing lights at the house across the street, he then climbed out the bathroom window and fled to his car, which was parked about two blocks away at Rising Sun High School.

On March 12, 1991, Jackson was indicted on four counts of capital murder, two counts of aggravated assault and one count of armed robbery by a grand jury of the Leflore County Circuit Court. Under Counts 1 through 4, Jackson was charged with the deaths of two-year-old Shunterica Lonnett Jackson, five-year-old Dominique Devro Jackson, three-year-old Antonio Terrell Jackson and two-year-old Andrew Odutola Kuyoro, Jr. In each count, he was charged with killing while said Henry Curtis Jackson, Jr. was engaged in the commission of the crime of felonious abuse and/or battery of a child ... in violation of Section 97-5-39(2), Mississippi Code Annotated of 1972, as amended, or in any attempt to commit such felony; in violation of Section 97-3-19(2), Mississippi Code Annotated of 1972, as amended; Counts 5 and 6 charged Jackson with the armed robbery of Regina Jackson and with “unlawfully, wilfully, feloniously and purposely caus[ing] bodily injury to Regina Jackson, a human being, by stabbing said Regina Jackson with a deadly weapon, to wit: a knife.” Under Count 7, he likewise was charged with the stabbing of Sarah Denise Jackson.

Jackson was arraigned on April 29, 1991. He entered pleas of not guilty on all seven counts of the indictment. Trial was set for August 26, 1991 in the Leflore County Circuit Court. During voir dire, Jackson's attorney and the circuit court questioned the jurors regarding their exposure to the extensive media coverage of the murders, especially during the days immediately before the trial, and its influence upon them. Based on the responses received, the circuit court advised Jackson's attorney that if he sought a change of venue, it would be considered. On August 29, 1991, the circuit court entered an order changing venue to Copiah County and setting the trial for September 9, 1991. A jury trial then was held in the Copiah County Circuit Court. The jury found Jackson guilty on all seven counts and sentenced him to death on each of the four capital murder counts.

On September 14, 1991, the circuit court signed an order sentencing Jackson to death by lethal injection on November 6, 1991 for each of the four counts of capital murder; thirty years in the custody of the Mississippi Department of Corrections for one count of armed robbery and twenty years each for the two counts of aggravated assault, with the latter three sentences to run consecutively. It was filed along with the September 14, 1991 J & V of Guilty on October 8, 1989. Jackson's motion to stay execution of the death sentences pending appeal was granted by the circuit court on October 19, 1991. The circuit court granted Jackson's Motion to Allow Filing of Post-trial Motions After Preparation of Transcript. Jackson, however, filed no post-trial motions, accepted the convictions and orders of the circuit court as final and filed his notice of appeal on November 18, 1991 in the Copiah County Circuit Court.FN2 Although Jackson did not file any post-trial motions, Miss.Code Ann. § 99-19-105(1)(1994) provides that “[w]henever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Mississippi Supreme Court.”

ISSUES COMMON TO BOTH GUILT AND SENTENCING PHASES
I. WHETHER THE COURT ERRED IN MOVING JACKSON'S CASE FROM LEFLORE TO COPIAH COUNTY IN VIOLATION OF THE EQUAL PROTECTION CLAUSES OF THE U.S. AND MISSISSIPPI CONSTITUTIONS

After a jury was seated in Leflore County on August 26, 1991, Jackson's attorney sought a change of venue on grounds that pre-trial publicity surrounding the case might affect the fairness and impartiality of the jury. His motion, seeking transfer to a county with racial demographics similar to those in Leflore County, was granted and the proceedings were moved to Copiah County. He now complains that his equal protection rights were violated because Copiah County has a non-white population of fifty-one percent (51%), whereas the minority population in Leflore County is sixty-one percent (61%). “The accused has a right to a change of venue when it is doubtful that an impartial jury can be obtained; such doubt is implicit when there is strong public sentiment against the defendant.” Johnson v. State, 476 So.2d 1195, 1210-11 (Miss.1985). In Simon v. State, 633 So.2d 407, 412 (Miss.1993), however, we rejected an appellant's claim that he was entitled to a trial in a county with precisely the same racial demographics as that in which his trial was initially set, noting that he had failed to make “a prima facie case that he was denied a trial by an impartial jury representing a fair cross-section of the community.” Likewise, Jackson argues only that the demographics were not identical and has made no effort to establish a prima facie case that the jury did not represent a fair cross-section of the community from which it was selected. Lanier v. State, 533 So.2d 473, 477 (Miss.1988)(to show prima facie violation of the fair cross-section requirement, defendant must prove: exclusion of “distinctive” group; representation of this group neither fair nor reasonable in relation to community population; under-representation due to “systematic exclusion of the group in the jury-selection process.”). See also, Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84, 86 (1940)(“[a]lthough a defendant has no right to a jury of any particular racial composition, we have long held that the State cannot act so as to deprive a defendant of his right to a venire that is ‘truly representative of the community’ ”). Jackson has not shown that he was deprived of a jury that was representative of the community. Indeed, the record does not even indicate the racial composition of the jury as seated. Accordingly, we find no merit to his argument.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING JACKSON'S MOTION FOR A CONTINUANCE

Jackson asserts that the circuit court's refusal to grant his motion for a continuance made it impossible for him to obtain an adequate psychiatric evaluation by a psychologist or psychiatrist of his choice and to sufficiently prepare his defense. As his only meaningful authority, he cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), wherein the United States Supreme Court refused to acknowledge that an indigent defendant has a constitutional right to a psychologist or psychiatrist of his choosing or for funds to pay for such even where he has demonstrated that his sanity is at issue. Ake, 470 U.S. at 83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66. Jackson's reliance on Ake avails him nothing and we find that he had more than adequate time in which to secure a thorough evaluation by his psychiatrist of choice, Dr. Timothy Summers.

Whether a continuance should be granted or denied is within the sound discretion of the trial court. Johnson v. State, 631 So.2d 185, 189 (Miss.1994); Wallace v. State, 607 So.2d 1184, 1190 (Miss.1992); Morris v. State, 595 So.2d 840, 844 (Miss.1991). Only when manifest injustice appears to have resulted from the decision to deny the continuance should this Court reverse on that basis. Johnson, 631 So.2d at 189; Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993). To determine whether such manifest injustice has resulted from the circuit court's refusal to grant Jackson's motion for a continuance, we turn to the chronology of events surrounding his efforts to secure an evaluation by a psychiatrist of his choice. On April 10, 1991, the State filed a Motion for Mental Examination to determine whether Jackson was competent to stand trial as well as whether he was sane at the time of the crime. From the transcript of the April 12, 1991 motions hearing, it appears that Jackson, too, had filed such a motion. The record, however, contains no such motion. At the April 29, 1991 motion hearing, the circuit judge stated that he would enter an order naming the Court's psychiatrist and psychologist to examine Jackson for limited purposes. On June 10, 1991, the circuit court issued an order requesting that both parties submit requests for special tests and areas of exploration they sought from a court-appointed psychologist or psychiatrist. An order for examination by Dr. Robert McKinley, a psychiatrist, and Dr. Michael Whalen, a psychologist, was then entered on June 19, 1991. Nevertheless, Jackson's first apparent objection to Drs. McKinley and Whelan only arose in his Motion to Proceed Ex Parte, filed on August 21, 1991, five days before the original trial date. Jackson's attorney indicated at that time that he had wanted to retain the services of a Dr. Kallman, whom, he maintained, “could assist in an advocacy role.”

At proceedings in chambers on August 26, 1991, the first day of the originally scheduled trial in Leflore County, Jackson's attorney indicated that he had not been able to retain Dr. Kallman or any of the other psychiatrists or psychologists of his choice. Contrary to the wishes of his client, he asked for a continuance. Later in those proceedings, Walls indicated that he had not yet had an opportunity to develop an insanity defense. The State noted that despite its requests for a notice of insanity defense, none had been forthcoming. On September 10, 1991, before the transferred trial in Copiah County, Jackson's attorney again sought a continuance. The State, objecting, pointed out that it had been asking the defense about a notice of insanity defense since April 24. Walls then stated that he had filed a notice the Friday before trial, without knowing what the results of Dr. Summers' evaluation would be. The circuit court then overruled the motion for a continuance. Jackson's insanity defense was then withdrawn before the proffer of Dr. Summers' testimony in the guilt phase of the trial. In refusing to admit Dr. Summers' testimony at that time, the circuit court indicated that its decision was based on the content of his testimony, not because of the abandonment of the insanity defense. Given the five-month time frame in which Jackson's attorney could have filed a notice of insanity defense, voiced his objections to the evaluations by the court-appointed doctors or taken other measures to secure evaluations by psychiatrists or psychologists of his choice, and the fact that he found it necessary to withdraw the insanity defense after obtaining Dr. Summers' evaluation, we cannot say that manifest injustice resulted from the refusal to grant the continuance.

III. WHETHER THE CIRCUIT COURT FAILED TO CONDUCT AND PREVENTED DEFENSE COUNSEL FROM CONDUCTING ADEQUATE VOIR DIRE OF VENIRE MEMBERS

Jackson next attacks the adequacy of the circuit court's questioning of jurors' attitudes toward the death penalty during voir dire. He contends that six black venire members were improperly dismissed before they could be questioned adequately by the defense and that there was a risk that others served who otherwise properly might have been excluded had he been allowed to question them more thoroughly. Witherspoon v. Illinois, 391 U.S. 510, 88. S.Ct. 1770, 20 L.Ed.2d 776 (1968) provides that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 784-785. Further, in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the United States Supreme Court stated that the Witherspoon principles “demand inquiry into whether the views of prospective jurors on the death penalty would disqualify them from sitting.” Morgan, 504 U.S. at 731, 112 S.Ct. at 2231, 119 L.Ed.2d at 504. The standard to be followed is “whether the juror's views ‘would prevent or substantially impair the performance of his duties in accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 433, 105 S.Ct. 844, 857, 83 L.Ed.2d 841, 857 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). In Wainwright, the Supreme Court further explained: this standard likewise does not require that a juror's bias be proved with ‘unmistakable clarity.’ This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where there bias has been made ‘unmistakably clear’; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. [footnote omitted]. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. For reasons that will be developed more fully infra, this is why deference must be paid to the trial judge who sees and hears the juror. Wainwright, 469 U.S. at 424-26, 105 S.Ct. at 852-53, 83 L.Ed.2d at 852-853. The standards articulated in Wainwright were adopted by this Court in Fuselier v. State, 468 So.2d 45, 53 (Miss.1985).

In Hansen v. State, 592 So.2d 114 (Miss.1991), we reiterated the importance of fully developing jurors' views toward the death penalty, stating “[w]e have directed that, notwithstanding a prospective juror's scruples, the court should inquire further whether the juror would follow its instructions and a fair verdict render according to the law and the evidence.” Id. at 128. See also, Fuselier, 468 So.2d at 53-55. Further, while the circuit court is expected to take the lead in conducting the Witherspoon voir dire in death penalty cases, this does not mean that counsel does not also have a role. Hansen, 592 So.2d at 128-129. Thus, in Hansen, where the circuit court expressly refused to allow the defendant's attorney to voir dire two venire members who had expressed opposition to the death penalty, we stated: There appears no escape from the fact that the Circuit Court erred when it denied counsel's request for voir dire examinations of jurors Hulitt and Nichols. [citations omitted]. On the other hand, the answers these two jurors gave are substantially clear, and it appears reasonably certain that each was Witherspoon-excludable. As we may do, we afford a measure of deference on this point to the court that saw and heard the jurors. Wainwright v. Witt, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at 853; Woodward v. State, 533 So.2d 418, 424 (Miss.1988). Speculating, but with the aid of a touch of common sense, we regard the likelihood that voir dire examination by defense counsel would have rehabilitated these jurors to bring them out of Witherspoon is, on this record, rather slim. We hold the error harmless beyond a reasonable doubt and that, as such, it does not require reversal. Hansen, 592 So.2d at 129.

Our examination of the record indicates only that the circuit court declined to allow Jackson's attorney to repeat questions in his own words to the prospective jurors during the court's voir dire. The circuit judge, however, did attempt to rephrase his questions as requested by the defense. Further, Jackson's attorney did not request permission to further question the jurors; he objected only to their dismissal. Even assuming arguendo that the circuit court erred in not allowing the defense to rephrase and pose the questions to the jury, a common sense interpretation of the record, as urged by Wainwright and Hansen, does not indicate that further questioning would have rehabilitated the six venire members who expressed their opposition to the death penalty. Moreover, Jackson's attorney conducted his own extensive voir dire of the remaining venire members regarding the death penalty, refuting his contention that there existed a risk of seating jurors who might have been unduly biased in favor of the death penalty. We find no error here. Jackson further argues that the circuit court erred in refusing to allow him to question individually a venire member who was a justice court judge running for reelection. However, he cites no authority and presents no meaningful argument to support this assignment of error. Accordingly, we do not consider it. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992).

IV. and V. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING JACKSON'S BATSON CHALLENGES AND IN FAILING TO REQUIRE NON-DISCRIMINATORY REASONS FOR THE GENDER-BASED EXCLUSION

Jackson next raises a multi-part assault upon the prosecutor's use of eight peremptory challenges against black venire members, contending that the strikes were made in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).FN3 He asserts that a) the circuit court's inability to retrieve questionnaires completed by all of the 165 potential jurors amounts to a failure to preserve the record sufficiently to protect his fourteenth amendment rights; b) the prosecutor's reasons for striking several jurors were insufficient to rebut the prima facie presumption of Batson; c) her reasons for striking other prospective jurors were inherently suspect; d) the reasons offered were inadequately developed on voir dire; e) the reasons offered were based on characteristics shared by white venire members not challenged by the prosecution; f) the circuit court failed to require legitimate nondiscriminatory justification for the prosecutor's peremptory strikes; g) the judge applied an incorrect standard of law in ruling on whether the prosecutor's challenges were race-neutral; and h) the defense was not given adequate opportunity to rebut the prosecutor's challenges. FN3. The prosecution struck three white jurors as well. All twelve of the defense's peremptory strikes were against white venire members. The record, however, does not reflect the racial composition of the jury as seated. The race of prospective jurors is not indicated on questionnaires, which were designed by the defense and completed prior to trial, and is noted only where specifically requested by the defendant in several instances during the jury selection process, when those individuals were struck from the venire by either party. In Hansen v. State, 592 So.2d 114 (Miss.1991), where the record likewise did not indicate the race of the jurors, this Court rejected the appellant's Batson challenges, noting that it “ ‘must decide each case by the facts shown in the record, not assertions in the brief ...’ ” Hansen, 592 So.2d at 127, citing Burney v. State, 515 So.2d 1154, 1160 (Miss.1987), and further that, the burden is on the appellant to make sure that the record contains “ ‘sufficient evidence to support his assignments of error on appeal.’ ” Id.

For the first time on appeal, Jackson further asserts that the State used eight of its peremptory challenges to remove women from the jury without offering a non-gender based justification for so doing. The assignment of error is procedurally barred by his failure to make a timely objection at trial. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992); Fleming v. State, 604 So.2d 280, 292 (Miss.1992). Even looking at the merits of the issue, we note that in Duplantis v. State, 644 So.2d 1235 (Miss.1994), we made a point of bringing to the trial courts' attention the United States Supreme Court's decision in J.E.B v. Alabama, 511 U.S. 127, 145-46, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89, 107 (1994), which extended Batson to gender-based exclusion of jurors. The J.E.B. decision explained that Failing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination. [footnote omitted] Allowing parties to remove racial minorities from the jury not because of their race, but because of their gender, contravenes well-established equal protection principles and could insulate effectively racial discrimination from judicial scrutiny. 511 U.S. at 145, 114 S.Ct. at 1430, 128 L.Ed.2d at 107. In applying its decision, the Court instructed that “[a]s with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike.” J.E.B., 511 U.S. at 144-45, 114 S.Ct. at 1429, 128 L.Ed.2d at 106-107. Referencing Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), the Court further held that “[w]hen an explanation is required, it need not rise to the level of a ‘for cause’ challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual.” J.E.B., 511 U.S. at 144, 114 S.Ct. at 1430, 128 L.Ed.2d at 107.

Jackson, however, has failed totally to make a prima facie case of gender-based discrimination in the selection of his jury. To the contrary, our review of the record indicates that ten of the fourteen jurors and alternates were women! Accordingly, even notwithstanding the procedural bar, there is no merit to his argument.

VI. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING A WITNESS FOR THE PROSECUTION TO REMAIN IN THE COURTROOM DURING TRIAL PROCEEDINGS

Jackson contends that the presence of Sheriff Ricky Banks, a witness for the State, in the courtroom throughout the proceedings violated the rule of sequestration and warrants reversal of his convictions and sentences. The record indicates that Sheriff Banks left the courtroom during the testimony of investigating officer, Leflore County Chief Deputy Sheriff Jimmy Tindall, but that he was present during the testimony of Eddie Self, whose testimony, Jackson asserts, he was then called to rebut. Rule 615 of the Mississippi Rules of Evidence authorizes exclusion of witnesses from the courtroom to keep them from hearing testimony of other witnesses except for “(1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.” Miss. R. Evid. 615 (emphasis added). While Jackson asserts that the State made no request for the sheriff to be designated as its representative, the record shows that such request was, indeed, made by the State and granted by the circuit court. The State, therefore, contends that because Sheriff Banks was so designated, there is no merit to Jackson's argument. The Comment to Rule 615 notes that in each instance of exclusion, the person's presence must be “ ‘shown by a party to be essential to the presentation of his case.’ ” Addressing the specific application of the Rule to sheriffs, we have held:

The sheriff was not exempted from the Rule simply by virtue of his being the Sheriff, unless, under category (2) of the Rule's exceptions, the Sheriff is designated by the District Attorney as the state's representative because as the chief investigating officer in the case, his presence in the courtroom is necessary to assist the prosecution at trial. Douglas v. State, 525 So.2d 1312, 1316-1317 (Miss.1988)(emphasis added). See also, Russell v. State, 607 So.2d 1107, 1113 (Miss.1992)(quoting Douglas to find that presence of chief investigator at counsel table in capital murder case did not inject sympathy into the jury's decision). The State made no showing that Banks was the chief investigating officer in this case or that his presence was “necessary to assist the prosecution at trial.” The prosecutor merely stated, “I just feel for security purposes the Sheriff should be allowed to remain.”

It appears to us that the State was attempting to circumvent the sequestration rule when it made the apparently impromptu decision to designate Sheriff Banks as its representative after Jackson raised an objection to his presence in the courtroom at the beginning of voir dire. However, in determining whether the circuit court abused its discretion in allowing him to testify, we have stated: We note that the majority of federal appellate courts have stated the test thus: failure of a judge to order a mistrial or to exclude testimony will not justify reversal on appeal absent a showing of prejudice sufficient to constitute abuse of discretion. U.S. v. Lassiter, 819 F.2d 84, 87 (5th Cir.1987); U.S. v. Buchanan, 787 F.2d 477, 485 (10th Cir.1986); U.S. v. Ortega-Chavez, 682 F.2d 1086, 1089 (5th Cir.1982); U.S. v. Warren, 578 F.2d 1058, 1076 (5th Cir.1978). Such a test is consistent with our unflagging support of the trial court's power to control the progress of a trial. Douglas, 525 So.2d at 1318. We will not “ per se reverse a trial court for failing to order a mistrial after a witness exclusion rule violation. The resultant degree of prejudice to the defendant must first demonstrate that the trial court abused its discretion.” Baine v. State, 606 So.2d 1076, 1083 (Miss.1992). See also, Gerrard v. State, 619 So.2d 212, 217 (Miss.1993).

While we find that the reasons for allowing Sheriff Banks to remain in the courtroom to be less than compelling, Jackson has failed to demonstrate any prejudice resulting from the sheriff's presence or his testimony. Banks' “rebuttal” of Self's testimony was limited to two questions which recounted his questioning of Self regarding the contents of the safe. Jackson's only objection to the testimony at trial was that it was hearsay. Chief Deputy Sheriff Tindall, whose testimony Sheriff Banks was not present for, recounted precisely the same details of the conversation the two had had with Self when opening the safe. Again, Jackson objected only on grounds of hearsay. We condone neither the State's efforts to thwart the purposes of the rule of sequestration nor the practice of allowing in the courtroom throughout the trial law enforcement officers who will be testifying in a case. However, there being no prejudice to Jackson in this particular case, we find that any error was harmless.

VIII. WHETHER THE SUBSTANCE AND NATURE OF THE PROSECUTOR'S COMMENTS AND ARGUMENTS VIOLATED JACKSON'S RIGHTS, MISINFORMED AND MISDIRECTED JURORS ON THE LAW AND THE FACTS, AND DEPRIVED HIM OF A FAIR TRIAL

Jackson contends that various comments made by the prosecution during opening and closing arguments, as well as while examining witnesses, were improper and mandate the reversal of his sentence and conviction. Jackson made no contemporaneous objections to the comments or lines of questioning now complained of. Accordingly, his arguments are procedurally barred. Chase v. State, 645 So.2d 829, 854 (Miss.1994); Hansen v. State, 592 So.2d 114, 139-140 (Miss.1991). Moreover, “[t]he defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Foster v. State, 639 So.2d 1263, 1289 (Miss.1994). Even when, as in the case sub judice, no contemporaneous objections have been raised, reversal may be necessary when the prosecution has improperly alluded to the defendant's failure to testify. Foster, 639 So.2d at 1290; Griffin v. State, 557 So.2d 542, 552 (Miss.1990); Livingston v. State, 525 So.2d 1300, 1306-07 (Miss.1988). Jackson claims that the prosecution made such statements and pursued questioning which improperly drew the jury's attention to his choice not to take the witness stand. We, however, find no such allusions in the portions of the trial transcript cited by the appellant.

IX. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO MAKE A COMPLETE RECORD OF THE INSTRUCTIONS OF LAW UPON WHICH JURORS WERE TO RELY IN DETERMINING THEIR VERDICTS

Jackson alleges that the circuit court failed to present this Court with a complete record of the instructions presented to the jury during both the guilt and sentencing phases of the trial. He claims, therefore, that it is impossible to review errors he has raised regarding various jury instructions. However, “it is the duty of the appellant to see that the record of the trial proceedings wherein error is claim[ed] is brought before this Court.” Smith v. State, 572 So.2d 847, 849 (Miss.1990); Burney v. State, 515 So.2d 1154, 1160 (Miss.1987); Robinson v. State, 345 So.2d 1044, 1045 (Miss.1977). A transcript of the circuit court's instructions to the jury, which Jackson complained was absent from the record, was prepared and added to the appellate record upon the State's motion. Further, Jackson neither specified which of the refused jury instructions were omitted nor made any effort to supplement the record. Accordingly, we do not consider this assignment of error.

GUILT PHASE
X. WHETHER THE TRIAL COURT ERRED BY PROHIBITING THE EXPERT PSYCHIATRIC TESTIMONY OF DR. SUMMERS AT THE GUILT PHASE OF MR. JACKSON'S TRIAL

As discussed in Issue II, supra, Jackson unsuccessfully sought a continuance to obtain further evaluation and testimony by his psychiatrist of choice, Dr. Timothy Summers. He further complains that circuit court erred in limiting Dr. Summer's proffered testimony to the sentencing phase of the trial, asserting that it was critical to the guilt phase so to enable the jury to make a determination of the issues of Jackson's sanity and whether he had the requisite specific intent to commit the crime of felonious child abuse. However, by the time Jackson sought to introduce the testimony, he had already abandoned the insanity defense. We find no error, therefore, in the exclusion of the testimony.

XI. WHETHER THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON AN OFFENSE FOR WHICH THE JURY WAS AUTHORIZED TO FIND JACKSON GUILTY

Jackson was indicted and found guilty of four counts of capital murder, killing while engaged in the commission of child abuse and/or battery, pursuant to Miss.Code Ann. § 97-3-19(2)(f). The statute provides in relevant part: § 97-3-19. Homicide; murder defined; capital murder.
(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: (f) When done with or without design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of section 97-5-39, or in any attempt to commit such felony; Miss.Code Ann. § 97-5-39 provides that “any person who shall intentionally (a) burn any child, (b) torture any child or, (c) except in self-defense or in order to prevent bodily harm to a third party, whip, strike, or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or battery of a child ...” One act alone may constitute abuse and/or battery; the “statute does not require that the abuse be dispensed over a period of time before a charge for felonious abuse will arise.” Faraga v. State, 514 So.2d 295, 302 (Miss.1987).

In Faraga, this Court rejected a merger doctrine challenge to § 97-3-19(2)(f) and reiterated that “[t]he intent of the Legislature was that serious child abusers would be guilty of capital murder if the child died.” 514 So.2d at 302. Thus, Faraga's capital murder conviction for the death of his two-month old infant was affirmed. In Butler v. State, 608 So.2d 314 (Miss.1992), where a mother appealed her conviction under § 97-3-19(2)(f) for the death of her nine-month old son who died of internal injuries after she punched him in the abdomen when he would not stop crying, this Court held that she was entitled to a lesser included offense instruction on manslaughter pursuant to Miss.Code Ann. § 97-3-27. That statute provides:

§ 97-3-27. Homicide; killing while committing felony.
The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except rape, burglary, arson or robbery, or while such is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter. Finding that in addition to § 97-3-19(2)(f), conviction was authorized under § 97-3-27 for the killing of an infant in the course of felonious child abuse, the Butler Court stated: If Miss.Code Ann. § 97-3-19(2)(f) required, in order to convict, that the killing have been intentional, then clearly Butler would have been entitled to a manslaughter instruction based on Miss.Code Ann. § 97-3-27 as a lesser included offense, the only ingredient lacking being intent. Should she be deprived of such instruction when the statutes, as in this case, are for all intents and purposes identical? Mease v. State, 539 So.2d 1324, 1329-30 (Miss.1989); see also Mackbee v. State, 575 So.2d 16, 23 (Miss.1990); Harper v. State, 478 So.2d 1017, 1021 (Miss.1985). It is well established that when there are two separate criminal statutes for the same offense, the State has a choice of deciding the statute under which to prosecute. Rowland v. State, 531 So.2d 627, 631-32 (Miss.1988); Craig v. State, 520 So.2d 487, 491 (Miss.1988); Cumbest v. State, 456 So.2d 209, 223 (Miss.1984). It is also settled that in such cases the accused is not entitled to have the jury instructed on the statute carrying the lesser penalty. Identical offenses do not authorize the lesser included offense instructions. Rowland, 531 So.2d at 631-32. We do not depart from these principles in the general run of criminal prosecutions. In this case, however, we have a defendant who, under the capital murder statute, was sentenced to death when there was another criminal statute for the same offense with the maximum penalty of twenty years imprisonment. Compare Miss.Code Ann. §§ 97-3-25 (1972), 97-3-21(Supp.1991). We conclude that Butler was entitled to have the jury instructed that she could be convicted under Miss.Code Ann. § 97-3-27, the manslaughter statute.

For over half a century, this Court has approved circuit courts granting heat of passion manslaughter instructions to the State in a homicide prosecution which is either murder or justifiable homicide committed in lawful self defense, and there is no element whatever of a heat of passion slaying under Miss.Code Ann. § 97-3-35 (1972). See Mease v. State, 539 So.2d at 1338 (Hawkins, P.J., concurring). It is not an even-handed administration of justice in turn to deny the defense a manslaughter instruction where the accused, as is the case here, could have been lawfully indicted and prosecuted for manslaughter as easily as capital murder. And especially is this true where one verdict can bring a sentence of death and the other a maximum of twenty years imprisonment. Indeed, we do not think any prosecuting attorney should have it in his power to prosecute a defendant for capital murder when the same offense could be prosecuted under a statute with less severe penalty and also prevent a jury from considering when she should be found guilty only under the statute carrying the lesser punishment. Butler, 608 So.2d at 319-320.

Jackson argues that in light of Butler, he was entitled to a manslaughter instruction pursuant to Miss.Code Ann. § 97-3-27. At trial, Jackson objected to Instruction C-CR-7 because it does not provide for the jury to consider murder or manslaughter and the defendant believes the Court should grant him instructions on the lesser included offenses of both murder and manslaughter. This instruction as to Counts 1 through 4, are virtually peremptory on the question of capital murder. The State countered that it relied on the Faraga decision's one-act rule in turning to the capital murder statute.

Jackson further contends that the evidence justifies a lesser-included offense instruction pursuant to Miss.Code Ann. § 97-3-35. We disagree. A lesser-included offense instruction is required only “where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Mackbee v. State, 575 So.2d 16, 23 (Miss.1990); Boyd v. State, 557 So.2d 1178, 1181 (Miss.1989). § 97-3-35 provides as follows: § 97-3-35. Homicide; killing without malice in the heat of passion. The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law and not in necessary self-defense, shall be manslaughter. Jackson's statement to police indicates that he planned the robbery believing that his mother and the rest of the household would be at church. His attorney conceded that the only evidence to support a heat of passion manslaughter instruction was that Jackson had gotten into a fight with Regina because she did not know the combination to the safe. However, although he used Andrea as a shield while he and Regina were struggling, there is no evidence that he stabbed the baby or killed the other children at that time. Especially in light of Jackson's comment to Regina that he had come to kill them previously and was going to kill them that night, we find no basis for the requested instruction.

Jackson further contends that the circuit court's failure to grant a lesser-included offense instruction under either § 97-3-37 or § 97-3-35 violated his eighth amendment rights. He relies upon Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) for the proposition that the United States Supreme Court's “fundamental concern in Beck [v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) ] was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.” Schad, 501 U.S. at 646, 111 S.Ct. at 2504, 115 L.Ed.2d at 574. However, the jury in the case sub judice was instructed that Jackson could be sentenced to life in prison.

XII. WHETHER THE OVERLAP BETWEEN MISS. CODE ANN. § 97-3-19(2)(f) AND § 97-3-27 GIVES PROSECUTORS AND JURIES UNFETTERED DISCRETION TO IMPOSE EITHER THE DEATH PENALTY OR CONVICT OF MANSLAUGHTER, AND THUS VIOLATES THE EIGHTH AMENDMENT

Jackson next asserts that the existence of two separate statutes under which an individual might be prosecuted for killing during the course of committing the crime of felonious child abuse “fails to provide a principled way to distinguish the few cases in which the death penalty is to be imposed from the many in which it is not.” However, conviction for capital murder does not automatically result in the death penalty. In re Jordan, 390 So.2d 584, 586-587 (Miss.1980). The jury in Jackson's trial was instructed that it could impose a life sentence. Because “the capacity of prosecutorial discretion to provide individualized justice is ‘firmly entrenched in American law,’ ” we therefore find no merit to this assignment of error. Ladner v. State, 584 So.2d 743, 751 (Miss.1991)( quoting McCleskey v. Kemp, 481 U.S. 279, 311-12, 107 S.Ct. 1756, 1777-78, 95 L.Ed.2d 262, 291 (1987)); See also, Butler v. State, 608 So.2d 314 (Miss.1992)(lesser offense of manslaughter instruction in cases where child is killed in the course of felonious abuse and/or battery, provides safeguard for defendant).

XIII. WHETHER THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE CRIME OF FELONIOUS CHILD ABUSE IS VAGUE, OVERLY BROAD AND INSUFFICIENT TO SUPPORT THE JURY'S VERDICT

Jackson variously contends that “the felonious child abuse statute is void for vagueness under the Eighth or Fourteenth Amendments, the instructions given to the jury did not sufficiently narrow the definition of child abuse and the State exploited these constitutional infirmities in closing argument.” He made no objections at trial either to the alleged vagaries of the statute or to the State's comments in closing arguments. Further, he provides no apparent argument for his contention that the language “serious bodily harm” as used in both the statute and the instruction is very broad. Accordingly, this issue is procedurally barred. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992); Hansen v. State, 592 So.2d 114-115 (Miss.1991).

XIV. WHETHER THE TRIAL COURT FAILED TO PROPERLY AND ADEQUATELY INSTRUCT THE JURY CONCERNING THE EVIDENCE ON COUNT FOUR

Count Four of the indictment charged Jackson with the murder of Andrew Kuyoro. Because neither Sarah nor Regina Jackson actually saw Jackson stab Andrew, he contends that evidence that he killed the child is purely circumstantial. Thus, he argues, First Phase Instruction S-2 failed to correctly instruct the jury on the evaluation of circumstantial evidence. In relevant part, Instruction S-2 provides as follows: As to Count 4 of the indictment charging the capital murder of Andrew Odutola Kuyoro, Jr., if you believe from the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence ... the Defendant ... was engaged in or attempting to engage in the felonious abuse and/or felonious battery of Andrew ... and if you further believe from the evidence in this case beyond a reasonable doubt that on that date, the Defendant ... did unlawfully, wilfully, feloniously and of his malice aforethought, kill and murder Andrew ... while so engaged or attempting to engage in the felonious abuse and/or felonious battery of said child, then it is your sworn duty to find the Defendant ... guilty of capital murder as charged in Count 4 of this indictment. In circumstantial evidence cases, “the state is required to ‘prove the accused's guilt not only beyond a reasonable doubt, but to the exclusion of every other hypothesis consistent with innocence.’ ” Isaac v. State, 645 So.2d 903, 909 n. 7 (Miss.1994), quoting Leflore v. State, 535 So.2d 68, 70 (Miss.1988). Jackson now complains that the language “and to the exclusion of every other reasonable hypothesis consistent with innocence” was used only with regard to felonious child abuse and not in connection with the capital murder charges. He neglects to point out, however, that two other jury instructions instructed the jury as to the circumstantial nature of the evidence surrounding Count Four. The jury having been so instructed through Instructions C-CR-3 and C-CR-5, as well as through S-2, we find that no error resulted from the wording of Count Four of Instruction S-2.

XV. WHETHER THE TRIAL COURT ADOPTED AN IMPROPER STANDARD TO REVIEW THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT A LESSER INCLUDED OFFENSE INSTRUCTION OF SIMPLE ASSAULT

Jackson was indicted and convicted of two counts of aggravated assault for his attacks upon Regina and Sarah Jackson. He was denied a lesser included offense instruction on simple assault despite his argument that there was nothing in his confession that he “intentionally” stabbed anybody. Once a deadly weapon is introduced, the distinction between simple and aggravated assault, as defined by Miss.Code Ann. §§ 97-3-7(1) and (2) (1994), hinges upon whether the injuries were inflicted negligently or intentionally. Hutchinson v. State, 594 So.2d 17, 20 (Miss.1992). Therefore, we have held that whether a lesser offense instruction should be given turns on whether there exists an evidentiary basis for it. Id. at 18. Evidence introduced about the events leading to Regina's and Sarah's injuries leaves little room for a jury to find that Jackson was merely negligent in his handling of a knife that evening. Moreover, when serious or substantial bodily harm has resulted, we have been inclined to hold that the case is definitely one of aggravated assault. Hutchinson, 594 So.2d at 20 (but, conversely, minor injuries do not mandate that a case is one of simple assault); Harbin v. State, 478 So.2d 796, 800 (Miss.1985); Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983). The multiple stab wounds suffered by both Regina and Sarah were serious and life threatening. That, coupled with an absence of evidence suggesting that Jackson was merely negligent in his handling of the knife, compels us to find that the jury was properly instructed.

SENTENCING PHASE
XVI. WHETHER THE TRIAL COURT ERRED IN ADMITTING AUTOPSY PHOTOGRAPHS OF THE VICTIMS TO “MORE GRAPHICALLY” DEPICT INJURIES AND WHICH HAD A PREJUDICIAL EFFECT

Jackson asserts that the trial court erred by allowing the introduction of photographs taken at the morgue of the slain children, which were introduced during the testimony of pathologist Dr. Steven Hayne to illustrate the severity of the children's wounds and the pain and suffering associated with them. We find no merit, however, to his contention that the evidence was unnecessary, repetitious or inflammatory to jurors. The admission of photographs is within the discretion of the trial judge and his decision will be upheld absent an abuse of that discretion. Hart v. State, 637 So.2d 1329, 1335-1336 (Miss.1994); Noe v. State, 616 So.2d 298, 303 (Miss.1993). However, “[a]utopsy photographs are admissible only if they possess probative value.” Noe, 616 So.2d at 303; McNeal v. State, 551 So.2d 151, 159 (Miss.1989). Further, they must not be so gruesome or used in such a way as to be overly inflammatory or prejudicial. Hurns v. State, 616 So.2d 313, 319 (Miss.1993); Sudduth v. State, 562 So.2d 67, 70 (Miss.1990). Indiscriminate use of autopsy photographs showing where “a medical technician or pathologist has used the tools of his trade to puncture, sever, dissect and otherwise traumatize body parts” is discouraged. Noe, 616 So.2d at 303.

The six 4?x 6? color photographs in question depict the fatal stab wounds to the neck and face of Dominique Jackson, the neck of Shunterica Jackson, the neck of Andrew [Jackson] Kuyoro and the chest of Antonio Jackson. Taken after the bodies had been cleaned up but before the autopsies were performed, they are neither gruesome nor inflammatory. They show only the immediate areas of the wounds. Dr. Hayne used the photographs in conjunction with styrofoam head models to demonstrate the location and extent of the wounds as well as the nature and extent of the pain and suffering experienced by the victims before they died. We have found such pictures to have probative value in showing the location and number of wounds, the extent of the force or violence involved and the defendant's state of mind. Noe, 616 So.2d at 303-304; Marks v. State, 532 So.2d 976, 981 (Miss.1988); Cardwell v. State, 461 So.2d 754, 760 (Miss.1984). See also, Welch v. State, 566 So.2d 680, 685 (Miss.1990)(pictures of dissected cadaver not admissible because they did not show “circumstances surrounding death, the cruelty of the crime, the place of the wounds, or the extent of the force or violence used”). Further, even when autopsy photographs have been held inadmissible during the guilt phase, they have been admissible, as in the case sub judice, during the sentencing phase “on the issue of whether the crime was heinous, atrocious or cruel.” Shell v. State, 554 So.2d 887, 902 (Miss.1989). Accordingly, we find no abuse of discretion in admitting the photographs.

XVII. WHETHER THE TRIAL COURT ERRED IN ALLOWING EXPERT TESTIMONY ON AN ULTIMATE ISSUE OF LAW

XVIII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENSE COUNSEL TO QUESTION EXPERT PSYCHOLOGICAL WITNESSES ABOUT THE EFFECTS OF JACKSON'S RELUCTANCE TO COOPERATE IN INTERVIEWS

XIX. WHETHER IT WAS ERROR TO RESTRICT THE TESTIMONY OF DR. SUMMERS CONCERNING INFORMATION ON WHICH HE BASED HIS DIAGNOSIS

Jackson raised several issues concerning the admissibility of testimony presented by the court-appointed independent psychologist, Dr. Michael Whalen, as well as the restriction of testimony by his psychiatrist of choice, Dr. Timothy Summers. Dr. Whelan testified during the sentencing phase of the trial that Jackson was not insane at the time of the crime. When questioned on cross-examination by the State regarding the three mitigating factors he had found, Dr. Whelan responded as follows: Q. [By Mr. Crook] If I am understanding your report to the Court and your testimony, his actions and emotions that you found to be present had nothing to do with his responsibility is that correct? A. Not in a legal sense, no. Neither you nor Mr. Walls has really asked me to explain my psychological testing and why that led him to do what he did. But, in a legal sense, no. He is responsible for what he did. Jackson asserts that Dr. Whelan's statement was prejudicial and “irrelevant to sentencing, confusing to jurors on the nature of mitigation, and improper as expert opinion testimony on an ultimate issue of law.” However, Jackson made no objection to the testimony at trial. Accordingly, his argument is procedurally barred by his failure to make a timely objection. Cole v. State, 525 So.2d 365, 369 (Miss.1987).

Jackson next contends that he was denied his constitutional right to cross-examine a witness after the circuit court sustained the State's objection to his questioning of Dr. Whalen. However, Jackson's attorney first questioned Dr. Whelan as to whether Jackson was cooperative during interviews on direct examination and not on cross-examination, ascertaining that Jackson “co-operated on some things and he lied on others.” On re-direct, Jackson's attorney queried Dr. Whelan as to whether he was aware “that people who have been charged with offenses that many times their attorneys tell them not to talk to anyone about their charge.” The circuit court ultimately sustained the State's immediate objection to the question as being outside the scope of cross-examination.FN4 Away from the jury, the circuit court asked Jackson's attorney to repeat his question, whereupon he stated: FN4. The circuit court clarified that Dr. Whelan was not employed by the Department of Corrections. I asked him if he was not aware that many times when people are charge[d] with offenses, their attorneys will tell them not to talk to anyone about their offenses. The reason I am asking the question is because Noel [Crook] extensively went into whether or not he [Jackson] cooperated with Dr. Whelan. Dr. Whelan is a member of the Mississippi Department of Corrections. I think if I can show that the man didn't fully cooperate with him because he works for the Mississippi Department of Corrections and I had advised him not to talk about his case. I think I am entitled to show that.

In Evans v. State, 499 So.2d 781 (Miss.1986), we set forth the parameters of redirect examination as follows: Generally, the scope and extent of re-direct examination is within the discretion of the court. 6 Wigmore, Evidence § 1896 (Chadbourn Rev.1976); 98 C.J.S. Witnesses § 419 (1957). Thus, rulings of the trial court pertaining to redirect will not be disturbed unless there has been a clear abuse of discretion. Wharton's Criminal Evidence, § 451 (13 ed.1972). See also Rule 611(a), Miss.R.Ev., effective January 1, 1986. Although the scope of re-direct is largely within the discretion of the court, R. 508, Miss.Unif.Crim.R.Cir.Ct.P. provides that “[r]edirect examination is limited to matters brought out on cross-examination.” R. 5.08, Miss.Unif.Crim.R.Cir.Ct.P. Id. at 782-783. On cross-examination, the State questioned Dr. Whelan about his statement that Jackson had cooperated on some things and lied on others.FN5 That option was available to Jackson as well. He did not take advantage of it. Only on re-direct, for the first time, did the defense broach the subject of what factors Dr. Whelan was aware of which possibly might have influenced the psychologist-patient relationship. Moreover, this line of questioning was not relevant and Jackson made no proffer of what he expected to reveal by pursuing it. Thus, while the circuit court made the right decision for the wrong reason, there was no error in sustaining the State's objection to the line of questioning. FN5. Dr. Summers, Jackson's psychiatrist of choice, also testified that Jackson was sometimes less than honest with him.

Jackson further argues that during the sentencing phase of the trial, the circuit court improperly limited Dr. Summers' testimony regarding the sources of his diagnosis that Jackson suffered from intermittent explosive episodes, a complex partial seizure disorder and possibly, a brain disfunction associated with multiple episodes of brain trauma. To establish Jackson's history of head trauma, Dr. Summers testified that he had examined Jackson's medical records and sought to interview coaches, supervisors and family members who had been present when these injuries occurred. As he began to recount what he had been told by Jackson's high school football coach, the State objected on grounds of hearsay and later on grounds that the testimony was repetitious. Although various family members already had testified about the injuries Jackson had suffered over the years, the circuit court overruled the objection and allowed Dr. Summers to continue. From the context of Dr. Summer's testimony, it appears that he was restricted only from recounting his conversation with Jackson's football coach. Dr. Summers discussed at length the various sources of his evaluation: statements made by friends and family members, interviews with Jackson, psychiatric and psychological evaluations, medical and prison records. Any further recitation would have been cumulative under Miss. R. Evid. 403. XX. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE DISTRICT ATTORNEY TO CROSS-EXAMINE A WITNESS OUTSIDE THE SCOPE OF PERMISSIBLE SENTENCING PHASE TESTIMONY

On cross-examination, the prosecution briefly examined Jackson's mother, Martha Jackson, regarding the amount and ownership of the money in the safe. Despite the defense's vigorous objections, Mrs. Jackson reluctantly stated that Curtis had borrowed $300.00 from her but had not paid it back, that she knew that her son, Eddie Self, had been convicted for selling cocaine and that she had put the $16,000.00 certificate of deposit in the safe. Jackson contends that in so questioning his mother, the prosecutor, by alleging “that the money in the family safe was obtained through the sale of illegal drugs,” went beyond the scope of proper questioning and attacked the credibility of family members who testified on Jackson's behalf. During the sentencing phase of a death penalty case, “the state is limited to offering evidence that is relevant to one of the aggravating circumstances included in § 99-19-101.” Stringer v. State, 500 So.2d 928, 941 (Miss.1986); Coleman v. State, 378 So.2d 640, 648 (Miss.1979). The aggravating circumstances are limited to those enumerated in Miss.Code Ann. § 99-19-101 (rev.1994). Balfour v. State, 598 So.2d 731, 748 (Miss.1992). One of the aggravating circumstances put forward by the State was that the capital offense was committed for pecuniary gain pursuant to Miss.Code Ann. § 99-19-101(5)(f). During the guilt phase of the trial, the jury had been made aware of Eddie Self's conviction for cocaine and its connection with the money in the safe. The prosecution's line of questioning during the sentencing phase was not relevant to development of the enumerated aggravated circumstances. However, since the origins of the safe contents were brought out during the guilt phase, any error in admitting Mrs. Jackson's testimony was, at best, harmless.

XXI. WHETHER THE TRIAL COURT ERRED BY PROHIBITING DEFENSE COUNSEL FROM TELLING JURORS THAT “LIFE” MEANS “LIFE”

XXII. WHETHER THE TRIAL COURT FAILED TO PROPERLY INSTRUCT JURORS ON THE PROPER PRESUMPTIONS TO GUIDE SENTENCING DELIBERATIONS

Jackson next contends that the circuit court erred in preventing him from adequately informing the jury regarding the option of life imprisonment. The circuit court granted the State's Motion in Limine to Prohibit Discussion of Meaning of Life Sentence, prohibiting counsel for Jackson or the State from mentioning to the jury that imposition of a life sentence would mean either that the defendant would be imprisoned for the rest of his life or that he could be eligible for parole, because of the prejudice that could result from either statement. Jackson now contends that granting the order prevented him from making a proper argument to the jury regarding the nature of the available sentencing options. He further asserts that the circuit court erred in refusing to grant his requested instruction, D-S-5, which would have instructed the jury on the presumption of life imprisonment.

There is no merit to Jackson's arguments. Eligibility for parole, actions of the parole commission and the judge's determination of the configuring of sentences are not the proper subject either of closing arguments or jury instructions. Williams v. State, 544 So.2d 782, 798 (Miss.1987)(Jessie Derrell Williams); Williams v. State, 445 So.2d 798 (Miss.1984)(Walter Williams, Jr.). See also, Griffin v. State, 557 So.2d 542, 553 (Miss.1990)(prosecutor's mention of possibility of parole during closing arguments contributed to cumulative errors warranting reversal of case). In so far as the jury instruction is concerned, in Chase v. State, 645 So.2d 829 (Miss.1994), where it was asserted that an instruction allowed by the trial court improperly shifted to the defense the burden of proving that mitigating circumstances outweighed aggravating circumstances, we flatly rejected the appellant's argument that “a defendant should go into the sentencing phase with a presumption that life is the appropriate punishment.” Chase, 645 So.2d at 860. See also, Leatherwood v. State, 435 So.2d 645, 650 (Miss.1983)(if defendant “had not been convicted of a capital offense, there would be no need for the sentencing hearing and he would simply be sentenced to serve a life term. This does not mean though that the procedure is unfair or faulty.”) Accordingly, we find no merit in either argument.

XXIII. WHETHER THE CIRCUIT COURT ERRED IN PROHIBITING DEFENSE COUNSEL FROM PRESENTING ARGUMENTS ON THE INFLUENCE OF RACE UPON THE DEATH PENALTY

Before closing arguments were made in the sentencing phase of the trial, the circuit court granted the State's an ore tenus motion in limine to prohibit the defense from making racial arguments against the death penalty. Jackson raised no objections. He now contends that the court's ruling inhibited his ability to exercise the “wide latitude” afforded to attorneys in making closing arguments and created a risk that the trial could be tainted by racial prejudice. Jackson's claim is procedurally barred by his failure to make a timely objection at trial. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992); Fleming v. State, 604 So.2d 280-292 (Miss.1992). Even looking at the merits of his argument, Jackson's reliance on McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) is misplaced. While McCleskey may, as Jackson suggests, stand for the proposition that racial arguments may be appropriate in some situations, it certainly does not hold that such arguments are necessarily proper for presentation to the jury. Moreover, as distinguished from McCleskey, Jackson makes no claim of racial bias, presents no proof of racial bias and was not faced with any potential bias on the basis of the race of his victims. Accordingly, there is no merit to his argument.

XXIV. WHETHER THE SENTENCING VERDICT FORM WAS DESIGNED TO ENCOURAGE JURORS TO NEGLECT ADEQUATE CONSIDERATION OF SENTENCING OPTIONS OTHER THAN DEATH

Jackson next contends that the form of the sentencing verdict was such that jurors were led to overlook sentencing options other than death. Jackson raised no objection to the instruction at trial and thus has waived his right to challenge it on appeal. Conner v. State, 632 So.2d 1239, 1273 (Miss.1993)(failure to object at trial to form of verdict waived right to complain on appeal). However, we note that for each count of capital murder, space for the foreman's signature was provided only for the first sentencing option, the death penalty, and not for the second option, life imprisonment. In a similarly-structured instruction in Jenkins v. State, 607 So.2d 1171, 1180 (Miss.1992), however, we found fault with the instruction, stating: We are concerned that the instruction as written and printed could cause the jury to neglect Options Two and Three. Upon retrial, we suggest that the trial court revise this instruction to more clearly instruct the jury. Id. Although Jackson's claim is procedurally barred, we again urge the trial courts to exercise more caution in the issuance of such instructions.

XXV. WHETHER THE TRIAL COURT ERRED IN GRANTING THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT CREATED A GREAT RISK OF DEATH TO MANY PERSONS

Jackson next objects to the inclusion in Instruction S-1 of the statutory aggravating circumstance that the “defendant knowingly created a great risk of death to many persons.” Miss.Code Ann. § 99-19-101(5)(c). At trial, he asserted that the language was vague and allowed the jury to speculate. He now contends that “[t]he aggravating circumstance is directed toward punishing someone who acts in such a way as that persons other than the intended victim or victims is killed” and that the question “is not how many were killed, but whether the method of killing was such that persons not intended to be victims were in danger of harm, e.g., methods such as arson, bombing, or shooting wildly into a crowd.” We have addressed this issue only tangentially, noting in Wheeler v. State, 536 So.2d 1341 (Miss.1988), where a conviction was affirmed as to the lesser-included offense of simple murder, that the defendant's action of seizing a police officer's gun and firing it at random had allowed the jury to find that he “ ‘knowingly created a great risk of death to many persons.’ ” Id. at 1344. Other jurisdictions, in determining the applicability of this particular aggravator, have reached results as various as the circumstances of the individual case, colored by statutory language, the nature of the weapon used and the number and location of the victims. Thomas J. Fleming, Annotation, Sufficiency of Evidence, for Purposes of Death Penalty, to Establish Statutory Aggravating Circumstance That In Committing Murder, Defendant Created Risk of Death or Injury to More than One Person, to Many Persons, and the Like-Post-Gregg Cases, 64 A.L.R.4th 837 (1988 and Supp.1994).

We reject Jackson's argument and adopt instead the position taken by our sister jurisdiction in Ex parte Giles, 632 So.2d 577 (Ala.1993), where the defendant, like Jackson, asserted that the aggravator applied only to those instances where there was a great risk to those other than the intended victims. The Alabama court held that “[i]t would be anomalous to hold that § 13-11-6(3) allows sentence enhancement where the defendant unintentionally endangers persons other than the homicide victims, but disallows enhancement where the defendant intentionally threatens the lives of others.” Id. at 584 (emphasis added). It further has found that the aggravating circumstance is applicable where there are multiple victims. Giles v. State, 632 So.2d 568, 573 (Ala.1992)(evidence showed that defendant killed husband and wife, shot their daughter in the eye and one son in the chest and stabbed another); Wesley v. State, 575 So.2d 108 (Ala.Cr.App.1989), rev'd on other grounds, 575 So.2d 127 (Ala.1990)(defendant killed two people, wounded three and attempted to murder a policeman).

In cases where, as in the case sub judice, multiple victims have been stabbed in the same or a nearby room, courts in other jurisdictions generally have found that there was sufficient evidence to warrant the “great risk to many persons” aggravating circumstance. Nguyen v. State, 769 P.2d 167 (Okla.Crim.App.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989)(three victims all knew defendant and resided in same house where murdered); State v. Monroe, 397 So.2d 1258 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411 (1983)(defendant stabbed victim's daughter who tried to intervene before fatally stabbing victim during a struggle); State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982) (overruled in part on other grounds by State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983) and State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (1983)) (defendant fatally stabbed victim, stabbed two of her three children, set house on fire and told children not to leave until fire department arrived). Considering the circumstances of this case, where four children were stabbed to death and one adult and two other children received life-threatening stab wounds, we find that use of the “great risk to many persons” aggravating circumstance certainly is warranted. To restrict its use to those crimes where very large numbers of individuals were at risk or those where the safety of others than an intended few was jeopardized would limit the statute beyond its intended scope. Thus, the jury was properly instructed.

XXVI. WHETHER THE CIRCUIT COURT ERRED IN INSTRUCTING THE JURY TO CONSIDER THE UNDERLYING FELONY AS AN AGGRAVATING CIRCUMSTANCE

Jackson next asserts that the inclusion of the aggravating circumstance that he was engaged in commission of the crime of felonious abuse and/or battery of a child at the time of the murders in Counts 1 through 4 of Sentencing Instruction S-1 duplicates an element of the offense for which he was charged, thus violating the eighth amendment because of its failure to narrow the class of defendants eligible for the death penalty. Jackson made no contemporaneous objection to the instruction on this ground. Notwithstanding Jackson's failure properly to preserve the issue for appellate review, Russell v. State, 607 So.2d 1107, 1117 (Miss.1992), there is no merit to his argument. The United States Supreme Court has held that as long as the class of defendants eligible for the death penalty is narrowed during the guilt or sentencing phase of the trial, “the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm.” Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 555, 98 L.Ed.2d 568 (1988). In Ladner v. State, 584 So.2d 743 (Miss.1991), this Court, again rejecting the contention that aggravating factors could not be “stacked,” reiterated Lowenfield, stating: The United States Supreme Court held that when constitutionally required narrowing of the class of persons eligible for the death penalty is accomplished by the legislative definition of capital offenses in the guilt phase (as is done in Louisiana and Mississippi), the jury's further narrowing of the sentencing phase is not constitutionally required. Lowenfield, 484 U.S. at 241-46, 108 S.Ct. at 552-55, 98 L.Ed.2d at 579-83. Accordingly, there was no error in allowing the jury to consider the underlying felony as an aggravating factor.

XXVII. WHETHER THE CIRCUIT COURT ERRED IN GRANTING THE AGGRAVATING CIRCUMSTANCE THAT JACKSON COMMITTED A PREVIOUS VIOLENT FELONY

Jackson next asserts that the State failed to meet its burden in proving the aggravating circumstance that he had committed a prior “felony involving the use or threat of violence to the person” within the meaning of Miss.Code Ann. § 99-19-101(5)(b) in a lovers' triangle incident because the gun he had used was inoperable and separate kidnaping charges against him were dropped. As evidence of Jackson's prior felony, the State submitted a certified copy of the indictment and judgment as well as testimony by police officers present at the incident. A certified copy of the judgement alone has been found by this Court to be sufficient evidence of a prior crime. Berry v. State, 575 So.2d 1, 14 (Miss.1990); Minnick v. State, 551 So.2d 77, 96 (Miss.1988), rev'd on other grounds sub nom. Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). There is no merit, therefore, to Jackson's specific claims that there was insufficient evidence to support a finding that the felony “involved a threat of violence against the person” because the gun he used could not fire and the kidnapping charges were dropped. In Berry, where the appellant asserted that his prior conviction was invalid as an aggravating factor because he had obtained a civil judgment against the police officer who shot him during the incident, this Court found that “[d]espite these disturbing facts, the trial court cannot retry all prior convictions; thus, we have held the trial judge is not required to look beyond the prior conviction, valid on its face.” Id. at 14; Nixon v. State, 533 So.2d 1078, 1099 (Miss.1987). Thus, there was no basis for the circuit court to make extensive inquiry into the facts behind Jackson's prior conviction.

XXVIII. WHETHER SENTENCING INSTRUCTION S-3 IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD

Sentencing Instruction S-3 provides as follows: The Court instructs the Jury that in considering whether the capital offense was especially heinous, atrocious or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others. An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of murders-the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence beyond a reasonable doubt that the Defendant utilized a method of killing which caused serious mutilation, that the Defendant inflicted physical or mental pain before death, that there was mental torture and aggravation before death, or that the lingering or tortious death was suffered by the victim then you may find this aggravating circumstance. Jackson contends that this instruction is overbroad and unconstitutionally vague, setting up a “multiple choice” questionnaire for jurors to contend with. A brief analysis of the instruction, however, shows that both this Court and the United States Supreme Court have found this language sufficient to limit the jury's consideration of the “heinous, atrocious or cruel” aggravating circumstance. In Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990), the United States Supreme Court found that used alone, language identical to that used in the first paragraph of the instruction was not constitutionally sufficient.FN6 However, language used in the first sentence of the second paragraph: FN6. That portion of the instruction is taken from the Fifth Circuit's decision in Spinkellink v. Wainwright, 578 F.2d 582, 611 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). See also, Jenkins v. State, 607 So.2d 1171, 1181 (Miss.1992).

An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of murders-the conscienceless or pitiless crime which is unnecessarily torturous to the victim. was determined by the United States Supreme Court to be a proper limiting instruction to the Shell language in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Finally, in Hansen v. State, 592 So.2d 114 (Miss.1991), we noted that when considering whether a crime could be considered “especially heinous, atrocious or cruel,” it had stated in Pinkney v. State, 538 So.2d 329, 357 (Miss.1988), vacated on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), that: barbarity sufficient to satisfy this aggravating circumstance can be demonstrated by showing that the defendant utilized a method of killing which caused serious mutilation, where there is a dismemberment of the corpse, where the defendant inflicted physical or mental pain before death, or where a lingering or tortuous death was suffered by the victim. Hansen, 592 So.2d at 152. Although this aspect of Pinkney was not addressed in the United States Supreme Court's review of the case, similar limiting language, also like that employed in the last sentence of Instruction S-3, was approved in Lewis v. Jeffers, 497 U.S. 764, 768-70, 110 S.Ct. 3092, 3096, 111 L.Ed.2d 606, 615-16 (1990) and Walton v. Arizona, 497 U.S. 639, 645-47, 110 S.Ct. 3047, 3053, 111 L.Ed.2d 511, 523-24 (1990). Accordingly, we find no merit to this assignment of error.

XXIX. WHETHER THE CIRCUIT COURT REFUSED TO PROPERLY INSTRUCT JURORS ON THE EXISTENCE OF MITIGATING CIRCUMSTANCES TO CONSIDER IN SENTENCING DELIBERATIONS

Jackson asserts that the circuit court erred in refusing to grant his requested Instruction D-S-6, asserting that with mitigating factors, “that ‘credible evidence’ is presumed to be true, and that, unless the State rebuts the evidence beyond a reasonable doubt, it may be considered by jurors when weighing mitigating against aggravating circumstances.” Almost anything for which there is an evidentiary basis may be considered by the jury as mitigating circumstances. Chase v. State, 645 So.2d 829, 856 (Miss.1994). In West v. State, 519 So.2d 418 (Miss.1988), this Court explained: The law is now well established that the Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character, record, or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Jordan v. State, 518 So.2d 1186 (Miss.1987). 519 So.2d at 426. However, there is no basis for the refused instruction's directive regarding the State's burden to rebut any mitigating evidence. It is, to the contrary, an incorrect statement of the law and was properly refused by the circuit court. Willie v. State, 585 So.2d 660, 673 (Miss.1991).

XXX. WHETHER THE CIRCUIT COURT ERRED IN REFUSING TO PROVIDE JURORS RELEVANT AND IMPORTANT MITIGATION EVIDENCE

XXXI. WHETHER THE CIRCUIT COURT ERRED BY FAILING TO INFORM THE JURY OF SENTENCES JACKSON WOULD BE REQUIRED TO SERVE ON HIS CONVICTIONS FOR ARMED ROBBERY AND TWO COUNTS OF AGGRAVATED ASSAULT BEFORE THE JURY DELIBERATED ON HIS DEATH SENTENCE

Jackson further contends that the circuit court's failure to inform the jury of the sentences he would be required to serve for the other charges against him deprived him of the opportunity to convey important mitigating evidence to the jury. He first asserts that the circuit court's refusal to grant Jury Instruction D-S-13 denied him the opportunity to instruct the jury that if sentenced to four consecutive life sentences on Counts 1 through 4, he would not be eligible for parole for forty years. We have found that evidence of other sentences might be used as a mitigating factor to show that the defendant would be subject to serious punishment even if the death penalty were not imposed. Davis v. State, 512 So.2d 1291, 1293 (Miss.1987). However, matters such as eligibility for parole or lack thereof and the judges determination of sentence configuration are not a proper subject of jury instructions. Williams v. State, 544 So.2d 782, 798 He further argues, that this Court has allowed “evidence of mitigating circumstances of an unlimited nature.” Davis, 512 So.2d at 1293, quoting Leatherwood v. State, 435 So.2d 645, 650 (Miss.1983). See also Chase v. State, 645 So.2d 829, 856 (Miss.1994)(restriction only that evidence is relevant). While the Davis Court noted that “it is highly unusual for a defense counsel to cite the existence of another prison sentence as a mitigating factor (indeed, we have never heard of it being done before),” it suggested that the evidence might be used to show that the defendant was subject to severe punishment even if the death penalty were not imposed. Davis, 512 So.2d at 1293. As distinguished from Davis, however, where the judge refused the defendant's request to admit his sentencing order as evidence, the record does not indicate that Jackson attempted to introduce the other sentences as mitigating evidence or that the circuit court refused to admit the sentencing order. Since he neither attempted to introduce evidence of the other sentences nor requested an appropriate jury instruction, the assignment of error is procedurally barred. Williams v. State, 445 So.2d 798 (Miss.1984). Accordingly, there is no merit to this assignment of error.

XXXII. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO INSTRUCT THE JURY ON NON-STATUTORY MITIGATING CIRCUMSTANCES

Jackson asserts that he should have been allowed a separate mitigating instruction that he had demonstrated extreme remorse for the crimes committed. Instruction S-1, a “catch all” instruction was given. This Court long has accepted the use of a “catch-all” to encompass any mitigating circumstances not specifically enumerated under Miss.Code Ann. § 99-19-101(6). Gray v. State, 375 So.2d 994, 1003-1004 (Miss.1979). In Neal v. State, 451 So.2d 743, 761 n. 11 (Miss.1984), cert. denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984)(approving the “catch-all” language used in Gray ). Accordingly, Jackson cannot complain that he was not afforded the opportunity to instruct the jury to consider remorse as a mitigating factor.

XXXIII. WHETHER THE CIRCUIT COURT ERRED IN REFUSING TO INFORM JURORS ON THE STATUTORILY MANDATED MANNER OF JACKSON'S EXECUTION

Jackson next asserts that the circuit court, in refusing jury instruction D-S-2, denied him the opportunity to inform the jury that if sentenced to death, he would be executed by lethal injection. He mistakenly relies on Caldwell v. State, 443 So.2d 806, 814 (Miss.1983), where we stated merely that there was no error where, during the sentencing phase of the trial, the prosecutor and the judge “truthfully and accurately stated that the sentence of death would be automatically reviewed by a higher court.” Caldwell, 443 So.2d at 814. Nothing in the language of Caldwell suggests that the jury must be informed of each and every “automatic component” of a capital murder case through jury instructions or any other means. To the contrary, the method of execution is of no concern to the jury. In Williams v. State, 445 So.2d 798 (Miss.1984), where the Court found that references to the possibility that the defendant not be sentenced to death are “wholly out of place” in the sentencing phase of a capital murder case, it was stated, “[i]t is no more proper for the jury to concern itself with the wisdom of that legislative determination than it is for the jury to consider the Legislature's judgment that death in the gas chamber be an authorized punishment for capital murder.” Id. at 813. Accordingly, we find no merit to this assignment of error.

XXXIV. WHETHER THE CIRCUIT COURT FAILED TO PROPERLY INSTRUCT JURORS ON A STATUTORILY REQUIRED ASPECT OF SENTENCING DELIBERATION

XXXV. WHETHER THE TRIAL JUDGE FAILED TO CORRECTLY INFORM JURORS ON WEIGHING AGGRAVATING AND MITIGATING CIRCUMSTANCES

XXXVI. WHETHER THE CIRCUIT COURT FAILED TO ADEQUATELY INSTRUCT JURORS ON “AUTOMATIC” REQUIREMENTS TO IMPOSE A DEATH PENALTY

Jackson next argues that the circuit court erred in refusing to grant a variety of instructions which we characterize as “mercy instructions.” He first argues that the circuit court misconstrued the requirements of Miss.Code Ann. § 99-19-101(2) and kept the jurors from being fully informed of their responsibilities in imposing a proper sentence by refusing to grant Instruction D-S-4, which reads simply: If any juror has any doubt as to the appropriate punishment then you shall not sentence Henry Curtis Jackson, Jr. to death. He further asserts that the circuit court erred in denying jury instructions D-S-7, D-S-9, D-S10, D-S-11 and D-S-12A. With the exception of Instruction D-S-7, these instructions all expressly employ the term “mercy” or its synonyms, “pity” or “sympathy.” As to Instruction D-S-7, he contends that the jury was not properly instructed that it was not required to sentence him to death. We have held that mercy instructions are not required and further, that their issuance is within the discretion of the circuit court. Foster v. State, 639 So.2d 1263, 1301 (Miss.1994); Jenkins v. State, 607 So.2d 1171, 1181 (Miss.1992); Hansen v. State, 592 So.2d 114, 150 (Miss.1991). In Jenkins, where no reversible error was found in the lower court's refusal to grant a mercy instruction, it was explained that: The recent decisions of this Court and of the United States Supreme Court enumerate that a mercy instruction is not required at trial. In Ladner [ v. State, 584 So.2d 743, 761 (Miss.1991) ], we held that a defendant “has no right to a mercy instruction.” Ladner, 584 So.2d at 761. In Saffle v. Parks, 494 U.S. 484, 492-93, 110 S.Ct. 1257, 1262-63, 108 L.Ed.2d 415, 427-28 (1990), the U.S. Supreme Court stated that the giving of a mercy instruction results in a decision based upon whim and caprice. Thus, the lower court was within its discretion when it denied the mercy instruction below. Jenkins, 607 So.2d at 1181. See Foster, 639 So.2d at 1299-1300 (instruction directing jury that it need not find any mitigating circumstances to return a life sentence found to be a mercy instruction). We therefore find no merit to these assignments of error.

XXXVII. WHETHER ERRORS IN JURY INSTRUCTIONS AT THE SENTENCING PHASE COMBINED TO REQUIRE MR. JACKSON'S SENTENCES TO BE VACATED

XXXVIII. WHETHER THE AGGREGATE EFFECT OF THE ERRORS IN THIS CASE REQUIRES REVERSAL OF MR. JACKSON'S CONVICTIONS AND VACATION OF HIS SENTENCES

Jackson contends that the combination of errors in jury instructions at the sentencing phase as well as the aggregate effect of the errors in both phases of the trial warrant the reversal of his case. See Hansen v. State, 592 So.2d 114, 142 (Miss.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992). However, many of Jackson's assignments of error are procedurally barred and those remaining are without merit. Therefore, we find no merit in these assignments of error.

CONCLUSION

Pursuant to Miss.Code Ann. § 99-19-105(3)(Supp.1985), in addition to reviewing the merits of those issues raised by the defendant, we are required to determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) Whether the evidence supports the jury's or judge's findings of a statutory aggravating circumstances as enumerated in Section 99-19-101; and (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Since our decision in Jackson v. State, 337 So.2d 1242 (Miss.1976), we have upheld the imposition of the death penalty in the cases listed in the appendix. We have carefully reviewed those cases and compared them with the case and sentence sub judice. Having done so, we find that the sentence of death in this case was not influenced by passion, prejudice, or any other arbitrary factor and that the evidence supports the jury's findings of statutory aggravating circumstances as listed in Miss.Code Ann. § 99-19-105(5)(Supp.1983). Considering the appellant and the facts of the crime committed, we find that the sentence of death in this case is neither excessive nor disproportionate to those cases in which such sentence has been imposed and upheld. Having reviewed the record as submitted from the Circuit Courts of Leflore and Copiah Counties, we find no errors warranting reversal. Accordingly, we affirm the conviction of capital murder and sentence of death.

CONVICTION OF CAPITAL MURDER (FOUR COUNTS) AND SENTENCE OF DEATH AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7)(1972) AND M.R.A.P. 41(a). DAN LEE, C.J., PRATHER and SULLIVAN, P.JJ., and JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur. BANKS, J., concurs in result only. PITTMAN, J., not participating.

Jackson v. State, 860 So.2d 653 (Miss. 2003). (PCR)

After defendant's conviction for capital murder and death sentence were affirmed, 684 So.2d 1213, defendant filed in the Circuit Court, Leflore County, Gray Evans, J., a petition for post-conviction relief and an application for leave to file motion to vacate conviction and/or death sentence. The Supreme Court, McRae, P.J., held that: (1) claim that defendant was entitled to manslaughter jury instruction was decided in direct appeal; (2) defendant was eligible for death penalty; (3) psychologist who performed examine was competent; (4) defendant's counsel was not ineffective; (5) defendant was competent to stand trial; and (6) prosecutor did not engage in misconduct by referring to bible in closing. Petition denied.

EN BANC. McRAE, Presiding Justice, for the Court:

¶ 1. Henry Curtis Jackson, Jr., was convicted in the Leflore County Circuit Court in 1991 of capital murder and sentenced to death for the stabbing deaths of four children, his nieces and nephews. This Court affirmed his conviction and sentence on direct appeal. Jackson v. State, 684 So.2d 1213 (Miss.1996), rehearing denied, 691 So.2d 1026 (Miss.1996), cert. denied, 520 U.S. 1215, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997).FN1 Jackson has filed a Petition for Post Conviction Relief in the Circuit Court of Leflore County and an application for leave to file motion to vacate conviction and/or death sentence which are presently before this Court. His petition and application are denied.

FN1. Jackson's attorney at trial and on direct appeal did not file a petition for rehearing; and the original opinion was published as Jackson v. State, 672 So.2d 468 (Miss.1996). Jackson acquired new counsel who was granted permission to file an out-of-time petition for rehearing. This Court denied the petition and substituted the original opinion with a new one, cited above. Jackson v. State, 684 So.2d 1213 (Miss.1996). In May of 1998, Jackson's counsel then filed an Application for Leave to File Petition for Uniform Post Conviction Collateral Relief, a supporting memorandum, and the proposed petition, a motion for payment of reasonable litigation expenses and two brief evidentiary supplements to the initial pleadings. Ultimately, this Court issued an opinion holding that indigent death-sentenced inmates are entitled to the appointment of counsel for post-conviction collateral appeals. Jackson v. State, 732 So.2d 187 (Miss.1999). Jackson's counsel then assumed the position as the newly formed Mississippi Office of Capital Post-Conviction Counsel; and this Court assigned him to Jackson's case. Counsel, however, had to withdraw due to a conflict of interest, as counsel represented Jackson in connection with his direct appeal, namely the Petition for Rehearing; and under M.R.A.P 22(d)(4), post-conviction counsel must not have represented the capital petitioner “in the direct appeal” unless “the petitioner and counsel expressly request continued representation and waive all potential issues that are foreclosed by continued representation.” Ultimately, counsel was removed from the case; and other attorneys at the Office of Capital Post-Conviction Counsel were imputed and disqualified under the professional rules. Miss. Rules of Professional Conduct 1.10(a). Then, Jackson's counsel resigned from the Office, therefore removing the conflict imputation. The Office was then re-appointed to represent Jackson, and on November 1, 2002, the present Petition for Post Conviction Relief was filed. This Petition incorporates all of the prior pleadings filed on Jackson's behalf in 1998, including the Application for Leave to File Motion to Vacate Judgment and Sentence, the Memorandum in support thereof, the 1998 Application for Leave to File Petition for Uniform Post-Conviction Collateral Relief, and the First and Second Supplements to the Record to said 1998 Petition.

Facts

¶ 2. Jackson murdered four children, two of his nieces and two of his nephews, in an attempt to steal money kept in his mother's safe in her home.FN2 On the evening of November 1, 1990, Jackson's mother, Martha, and four of her older grandchildren went to church. Martha's daughter, Regina Jackson, stayed home with her two daughters, five-year-old Dominique whom Jackson murdered that night, two-year-old Shunterica whom Jackson murdered, and four other of their nieces and nephews, three-year-old Antonio whom Jackson murdered and two-year-old Andrew whom Jackson murdered, and eleven-year-old Sarah and one-year-old Andrea who were severely injured during these murders but survived. FN2. The facts are summarized from those as set forth in this Court's opinion in Jackson's direct appeal. Jackson v. State, 684 So.2d 1213 (Miss.1996).

¶ 3. While Regina and the children were at the house watching television, Jackson parked his car two blocks away, walked to the house, and cut the outside telephone line. He then knocked on the door and was allowed inside. While inside, he picked up the phone and indicated it was not working. Regina headed to a neighbor's house to place a call to check the phone. Before going very far, Jackson told Sarah to call Regina back. Regina came back in and, followed by her daughter Shunterica, sought Jackson in the kitchen. Jackson told Regina to take Shunterica back into the television room. She did so and upon her return to the kitchen Jackson grabbed her from behind. With one hand around her neck and one around her waist, he walked her down the hall to the boys' room. He asked for her paycheck. Regina told him she had no money. Jackson then asked for the combination to his mother's safe. When Regina said she did not know it, he pulled out knives and shoved them into her throat and waist. Regina yelled for eleven-year old Sarah, who came running and jumped on Jackson's back. The three struggled, during which Jackson told him that he had to kill them. Sarah begged him to just get the safe and leave.

¶ 4. Meanwhile, the smaller children had followed Sarah down the hall, and Jackson called them into the room where they obediently remained. He then took Regina into an adjacent room and tried to open the footlocker where he believed the combination to the safe was kept. Jackson then began stabbing Sarah in the neck, then took Regina and Sarah into the boys' room where he tried to tie them up. Regina, who had already been stabbed several times, picked up some iron rods that Jackson had brought in from the bathroom, and started hitting him with them. Jackson then went and picked up the baby, one-year old Andrea, and used her as a shield. Regina relinquished the rods and let him tie her up with a belt. He stabbed her again in the neck. While Regina watched, Jackson picked up her daughter, two-year old Shunterica, by the hair, stabbed her, killed her, and laid her on a bed.

¶ 5. While Regina and Sarah were struggling to stay alive, Jackson started dragging the safe down the hall which awakened five-year old Dominique. Dominique came down the hall calling for her mother, at which time, as Regina testified, Jackson told Dominique that he loved her, but then stabbed her, killed her and threw her on the floor. After killing Dominique, Jackson walked over to Regina and again shoved a knife in her neck. Regina then pretended she was dead.

¶ 6. Sarah tried to comfort her baby sister, Andrea, and told three-year old Antonio to run for help. Jackson called Antonio back. Regina had fainted by this time and Jackson was trying to wake her up. He then grabbed Sarah again and began stabbing her in the neck. After the knife broke off in her neck, he ran to the kitchen, retrieved another knife, stabbed her again and threw her on a bed. Sarah, too, then pretended she was dead. She heard Antonio yelling for help and saw Jackson kneeling over him. While Sarah did not actually see Jackson stabbing him, she testified that “I saw his hand moving when he was over him. I didn't see but I knew he was doing something cause my little brother was hollering.” She likewise did not witness the stabbing of two-year old Andrew, but when she saw him, “[h]e was on the bottom of the bed and his eyes were bulging and his mouth was wide open.” Sarah was able to jump from the bed and escape out the front door. She hid behind a tree across the street and watched as Jackson came outside, looked around, and went back inside.

¶ 7. Upon Jackson's last view of the room, Regina and Andrea appeared dead, and the four children, five-year-old Dominique, three-year-old Antonio, two-year-old Shunterica and two-year-old Andrew, were all dead.

¶ 8. Shortly after the murders, Angelo Geens, Martha Jackson's cousin and neighbor, returned to his home at about 8:30 p.m. Sarah ran to him from where she had been hiding and told him that Regina and the others were in the house and that her uncle Jackson had killed them all. Geens carried her into his house and called the police and an ambulance. Deputy Sheriff J.B. Henry and Deputies Tindall, Berdin and Fondren arrived at the scene and discovered the bodies of the four children. Leflore County Coroner James R. Hankins pronounced the four children dead at the scene. From the house, the bodies of Shunterica, Dominique, Andrew, and Antonio were sent to the Deputy State Medical Examiner for forensic pathology examinations.

¶ 9. Meanwhile, Jackson had become the subject of an extensive manhunt. While still at the Jackson residence, Deputy Sheriff Tindall received a call from the Highway Patrol regarding a wrecked car in Eupora just fifty yards from the site where the Eupora Police Department had been conducting a routine license check. The car, a 1977 green Monte Carlo, bore a license tag registered to Martha Jackson's 1973 brown Ford station wagon. A wallet containing Jackson's identification was found on the front console, and his own license tag as well as a long, dark trench coat were found in the trunk. Jackson had abandoned the car when he saw the roadblock and took off a foot. Eluding police, Jackson jumped a train from Eupora to West Point.

¶ 10. On Monday morning, November 5, 1990, Jackson turned himself in to the West Point Police Department. Jackson gave a statement to Leflore County Sheriff Ricky Banks, who had been summoned to West Point. Jackson stated that, knowing his mother would be at church, he had gone to her house to get the safe because he needed more money to pay his bills. He had brought a kitchen knife with him that was in the car and when he heard someone in the house, went around the back to cut the telephone line. After stabbing Regina and the children, he tried to move the safe and to find a second safe she had mentioned. Noticing lights at the house across the street, he then climbed out the bathroom window and fled to his car.

¶ 11. Dr. Steven Hayne, who performed autopsies on the children, testified that Shunterica suffered three stab wounds to the neck and two shoulder abrasions. Her jugular vein was severed, leading Dr. Hayne to opine that she ultimately bled to death. Andrew sustained three stab wounds to the neck. The first cut through the carotid artery and the jugular vein. Another missed the trachea, but went into his backbone and severed the spinal cord. Dr. Hayne opined that such an injury “would require a considerable amount of strength” and noted the presence of a pinpoint hemorrhage caused by force on the child's neck. Dominique, too, died of multiple stab wounds to the neck. Three of the four stab wounds cut her jugular vein and trachea. Antonio suffered four stab wounds and two slash wounds which cut through his trachea. Dr. Hayne determined, however, that Antonio died from a stab wound that cut through his heart.

¶ 12. Sarah underwent surgery for five serious stab wounds to her abdomen, chest and neck, including a lacerated windpipe. Regina suffered five stab wounds to her neck. One-year-old Andrea suffered a single penetrating stab wound to her neck which caused a tracheal injury and severely damaged her spinal cord. As a result, she is unable to walk and has no fine motor control in her arms.

¶ 13. On March 12, 1991, Jackson was indicted on four counts of capital murder, two counts of aggravated assault and one count of armed robbery by a grand jury of the Leflore County Circuit Court. Under counts one through four, Jackson was charged with the deaths of two-year-old Shunterica, five-year-old Dominique, three-year-old Antonio and two-year-old Andrew. In each count, Jackson was charged with killing while engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of Section 97-5-39(2), Mississippi Code Annotated of 1972, as amended, or in any attempt to commit such felony; in violation of Section 97-3-19(2), Mississippi Code Annotated of 1972, as amended. Counts five and six charged Jackson with the armed robbery of Regina Jackson and with “unlawfully, wilfully, feloniously and purposely caus[ing] bodily injury to Regina Jackson, a human being, by stabbing said Regina Jackson with a deadly weapon, to wit: a knife.” Under Count seven, Jackson was likewise was charged with the stabbing of Sarah. Jackson was arraigned on April 29, 1991, and entered pleas of not guilty on all seven counts of the indictment.

¶ 14. Trial was set for August 26, 1991. During voir dire, Jackson's attorney and the court questioned the jurors regarding their exposure to the media coverage of the murders, especially during the days immediately before the trial. Based on the responses, the court advised Jackson's attorney that if he sought a change of venue it would be considered. On August 29, 1991, the court entered an order changing venue to Copiah County and setting the trial for September 9, 1991. The Copiah County jury found Jackson guilty on all seven counts and sentenced him to death on each of the four capital murder counts. On direct appeal we affirmed Jackson's conviction and sentence. Jackson v. State, 684 So.2d 1213 (Miss.1996), rehearing denied, 691 So.2d 1026 (Miss.1996), cert. denied, 520 U.S. 1215, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997)

¶ 15. Jackson collectively raises in his petition and application twenty alleged violations of his federal and state constitutional rights. Duplicative claims are incorporated accordingly.

Standard of Review

¶ 16. Under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2002), post-conviction review “provide[s] prisoners with a procedure, limited in nature, to review only those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Id. § 99-39-3(2) (Supp.2002); Cabello v. State, 524 So.2d 313, 323 (Miss.1988). When claims which could have been but are not presented to the trial court or to the Supreme Court on direct appeal, the claims will not be heard on post conviction review absent cause and actual prejudice. Lockett v. State, 614 So.2d 888, 893 (Miss.1992). Additionally, “[t]he doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.” Miss.Code Ann. § 99-39-21(3) (Supp.2002). In Lockett, this Court reiterated: The procedural bars of waiver, different theories, and res judicata and the exception thereto as defined in Miss.Code Ann. §§ 99-39-21(1-5) are applicable in death penalty PCR Applications. Irving v. State, 498 So.2d 305 (Miss.1986); Evans v. State, 485 So.2d 276 (Miss.1986). Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata. Irving v. State, 498 So.2d 305 (Miss.1986); Rideout v. State, 496 So.2d 667 (Miss.1986); Gilliard v. State, 446 So.2d 590 (Miss.1984). The Petitioner carries the burden of demonstrating that his claim is not procedurally barred. Miss.Code Ann. §§ 99-39-21(6) (Supp.1991); Cabello v. State, 524 So.2d 313, 320 (Miss.1988). However, “an alleged error should be reviewed, in spite of any procedural bar, only where the claim is so novel that it has not previously been litigated, or, perhaps, where an appellate court has suddenly reversed itself on an issue previously thought settled.” Irving v. State, 498 So.2d 305, 311 (Miss.1986). 614 So.2d at 893 (footnote omitted).FN3

FN3. Miss.Code Ann. § 99-39-21 (Supp.2002) states in its entirety: (1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver. (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice. (3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal. (4) The term “cause” as used in this section shall be defined and limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal. (5) The term “actual prejudice” as used in this section shall be defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence. (6) The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred under this section.

¶ 17. This Court has made clear that a petitioner seeking post-conviction relief cannot be allowed to relitigate the same issues, nor may issues not raised on direct appeal or at the trial court be reviewed. Such claims are procedurally barred.

¶ 18. Excepted from this prohibition, however, are: those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Miss.Code Ann. §§ 99-39-23(6) & -27(9) (Supp.2002). In grounds 1, 2, and 15, Jackson alleges claims based on an intervening change in the law that did not become ripe until after his direct appeal was decided.FN4 These issues will be addressed accordingly. FN4. After decision in Jackson's direct appeal, this Court granted relief in Kolberg v. State, 704 So.2d 1307(Miss.1997), based on an issue concerning the felony child abuse statute, which was identical to an issue raised in Jackson's direct appeal. In ground 2, petitioner relies on the intervening decision of West v. State, 725 So.2d 872, 895 (Miss.1998). Ground 15 rests on King v. State, 784 So.2d 884 (Miss.2001). There, this Court held that it was error for a trial judge to instruct the jury that it was not to be swayed by sympathy.

¶ 19. Finally, Jackson has raised ineffective assistance of counsel claims, the standards of reviewing which are also well-settled. As this Court stated in Woodward v. State, 843 So.2d 1 (Miss.2003): “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, 2064, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. at 2064. “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. at 2064. The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id. Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Stringer, 454 So.2d at 477, citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Defense counsel is presumed competent. See Finley v. State, 725 So.2d 226, 238 (Miss.1998), quoting Foster v. State, 687 So.2d 1124, 1130 (Miss.1996). See also Johnson v. State, 476 So.2d 1195, 1204 (Miss.1985). Then, to determine the second prong of prejudice to the defense, the standard 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. The question here is whether there is a reasonable probability that, absent the errors, the sentence-including an appellate court, to the extent it independently reweighs the evidence-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. at 2068. There is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991). Davis v. State, 743 So.2d 326, 334 (Miss.1999), citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996). 843 So.2d at 7.

Law And Analysis
1. Whether Jackson was entitled to an instruction on the lesser included offense of manslaughter.

¶ 20. Jackson claims he was entitled to a manslaughter instruction. This claim was raised on direct appeal in two separate propositions and decided adversely to Jackson. See 684 So.2d at 1226-28, 1228-29. Therefore, the claim is res judicata and cannot be relitigated. Miss.Code Ann. § 99-39-21(3). However, Jackson claims that this Court's decision in Kolberg v. State, 704 So.2d 1307 (Miss.1997), is an intervening decision which allows him to raise the claim again.

¶ 21. In Jackson's direct appeal, this Court, relying on Butler v. State, 608 So.2d 314 (Miss.1992), decided adversely to Jackson on the manslaughter instruction issue. In Butler, this Court held that failure to give manslaughter instruction was overwhelmingly prejudicial where jury ultimately found that defendant had caused child's death, but not that he either attempted to kill child or intended death. Id. at 320. Butler was charged with the murder of her child after the child presented to the hospital with severe internal injuries and died several days later. Butler argued that the CPR efforts caused the child injuries. Experts disagreed. Butler was indicted for capital murder under the felony child abuse statute. In Jackson's direct appeal, this Court distinguished Butler and held that “[a] lesser-included offense instruction is required only ‘where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.’ ” Jackson, 684 So.2d at 1228 (citing Mackbee v. State, 575 So.2d 16, 23 (Miss.1990); Boyd v. State, 557 So.2d 1178, 1181 (Miss.1989)).

¶ 22. Following Jackson, this Court again relying on Butler ruled in Kolberg, a case almost factually identical to Butler, that a trial court's failure to provide a manslaughter instruction in addition to the child abuse/capital murder instruction was reversible error because the elements of each crime were identical. 704 So.2d at 1315. Specifically, the jury ultimately found that Kolberg had caused the child's death, but it did not find that he had either attempted to kill the child, or intended that it should happen. Thus, it was apparent that the jury found the elements of the crime of manslaughter. However, they were not given that option at the guilt phase because the trial court erroneously refused to give a manslaughter instruction. Id. at 1316.

¶ 23. Kolberg announced no new rule of law that would adversely affect the conviction or sentence in the present case. It is not an intervening decision. It represents, rather, an application of existing law, Butler. Butler and Kolberg are almost factually identical, two cases in which manslaughter instructions were appropriate based on the facts; the present case is entirely distinguishable. Id. at 1315. The Butler precedent was available at the time Jackson's case was considered on direct appeal; it was employed by this Court. This Court distinguished Butler from the factual situation in Jackson's case and denied relief.

¶ 24. Further, this Court has since limited the reach of Butler to cases where there is a request by the defendant and there is evidence of manslaughter. See Berry v. State, 703 So.2d 269, 279-80 (Miss.1997). While there was a request in the present case for a manslaughter instruction, there was no evidence of manslaughter. Jackson's statement to police indicates that he planned the robbery believing that his mother and the rest of the household would be at church. His attorney conceded that the only evidence to support a heat of passion manslaughter instruction was that Jackson had gotten into a fight with Regina because she did not know the combination to the safe. However, although he used Andrea as a shield while he and Regina were struggling, there is no evidence that he stabbed the baby or killed the children at that time. Especially in light of the comment to Regina that he had come to kill them previously and was going to kill them that night, we find no basis for the requested instruction. Jackson, 684 So.2d at 1228. As this Court found, there was no evidence of manslaughter on which to base granting Jackson a manslaughter instruction. For this and the above cited reasons, Kolberg is not an intervening decision that would allow the relitigation of a claim that is res judicata. Jackson's claim for relief on this ground is without merit and is therefore denied. 2. Whether Jackson's death sentence violates the Eighth and Fourteenth Amendments of the U.S. Constitution and analogous provisions of the Mississippi Constitution and Miss.Code § 99-19-107(7).

¶ 25. Jackson submits that since the jury did not find that he “intended” to kill, he was not death eligible, and therefore his death sentence is unconstitutional pursuant to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and West v. State, 725 So.2d 872 (Miss.1998), and, that it violates Miss.Code Ann. § 99-19-101(7) (Rev.2000).

¶ 26. This claim was not raised at trial or on direct appeal and is therefore barred by the provisions of Miss.Code Ann. § 99-39-21(1). See Wiley v. State, 517 So.2d 1373, 1377-78 (Miss.1987). Therefore, this claim cannot be raised for the first time in a post conviction application unless Jackson can show cause and actual prejudice. Miss.Code Ann. § 99-39-21(4) & (5).

¶ 27. Alternatively, the claim is without merit. In Enmund, the United States Supreme Court held: [I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing will take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not. 458 U.S. at 797, 102 S.Ct. 3368 (emphasis added).

¶ 28. This holding was reiterated in Schad v. Arizona, 501 U.S. 624, 659, 111 S.Ct. 2491, 115 L.Ed. 555 (1991), stating that “in order for the death penalty to be imposed for felony murder, there must be a finding that the defendant in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used. Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).” Additionally, these requirements have been reiterated in numerous Supreme Court cases since. The finding of one of these four factors is all that is required by Enmund. To satisfy the Eighth and Fourteenth Amendments following the decision in Enmund, the Mississippi Legislature enacted Miss.Code § 99-19-101(7) (Rev.2000). See Russell v. State, 670 So.2d 816, 834 (Miss.1995) (this section was enacted in 1983 in obvious response to Enmund v. Florida ). Miss.Code Ann. § 99-19-101(7) (Rev.2000) provides: In order to return and impose a sentence of death the jury must make a written finding of one or more of the following: (a) The defendant actually killed; (b) The defendant attempted to kill; (c) The defendant intended that a killing take place; (d) The defendant contemplated that lethal force would be employed.

¶ 29. Jackson contends that pursuant to this Court's decision in West v. State, 725 So.2d 872 (Miss.1998), however, the jury was required to find not only that he “actually killed” but “intended to kill” to justify the imposition of the death penalty. In West, this Court held that “to the extent that the capital murder statute allows the execution of felony murderers, they must be found to have intended that the killing take place or that lethal force be employed before they can become eligible for the death penalty, pursuant to Enmund v. Florida, 458 U.S. 782, 796, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).” West v. State 725 So.2d at 895. Further, “the jury cannot return a death sentence at all if it cannot conclude that a capital defendant intended the death of his victim.” Id.

¶ 30. We observe that this language is contrary to the requirements of Enmund, Section 99-19-101(7), and the other case law of this Court interpreting this statute. This Court has held prior to West, and following West, that the State is required to prove at least one of the factors enumerated beyond a reasonable doubt during the sentencing phase of the trial. Jordan v. State, 786 So.2d 987, 1030 (Miss.2001); Smith v. State, 724 So.2d 280, 297 (Miss.1998); Holland v. State, 705 So.2d 307, 327 (Miss.1997). And this is all that Enmund requires.

¶ 31. The Jackson jury found that Jackson “actually killed the victim,” and that he “attempted to kill the victim.” Under Miss.Code. Ann. § 99-19-101(7) and the decisions of this Court as well as the Supreme Court of the United States, this was enough to impose the death penalty in the present case. This Court has held that the jury can be instructed on all of these factors at the conclusion of the sentencing phase and may properly find one or all. Jordan v. State, 786 So.2d at 1026. This was made absolutely clear in this Court's decision in Watts v. State, 733 So.2d 214 (Miss.1999), decided after West. Id. (Defendant could be sentenced to death based on finding that defendant actually killed victim, and jury did not have to make any further finding that defendant attempted to kill, intended to kill, or contemplated use of lethal force. Code 1972, §§ 99-19-101(7)).

¶ 32. Inasmuch as Jackson's cited portion of West is regarded as legal precedent, rather than dicta, it misstates the law. We clarify that neither Enmund nor Section 99-19-101(7) nor the according decisions of this Court require that the jury find that the defendant “intended” to kill in order to impose the death penalty upon a felony murder conviction.

¶ 33. Jackson further contends that if this Court does not grant relief on this point it would be a violation of his due process and equal protection rights. No capital defendant, including West, however, has ever obtained relief from this Court on the misstatement of the law in West.

¶ 34. This claim is barred for failure to raise the claim at trial and on direct appeal. Miss.Code Ann. § 99-19-21(1). It cannot be raised here for the first time. Alternatively, the claim is without merit. Jackson's request for relief on this basis is therefore denied. 3. Whether Jackson's eligibility for the Death Penalty based on felonious abuse and/or battery of a child violated his Eighth and Fourteenth Amendment rights under the U.S. Constitution.

¶ 35. Jackson next contends that the Mississippi death penalty scheme, as a whole, and the provisions relating to child abuse/battery capital murder are unconstitutional because they fail to narrow the death eligible class as required by Zant v. Stephens. 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (states' death penalty schemes “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.”).

¶ 36. Miss.Code Ann. § 97-3-19(2)(f) provides in pertinent part: (2) The killing of a human being without the authority of law by any means or manner shall be capital murder ... (f) [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child.... Miss.Code Ann. § 97-3-19(2)(f) (Rev.2000). Specifically, Jackson asserts that the Mississippi scheme is too broad in that it makes death eligible one who kills negligently or accidentally as long as the killing occurred during a felony. Under the child abuse/battery capital murder provision, one is death eligible regardless of intent to kill. Additionally, Jackson contends that the felony child abuse/battery provision unconstitutionally authorizes the death penalty in circumstances in which it is disproportionate to the crime.

¶ 37. As with the previous claim, this claim is barred because it was not raised at trial or on direct appeal. Nor can Jackson show cause and actual prejudice to overcome this bar. Further, this claim as it relates to the use of the underlying felony as an aggravating factor was decided against Jackson on direct appeal. 684 So.2d at 1235-36. Thus, this portion of this claim is barred as res judicata and cannot be relitigated here. Miss.Code Ann. § 99-39-21(3).

¶ 38. Alternatively, on the merits, this Court has repeatedly held that “Mississippi's capital sentencing scheme, as a whole, is constitutional.” Simmons v. State, 805 So.2d 452, 496-97 (Miss.2001). See also Puckett v. State, 737 So.2d 322, 363 (Miss.1999); Woodward v. State, 726 So.2d 524, 528 (Miss.1997). Further, this Court held in 1999 that Section 97-3-19(2)(f) is constitutional notwithstanding that it does not require deliberate design. Miller v. State, 748 So.2d 100, 103 (Miss.1999). This claim is without merit. 4. Whether Jackson was denied his rights to an independent, conflict-free, reliable and competent mental health evaluation.

¶ 39. Jackson next claims that since Michael Whelan, Ph.D., was employed by the Mississippi Department of Corrections (MDOC) and had treated Jackson for depression previously, that he was laboring under a conflict of interest. Jackson contends therefore that Dr. Whelan could not produce an independent, reliable and competent examination. Jackson also raises this issue in his Application for Leave to file Motion to Vacate Conviction and or Death Sentence in issues one and two therein.

¶ 40. This claim was raised at trial, after which Jackson was granted his motion for an additional mental evaluation. This claim was also raised on direct appeal in the context of Jackson's claim that the trial court erred in failing to grant a continuance to obtain an independent examination. This Court found no error on direct appeal. This claim, having been raised and addressed on a different legal and factual theory is nonetheless barred from relitigation. Miss.Code Ann. § 99-39-21(2). Further, since the trial court granted relief on the claim that there was a conflict, there can be no error. This claim cannot be relitigated.

¶ 41. Alternatively, on the merits, in Brown v. State, 798 So.2d 481 (Miss.2001) this Court held upon a similar claim that a petitioner “is not constitutionally entitled to the effective assistance of an expert witness. Wilson v. Greene, 155 F.3d 396, 401(4th Cir.1998). The issue is without merit.” 798 So.2d at 499.

¶ 42. As to Dr. Whelan's competence, he has been qualified, recognized and accepted as psychology expert by the courts of this State. Jackson has produced the affidavit of Dr. Chris Lott, however, who states that Dr. Whelan's reports were ineffective in that they did not have sufficient family input to adequately assist in developing mitigation evidence. However, Dr. Whelan suggested three areas of possible mitigation in his report and Dr. Lott does not even suggest any other possible area.

¶ 43. This present claim is likewise without merit. 5. Whether Jackson was compelled to incriminate himself by submitting to an examination by Dr. Whelan.

¶ 44. Jackson claims he was compelled to incriminate himself by submitting to Dr. Whelan's evaluation. This claim was not raised at trial or on direct appeal and is therefore barred from consideration here. Miss.Code Ann. § 99-39-21(1). Further, Jackson has not demonstrated any cause and actual prejudice in attempting to overcome this bar.

¶ 45. Alternatively on the merits, Jackson's claim is based merely on Dr. Whelan's conclusion that Jackson's story about how he ended up in Greenwood the night of the murders was a falsehood. The transcript makes clear that this conclusion was not based upon Dr. Whelan's prior treatment of Jackson. Having told the doctor why he was in Greenwood that night once, and, having repeated the same story on other occasions, is not self incrimination. Dr. Whelan clearly states in the record that he based his conclusion on the statement of the victims and Jackson's confession given to law enforcement.

¶ 46. Jackson is not entitled to relief on this claim.

6. Whether Jackson was denied affective assistance of counsel on direct appeal in connection with his Petition for Rehearing.

¶ 47. Jackson claims that attorney C. Jackson Williams, who filed the petition for rehearing in this case, was ineffective in failing to point out that footnote four of this Court's opinion on direct appeal was incorrect as it related to Dr. Whelan's employment with the Department of Corrections, and that this Court failed to address the issue of Jackson being in his prison attire in front of the jury venire.

¶ 48. As to Dr. Whelan's employment status, at trial, Dr. Whelan testified that he worked for the MDOC. On direct appeal, counsel for Jackson challenged the circuit court's refusal to allow him to question Dr. Whelan as to whether any complaints that Dr. Whelan had about Jackson stemmed from Jackson's reluctance to cooperate with an employee of the MDOC. This Court denied relief on this claim and added a footnote in its opinion stating that the “circuit court clarified that Dr. Whelan was not employed by the Department of Corrections,” 684 So.2d at 1231 n. 4, when in fact he was. This discrepancy notwithstanding, Jackson fails to demonstrate deficient performance and actual prejudice in counsel's failure to raise an issue about it. Having failed to prove both of these factors, Jackson cannot sustain a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jackson therefore is not entitled to relief on this claim.

¶ 49. Although raised, the prison attire issue was not addressed in the direct appeal opinion. Jackson now argues that his trial attire precipitated a “substantial danger of destruction in the minds of the jury of the presumption of innocence.” (quoting Hickson v. State, 472 So.2d 379, 383 (Miss.1979)) (concerning a handcuffed defendant). However, there is no merit to this claim as Jackson was not dressed in attire that would necessarily conjure up the image of “prisoner.” The Supreme Court of the United States has stated that prejudicial attire is “distinctive, identifiable attire,” that may affect a juror's judgment. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 131 (1976). Further, a constitutional violation may occur where a judge compels a defendant to wear such attire, thus resulting in prejudice. Id. The record reveals that Jackson's attire consisted of ordinary navy pants and a blue chambray shirt. Jackson's counsel objected at trial since the clothing was provided by the Department of Corrections, but was overruled on the basis that the clothing was not distinguishable from ordinary, everyday clothing. Further, the trial judge did not deny Jackson the opportunity to change his clothing, but recognized and explained on record that no other clothing was available.

¶ 50. While counsel who filed the petition for rehearing may have had a duty to point out that the Court failed to address this claim, Jackson fails to demonstrate both deficient performance and actual prejudice as a result as required by Strickland, 466 U.S. at 693, 104 S.Ct. 2052. We cannot conclude that had he been in alternative nondescript clothing, the outcome of his trial and sentence would be different. This claim is without merit. Jackson is not entitled to relief.

7. Whether Jackson was denied effective assistance of counsel regarding his mental health examinations and the withdrawal of an insanity defense.

¶ 51. Jackson claims that trial counsel was ineffective in failing to obtain an independent, competent and reliable mental health evaluation at an earlier date that would substantiate Jackson suffered from “brain-damage,” which he now alleges led to the murders and attempted murders. He contends that this Court so found on direct appeal. Jackson cites the following from the opinion: Given the five-month time frame in which Jackson's attorney could have filed a notice of insanity defense, voiced his objections to the evaluations by the court-appointed doctors or taken other measures to secure evaluations by psychiatrists or psychologists of his choice, and the fact that he found it necessary to withdraw the insanity defense after obtaining Dr. Summers' evaluation, we cannot say that manifest injustice resulted from the refusal to grant a continuance. 684 So.2d at 1222.

¶ 52. Jackson contends that had trial counsel objected more promptly, explained the alleged conflict of interest regarding Dr. Whelan's employment with the MDOC, and, inter alia, moved earlier to have an independent evaluator appointed, then “Mr. Jackson would have a winning claim on direct appeal with respect to the continuance issue or would have been able to present experts at trial who had sufficient time to conduct a reliable mental health evaluation.”

¶ 53. On August 21, 1991, in response to the motion for continuance, the State maintained that the defendant's psychiatrist or psychologist are not constitutionally required. The State also noted, “[i]n this case there is no suggestion of insanity. I have, in fact, asked that question. No notice has been filed.” Jackson, in fact, did not raise an insanity defense; it was abandoned because he was unable to present any evidence to create a M'Naghten question.

¶ 54. Jackson also raises in his Motion to Vacate Death Sentence that the effectiveness of counsel was interfered with when the trial court failed to appoint defense mental health experts or timely authorize funds to hire “defense” mental experts or grant a continuance. This claim is based on the assumption that Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), requires the appointment of “defense” mental experts of Jackson's choice. In Ake, the Supreme Court held that: [W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination ... This is not to say, of course that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. 470 U.S. at 83, 105 S.Ct. 1087. As mentioned, Jackson abandoned his insanity defense because he was unable to present any evidence create a M'Naghten question. Dr. Whelan, Dr. McKinley and Dr. Summers all stated that Jackson was not insane under this test. And Jackson admits this in his Memorandum in Support of Application for Leave to File Motion to Vacate Conviction and/or Death Sentence. This being so, Jackson was entitled to the court-appointed psychologist and psychiatrist according to constitutional standards, which he was provided. And indeed, the record shows that Jackson was provided with several competent mental health experts to examine him. The fact that they could not say he was insane nor that the M'Naghten test could not be met is not a flaw in defense counsel's performance. Defense counsel cannot force a physician to come to any particular medical or scientific conclusion. Jackson cannot therefore show deficient performance of counsel nor, by virtue of that inability, any resulting prejudice. Morever, this very issue was addressed on direct appeal and is therefore procedurally barred. This bar notwithstanding, the claim is without merit.

8. Whether Jackson's trial counsel failed to develop and present evidence in mitigation of punishment.

¶ 55. Jackson next contends that trial counsel was ineffective in failing to produce additional mitigation evidence during the sentencing phase of trial. Jackson contends that trial counsel should have introduced evidence of his “chaotic family history, his solid employment history and other evidence that would have garnered sympathy.”

¶ 56. This claim is without merit. Trial counsel called seven mitigation witnesses including Dr. Whelan and Jackson's probation officer. These witnesses testified as to Jackson's self elected choice to turn himself in, his remorse, his anger disorder, potential metabolic disorders, toxic disorders and traumatic brain injury, Jackson's I. Q.-being in the low eighties-that Jackson was intellectually slow, and, inter alia, that prior to Jackson's crime he did not have a persuasively criminal or anti-social personality.

¶ 57. Family members testified indicating their love for and forgiveness of Jackson, that they knew of several head injuries he sustained, and something was mentally wrong with Jackson. Jackson's sister, the mother of two of the murdered children, testified that she was hurt and angry, that Jackson should be punished, but not put to death. She stated that she met with Jackson following the murders, that she had forgiven him and that she still loved her brother.

¶ 58. Jackson's mother testified to numerous childhood head injuries related to sports and work. She testified to how supportive Jackson had been of her financially, that he would often buy her groceries and supplies. She testified that Jackson should be punished but not sentenced to death.

¶ 59. Finally, Dr. Summers was called to testify. He testified to numerous head injuries, blackouts, major depression, intermittent explosive episodes of anger, that Jackson had complex partial-seizure disorder and potential adverse pharmaceutical reactions.

¶ 60. Given this testimony, we are unpersuaded that had any other witnesses been called, the outcome of Jackson's sentence would be different. Indeed, Jackson fails to demonstrate a reasonable probability that the result of the sentencing phase would have been different had there been any other mitigation evidence. Therefore, Jackson does not demonstrate deficient performance of counsel and actual prejudice as required by Strickland and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Jackson therefore is not entitled to relief on this claim.

9. Whether Jackson was denied effective assistance by counsel's failure to object to the testimony of the court-appointed expert on an ultimate issue of law.

¶ 61. Jackson contends that trial counsel was ineffective for failing to object to a comment on responsibility by Dr. Whelan during the State's cross-examination during the sentencing phase. Specifically, the prosecutor attempted to get Dr. Whelan to distinguish between his opinion that Jackson was responsible for his actions and the mitigating factors he suggested in his report. He was not, in doing so, making a comment on the ultimate issue of responsibility as Jackson contends and as the record reveals: By Mr. Crook: If I am understanding your report to the Court and your testimony, his actions and emotions that you found to be present had nothing to do with his responsibility is that correct? A. Not in a legal sense, no. Neither you nor Mr. Walls has really asked me to explain my psychological testing and why that led him to do what he did. But in a legal sense, no. He is responsible for what he did. Q. Well, in mitigating factors, if I understand you correctly, are that his history prior to arrest is relatively stable, means he doesn't have any problems as far as- A. He is married for several years, three of four years and is raising a family, had his own children, had a steady job, that is what I mean by that. He wasn't going out and robbing stores and beating up people. As to responsibility, in any case, the jury had already found Jackson guilty. Moreover, trial counsel raised the underlying claim on direct appeal and this Court held it barred for failure to object at the time. See 684 So.2d at 1231. The claim remains barred.

¶ 62. Alternatively, Jackson does not show deficient performance and actual prejudice as required to establish a claim for ineffective assistance in counsel's failure to object to the comment. We conclude there is no reasonable probability therefore that but for the failure to object, the result of the sentence phase would have been different. Jackson fails to satisfy Strickland on this claim and is not therefore entitled to relief.

10. Whether Jackson was competent to stand trial and, in the alternative, whether trial counsel was ineffective for failing to object to this issue below.

¶ 63. Jackson next contends that because he was too depressed to complete a neuropsychological screening test that he was incompetent to assist his attorneys and therefore incompetent to stand trial. This claim was not raised at trial or on direct appeal and is therefore barred under Miss.Code Ann. § 99-39-21(1).

¶ 64. Alternatively, Jackson was examined by two experts and found competent to stand trial. Although one doctor found him not, there is no mention in that doctor's report for purposes of this application that Jackson was not competent. The report of the two doctors that found Jackson competent are sufficient to overcome this claim on the merits. Jackson is not entitled to relief on this claim.

11. Whether Jackson was denied his right to be present during trial and personally confront the witnesses against him and, in the alternative, whether trial and appellate counsel were ineffective in handling these issues.

12. Whether the trial court erred in not holding a hearing to determine whether Jackson was competent to waive his right to be present and, in the alternative, whether trial and appellate counsel were ineffective for not raising the issue.

¶ 65. These issues are closely related and are therefore addressed together. First, Jackson claims he was denied his right to be present at trial. Second, he claims that the trial court should have held a competency hearing to determine whether he was competent to waive his presence at trial. Neither of these claims were raised at trial or on direct appeal and are therefore barred by Miss.Code Ann. § 99-39-21(1), and cannot be raised for the first time in this application for post-conviction relief.

¶ 66. Alternatively on the merits and as to effective assistance, the record reflects that Jackson left the courtroom of his own free will in each instance. The record also makes clear that he was competent to waive his right to be present as all of his departures resulted from trial times during which evidence or testimony was presented illustrating the damage he caused his victims. The trial court discussed the matter with Jackson and Jackson's counsel and allowed him to leave upon presentation of this often gruesome evidence. Further, the trial court stated that it would instruct the jury that Jackson had the right to leave and that no inference should be drawn from his absence.

¶ 67. Following the testimony of Officer Bowles, trial counsel reported that Jackson was sick and vomiting. The court requested that Jackson brought into the courtroom to be questioned. Jackson said he had not eaten, that he however did not need a doctor, and waived his presence. After the next witness, counsel moved to continue, which the court denied because Jackson had waived his presence. Jackson's departures from the courtroom were consistently related to the presentation of evidence regarding his victims. And the record reflects consistent court inquiry each time.

¶ 68. Finally, the record shows that Jackson voluntarily absented himself during the reading of portions of his confession. The trial court stated: BY THE COURT: The court watched him and he left voluntarily. I was looking at him. He left on Page 13 and 17. I noted it and put that in the record. And he has left several times. He has informed the Court that he wished to at certain points leave. The Court gave him that permission and told him that it was his absolute right to be there but I could not require him to be there.

¶ 69. Jackson claims that trial and appellate counsel were ineffective in failing to raise these issues. Based on the record of Jackson's voluntary departures from the courtroom, however, this claim is without merit. Jackson cannot show deficient performance or actual prejudice; and there is no reasonable probability that had Jackson been present at every moment of the trial, the outcome of his trial or appeal would be different.

¶ 70. These two claims are barred from consideration for the first time here. Jackson has not established the required cause and actual prejudice to overcome this bar. Jackson is not entitled to relief on these claims.

13. Whether Jackson rights were violated due to improper prosecutorial argument and, in the alternative, whether counsel was ineffective for failing to object to the allegedly improper arguments.

¶ 71. Jackson claims that the prosecution made improper jury arguments based on the Bible and biblical teachings. Specifically, the claim is that the prosecutor improperly asked the jury to follow God's law, citing it as “extrajudicial authority,” and as such the prosecutor engaged in an impermissible “misstatement of the law.” The record reveals that the prosecutor related to the jury the story of the ancient King Herod who, according to the Bible, ordered that every child under the age of two be put to death. Additionally, the prosecutor stated that “God's law in the beginning was, if you commit a willful murder, that you should be put to death.” No objection was raised at trial or on direct appeal. Therefore this claim is barred by Miss.Code Ann. § 99-39-21(1) and cannot be raised here for the first time.

¶ 72. Alternatively, this Court has held that arguments with scriptural, religious or biblical references are proper subjects for comment during closing, especially when they are responsive to those of defense counsel. Berry v. State, 703 So.2d 269, 281 (Miss.1997); Carr v. State, 655 So.2d 824, 853 (Miss.1995); Hansen v. State, 592 So.2d 114, 139-40 (Miss.1991); Shell v. State, 554 So.2d 887, 899 (Miss.1989) rev'd on other grounds, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990); Nixon v. State, 533 So.2d 1078, 1100-01 (Miss.1987), overruled on other grounds, Wharton v. State, 734 So.2d 985 (Miss.1998). During the defense closing, the record reflects that Jackson's counsel made religious-based arguments. Jackson's claim that counsel was ineffective therefore in failing to object to the biblical references is without merit.

14. Whether other prosecutorial arguments and comments violated Jackson's rights and misinformed and misdirected the jurors on the law; in the alternative, whether counsel was ineffective for not objecting to the prosecutorial misconduct.

¶ 73. Jackson claims the prosecutor improperly commented on Jackson's failure to take the stand and testify, gave an incorrect explanation of the nature of mitigation, misled the jury as to mitigating factors, offered her personal opinion on the quality and credibility of defense witnesses during the sentencing phase, and that trial counsel was ineffective for failing to object to the statement that Jackson had been convicted of kidnaping.

¶ 74. Jackson correctly notes that this Court barred these claims on direct appeal since no objection was raised at trial. See 684 So.2d at 1226. This being so, the claims are still barred by Miss.Code. Ann. § 99-39-21(1). Further, since this Court has decided these claims on direct appeal, although on the basis of the procedural bar, they are now res judicata under Miss.Code. Ann. § 99-39-21(3) and cannot be relitigated.

¶ 75. Attempting to overcome this bar under the cause and prejudice standard, Jackson claims counsel was ineffective by not objecting to the prosecutor's conduct. Jackson has not shown, however, that counsel was deficient and that he suffered actual prejudice as required by Strickland.

a. Comment on the failure to testify. ¶ 76. On direct appeal, this Court addressed the merits of this claim and found “no such allusions in the portions of the trial transcript cited by the appellant.” 684 So.2d at 1226. This claim has been addressed and should not therefore be addressed again on the merits here.

b. Explanation of nature of mitigation. ¶ 77. Jackson claims the prosecutor incorrectly informed the jurors of the law of child abuse at the sentencing phase. Specifically, she did not argue that the abuse had to be intentional. Even if she so argued, the jury was properly instructed on the law by the trial court and also instructed that counsel arguments were just arguments and not to be used as the law. Given this fact, Jackson cannot show that he was prejudiced here and cannot therefore sustain an ineffective assistance claim as required by Strickland.

c. Misleading comments regarding the existence of mitigating factors. ¶ 78. The prosecutor also argued that there was nothing “which mitigates these crimes.” Jackson complains. The prosecutor, however, is entitled to rebut any evidence and argue that it is not worthy of consideration. See, e.g., Wiley v. State, 750 So.2d 1193, 1202 (Miss.1999); Evans v. State, 725 So.2d at 676. Further, since the jury was properly instructed on how to consider mitigating evidence, Jackson cannot sustain a claim of ineffective assistance because he cannot demonstrate actual prejudice in light of the fact that such instruction was given.

d. Arguments of facts not in evidence. ¶ 79. Jackson argues that counsel was ineffective in failing to object to the prosecutor's misstatement during closing that Jackson had been previously convicted of kidnaping. This Court noted on direct appeal, however, that those charges had been dropped and that a certified copy of Jackson's burglary conviction had gone to the jury. 684 So.2d at 1236. Therefore, any misstatement the prosecutor made on this topic was not prejudicial as the jury actually knew from the conviction introduced that it was burglary with the intent to commit kidnaping. Further, counsel objected at trial to the characterization of the prior crime as a conviction for kidnaping during the cross-examination of Dr. Summers. The jury heard this objection and the judge's ruling.

¶ 80. That trial counsel failed to object during closing does not demonstrate, in the face of the introduced burglary conviction, that Jackson was prejudiced. Moreover, there is nothing in the record or in Jackson's brief to suggest that, but for counsel's failure to object, the outcome of Jackson's conviction or sentence would be different as required by Strickland.

e. Comment on the quality and credibility of the evidence.

¶ 81. Jackson claims that the prosecutor improperly commented on the quality and credibility of defense witnesses during the sentencing phase when she stated that she “questioned the sincerity of forgiveness.” The transcript reflects the context in which this statement was made-she was referencing her actual line of questioning during cross-examination of those witnesses: Counsel tells you that all of those mothers and family members forgive him. And, I think that's interesting, ladies and gentlemen, because they say they forgive him but they still think he should be punished. And I questioned the sincerity of that forgiveness. I know what Regina told you. She couldn't forgive everything he did. The family has some interesting explanations for why he did what he did ...

¶ 82. The record reflects that the prosecutor questioned each witness as to their sincerity of forgiveness during cross-examination. This was not a reflection of her personal opinion. Jackson fails to demonstrate that counsel actually had a basis to object here and, therefore, that counsel was deficient for not doing so resulting in prejudice to his case, as required by Strickland.

¶ 83. All of these claims are barred by Miss.Code Ann. § 99-39-21(1) & (3), and in addition do not demonstrate ineffective assistance of counsel by deciding not to object. Jackson is not therefore entitled to relief on these claims. 15. Whether the trial court's instructions to the jury regarding sympathy violated Jackson's rights and, in the alternative, whether trial counsel was ineffective for not objecting to them.

¶ 84. Jackson claims that the jury instruction to disregard sympathy, part of an approved long-sentencing instruction, was given by the court in error. Additionally alleged as error is the judge's comment to the jury that “your decision must not be influenced by sympathy or by any bias or prejudice based on race, religion, color or any such matter.” The instruction reads in part: You should consider and weigh any aggravating and mitigating circumstances, as set forth later in this instruction, but you are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.

¶ 85. This claim was addressed in the context of the failure to grant a mercy or sympathy instruction to the jury by this Court on direct appeal and found to be without merit. See 684 So.2d at 1239. It is therefore barred as res judicata by Miss.Code Ann. § 99-39-21(3).

¶ 86. Jackson attempts to overcome this bar, however, by claiming that King v. State, 784 So.2d 884 (Miss.2001), is an intervening decision requiring relief on this claim. It is not.

¶ 87. In King, we held that it was reversible error for the court to instruct the jury that sympathy should have no part whatsoever in its deliberations and to have told counsel that he “couldn't ask for sympathy in any way.” Id. Indeed, this Court has repeatedly held that under the Eighth Amendment to the U.S. Constitution, “a jury may not be instructed to disregard, in toto, sympathy.” Pinkney v. State, 538 So.2d 329, 351 (Miss.1988), vacated and remanded on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). Such is not the circumstance with the present instruction. There is no instruction to the jury that it must totally disregard sympathy. Further, the present instruction and similar instructions have been approved by this Court many times. Woodward v. State, 843 So.2d at 19; Jordan v. State, 786 So.2d at 1025; Evans v. State, 725 So.2d at 690-91 (Miss.1997); Bell v. State, 725 So.2d 836, 865 (Miss.1998); Holland v. State, 705 So.2d 307, 351-52 (Miss.1997); Blue v. State, 674 So.2d 1184, 1224-25 (Miss.1996). This claim is without merit.

¶ 88. Jackson claims that should this Court not find King intervening, trial counsel was ineffective in failing to object to the sentencing instructions and failing to object to the prosecutor's comment that Jackson did not deserve sympathy. But this is not improper since the defense argued that Jackson did deserve sympathy. The prosecutor's comment was made in rebuttal. This Court has held that the State is allowed to make its case for the death penalty. See King v. State, 784 So.2d at 889-90 (“Clearly, it is appropriate for the defense to ask for mercy or sympathy in the sentencing phase. It is equally appropriate for the state to further its goal of deterrence by arguing to ‘send a message’ in the sentencing phase. Both of these arguments are recognized as legitimate considerations to be hade by those who argue ‘for or against’ the death penalty.”).

¶ 89. This claim is barred by Miss.Code Ann. § 99-39-21(2) & (3) and is alternatively without merit. Contrary to Jackson's claim, the jury was not instructed to totally disregard sympathy. Jackson can neither demonstrate deficiency of counsel nor actual prejudice therefore. Jackson is not entitled to relief on this claim.

16. Whether Jackson's rights were violated due to cumulative trial error. ¶ 90. Jackson claims that “[s]everal errors discussed above cannot be harmless.” We first observe that all of Jackson's claims, including this one, have already been litigated. 684 So.2d at 1239. They cannot be relitigated here. Miss.Code Ann. § 99-39-21(3). Alternatively they are without merit. Nor has Jackson raised a viable claim of ineffective assistance of counsel.

Conclusion

¶ 91. Jackson's petition for post-conviction relief and application for leave to file motion to vacate conviction and/or death sentence, as supplemented, are denied.

¶ 92. PETITIONS FOR POST-CONVICTION COLLATERAL RELIEF, DENIED. PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

Jackson v. Epps, 447 Fed.Appx. 535 (5th Cir. 2011). (Habeas)

Background: Following affirmance, 684 So.2d 1213, of his Mississippi conviction on four counts of capital murder, and the denial, by the Mississippi Supreme Court, 860 So.2d 653, of his motion for post-conviction relief, defendant petitioned for writ of habeas corpus. The United States District Court for the Northern District of Mississippi, 2010 WL 3853158, denied the petition but granted a certificate of appealability (COA).

Holdings: Defendant appealed and moved to expand the COA. The Court of Appeals held that: (1) defendant was procedurally barred from raising issue of his alleged deprivation of his right to be present at trial on federal habeas review, and (2) expansion of COA was not warranted. Affirmed, and motion denied.

PER CURIAM:

Petitioner–Appellant Henry Curtis Jackson, Jr. (Jackson), was convicted in Mississippi of capital murder for the 1990 murders of four of his nieces and nephews. He filed a petition for habeas relief in the United States District Court for the Northern District of Mississippi. The district court denied habeas relief on all grounds raised, but granted a Certificate of Appealability (COA) on whether Jackson was improperly denied his right to be present at all stages of trial. Jackson subsequently filed a motion to expand the COA with this court. We AFFIRM the district court's denial of habeas relief and DENY Jackson's request for an expanded COA.

I. BACKGROUND
A. Facts On

November 1, 1990, Martha Jackson and four of her grandchildren left her home to attend church services. Her daughter, Regina Jackson, stayed home with her daughters Dominique, age five, and Shunterica, age two. Four of Regina's nieces and nephews also stayed home from church services—eleven-year-old Sarah, three-year-old Antonio, two-year-old Andrew, and one-year-old Andrea. At some point that evening, Jackson, Regina's brother, knocked on the door. Regina let Jackson into the house. He asked her to give him a cigarette and to mix him a remedy for an upset stomach. Shortly thereafter, Jackson asked Regina why the telephone was not working, and she discovered that the telephone line was dead. Regina and Antonio left to report the telephone problem at a neighbor's house, but Sarah called them back at Jackson's request. When Regina returned to the home, Jackson asked her if any of the children could talk. She told him that they could, and he told her to take them into one of the bedrooms, which she did.

After Jackson asked Regina what she did with the money from her pay check, Regina stated at trial that Jackson grabbed her from behind and told her that “he wanted twenty dollars for some ass.” When Regina told him that she did not have the money, he stabbed her with a knife. Hearing Regina's calls for help, Sarah jumped onto Jackson's back. Regina testified at trial that she began pleading with Jackson not to kill them as all three struggled, and that Jackson told her “I love you but I have got to kill you.” By all accounts, Jackson was at the home that evening in order to get money from a safe that his mother kept in her closet. Regina testified at trial that Sarah told him to get the safe and leave and Jackson replied that “he came to kill us that Thursday and didn't kill us and he came to kill us that Saturday and he didn't kill us and he said he was going to kill all of us tonight.” Jackson took Regina and Sarah into one of the bedrooms in order to get the combination to the safe, and he began stabbing Sarah in the neck. He then took them into another bedroom and began to tie them up when Regina began striking him with some iron rods that were in the bedroom. She stopped when Jackson picked up one of the children, Andrea, and began to use her as a shield.

Regina let Jackson tie her up, and he stabbed her again in the neck. Jackson also stabbed Antonio and Shunterica. Regina stated that she began to go in and out of consciousness, but she remembered hearing Jackson dragging the safe down the hallway. The noise woke Dominique, who began calling for Regina. Regina testified that Jackson called Dominique to him, told her that he loved her, stabbed her, and tossed her body to the floor. Jackson returned to Regina, stabbing her in the neck and twisting the knife, at which point she pretended to be dead until she heard him leave. Members of the Leflore County Sheriff's Department responded to Martha Jackson's home, where they discovered Regina and the children. Dominique, Shunterica, Antonio, and Andrew were pronounced dead at the scene. Andrea, Sarah, and Regina survived, but required extensive surgery to repair the damage from their stab wounds.

After fleeing the scene, on November 5, 1990, Jackson turned himself in at the West Point, Mississippi Police Department and was placed under arrest. At that time, Jackson was read his rights, executed a waiver of rights, and gave a statement. Later, Jackson gave an audiotaped statement concerning the events that took place at Martha Jackson's home. In his statement, which was admitted at trial, Jackson said that he went to his mother's house to get the safe, and that he knew his mother would be at church services at the time. He said that he cut the telephone lines with a knife that he brought with him and that he unsuccessfully attempted to remove the safe from the house after he stabbed Regina and the children. He fled and ran to his car, which was parked a short distance from the house.

B. Procedural History

On March 12, 1991, Jackson was indicted by the Circuit Court of Leflore County, Mississippi on four counts of capital murder while engaged in the commission of the crime of felonious child abuse, two counts of aggravated assault, and one count of armed robbery. He was charged with the capital murder of four of his nieces and nephews. He was charged with the armed robbery and aggravated assault of Regina and the aggravated assault of Sarah. He pled not guilty to all seven counts of the indictment. Trial was set in Leflore County for August 26, 1991. During the course of voir dire, defense counsel Johnnie Walls (Walls) sought and obtained a change of venue. Jackson's trial began on September 9, 1991, in the Copiah County, Mississippi Circuit Court. Jackson was convicted and sentenced to death on all four counts of capital murder. Jackson then filed for direct appeal to the Mississippi Supreme Court. On January 18, 1996, the supreme court affirmed the trial court's judgment. Jackson v. State, 684 So.2d 1213 (Miss.1996). The supreme court denied Jackson's subsequent petition for rehearing on December 5, 1996. Jackson v. State, 691 So.2d 1026 (Miss.1996). Jackson then sought relief by filing a petition for writ of certiorari with the United States Supreme Court. On May 12, 1997, the Court denied certiorari. Jackson v. Mississippi, 520 U.S. 1215, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997).

On May 8, 1998, Jackson filed an application for post-conviction relief with the Mississippi Supreme Court. On August 7, 2003, the supreme court rendered its opinion denying state post-conviction relief. Jackson v. State, 860 So.2d 653 (Miss.2003). A petition for rehearing was filed and later denied on December 18, 2003. On the same day, Jackson filed his petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi. On September 28, 2010, the district court entered a final judgment and memorandum opinion denying habeas corpus relief on all grounds. However, the district court granted a COA on Jackson's claim that he was improperly denied his constitutional right to be present at all stages of trial. After submitting his briefing on the issue certified by the district court, Jackson filed a motion to expand the COA with this court. He now seeks a COA on three additional grounds. Accordingly, our analysis proceeds in two steps. First, we address the issue certified by the district court. Second, we address Jackson's request for an expanded COA.

II. ANALYSIS
A. Certified Issue

The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the states via the Fourteenth Amendment, guarantee to a criminal defendant “the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Tennessee v. Lane, 541 U.S. 509, 523, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (citation omitted). The right to be present, however, is not absolute and can be waived by the voluntary absence of the defendant. Taylor v. United States, 414 U.S. 17, 19–20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); see also Clark v. Scott, 70 F.3d 386, 388 (5th Cir.1995). However, the waiver of a constitutional right is not effective unless the right is intentionally and knowingly relinquished. See Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Immediately prior, after, or during testimony that detailed the facts of the murders, Jackson left the courtroom or the courthouse. Specifically, Jackson left: (1) prior to the testimony of the crime scene investigator who narrated video footage of the crime scene; (2) during or immediately after the testimony of the surgeon who treated Sarah and Regina; (3) prior to the testimony of the pathologist who examined the bodies of his nieces and nephews; and (4) during the playing of his taped confession.FN1 Jackson claims that he was denied his right to be present when he left the courtroom, because his waivers did not comport with Zerbst. He claims that the state trial court failed to explain to him the rights he was relinquishing by leaving the courtroom. Jackson further contends that the supreme court ignored the fact that he may not have been able to competently waive his right to be present.

FN1. During post-conviction review, Jackson contended that there was a fifth absence from trial when the state trial court ordered him from the courtroom. However, he has not made that specific argument to this court. To the extent that he does make this argument, it is clear from the record that the defendant was present at trial. The portion of the transcript that Jackson uses to support his argument that the state trial court removed Jackson from the courtroom is clearly a transcript error. Looking to the record, Eddie Self, Jackson's half-brother, had just concluded his testimony. Self was an inmate at the Mississippi State Penitentiary in Parchman, Mississippi, during the trial. At the conclusion of his testimony, the State excused Self, and trial counsel requested that he be held for possible testimony during the penalty phase of the trial. The trial court's response was, “tell them to take him on back to jail.” Immediately afterwards, the court reporter's parenthetical states, “[d]efendant taken back to jail;” however, it is clear from the context of the record that it was Self that was being sent back to jail. Thus, the notation of the court reporter that Jackson was “present in the courtroom” later in the transcript is correct.

During post-conviction review, the Mississippi Supreme Court held that the claim was procedurally barred because Jackson raised the argument for the first time in his petition for post-conviction relief. Jackson raised the issue again in his petition for federal habeas relief. The district court held that the claim was procedurally barred, but certified for our review the issue of whether the state trial court improperly denied Jackson's right to be present at all stages of trial (hereinafter right to be present claim). We do not reach the merits of Jackson's right to be present claim because he has not exhausted the claim and has not overcome the procedural bar to our review.

1.

Whether a federal habeas petitioner has exhausted his state remedies is a question of law that is reviewed de novo. Scott v. Hubert, 635 F.3d 659, 667 (5th Cir.2011). The limits of federal habeas review are codified in the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§ 2241–55. Under AEDPA, “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If a claim is not exhausted, the claim is procedurally defaulted. See Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir.2002). There are two ways that a habeas claim can be procedurally defaulted. See Rocha v. Thaler, 626 F.3d 815, 820 (5th Cir.2010). “First, if the prisoner has never fairly presented that claim to the highest available state court, the claim is unexhausted.” Id. “Second, if the prisoner has presented the claim to the highest available state court but that court has dismissed the claim on a state-law procedural ground instead of deciding it on the merits,” the claim is procedurally defaulted. Id. After carefully reviewing the record, we conclude that Jackson has not exhausted his claim because, as the district court correctly held, the claim was dismissed on state-law procedural grounds.

Subsection 99–39–21(1) of the Mississippi Code explains that, if a defendant fails “to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States,” the argument is waived and is procedurally barred from review. Miss.Code § 99–39–21(1) (emphasis added). Jackson acknowledges that he did not raise his right to be present claim on direct appeal. Jackson instead argues that the claim was raised at trial when his trial counsel, Walls, moved for a continuance after Jackson asked to leave the courtroom on one occasion. Therefore, subsection 99–39–21(1) does not preclude review of his claim. We disagree. The record indicates that Walls never mentioned a defendant's right to be present at trial or any related constitutional amendment or federal law. After Jackson voluntarily left the courtroom, Walls merely asked the court to continue the case so that Jackson could assist him with his defense. This is not equivalent to arguing that Jackson was denied his constitutional right to be present at trial. Thus, Jackson's right to be present claim was procedurally defaulted under subsection 99–39–21(1) because it was not raised at trial or on direct appeal. Because Jackson did not exhaust his right to be present claim, we next determine whether he has presented grounds sufficient to overcome the procedural bar to our review of the claim.

2.

There are two exceptions to the general rule that a federal court cannot review the merits of a state prisoner's procedurally-defaulted habeas claim. Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). First, a federal court can review the merits of a petitioner's claim if the prisoner can show cause for the procedural default and that he was prejudiced by the default. Coleman v. Thompson, 501 U.S. 722, 749–50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Second, a federal court can review the merits of the claim if the prisoner can show that a failure to do so would result in a fundamental miscarriage of justice. Id. Jackson does not contend that he can establish that there was a fundamental miscarriage of justice. Therefore, our primary inquiry is whether Jackson has shown cause and prejudice. Id. In order to demonstrate cause, a petitioner must show “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Prejudice may be demonstrated by showing that the errors “worked to [the petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494, 106 S.Ct. 2639 (internal quotation marks omitted). If the court determines that the petitioner established the requisite cause and prejudice, the court should then examine the merits of the claim for habeas relief. Jackson argues that, to the extent that any state court procedural bar exists, Walls's ineffectiveness as Jackson's trial counsel and counsel on direct appeal is sufficient to overcome the procedural bar. Jackson argues that Walls was deficient at trial because he (1) failed to seek, or to prosecute, a competency hearing with respect to Jackson's alleged waiver of his right to be present at trial (hereinafter competency hearing claim) and (2) failed to preserve the denial of Jackson's right to be present at trial. With regard to counsel's alleged deficient performance on direct appeal, Jackson contends that Walls's failure to assign the denial of the right to be present on direct appeal is deficient performance in the absence of a strategic decision to omit the claim.

(a) Competency Hearing Claim

Jackson improperly raises his competency hearing claim in the context of his arguments about the procedural bar to our review of his right to be present claim. Only the right to be present claim, as it relates to Jackson's ineffective assistance of counsel claim, was certified for review. Specifically, Jackson raised the following issues during post-conviction review:

GROUND K. Petitioner was denied his right to be present during trial and personally confront the witnesses against him and, in the alternative, whether trial and appellate counsel were ineffective in handling these issues.

GROUND L. The trial court erred in not holding a hearing to determine whether Jackson was competent to waive his right to be present and, in the alternative, whether trial and appellate counsel were ineffective for not raising the issue.

During federal habeas review, the district court granted a COA on the right to be present claim, but not the competency hearing claim. Although Jackson raises the competency hearing claim in conjunction with his attempt to overcome the procedural bar to his right to be present claim, the court's review is limited to the sole issue in the COA granted by the district court. See Lackey v. Johnson, 116 F.3d 149, 151–52 (5th Cir.1997). Therefore, our analysis focuses on Jackson's ineffective assistance arguments only so far as they relate to Jackson's right to be present claim.

(b) Right to be Present Claim

As previously explained, a defendant can overcome a procedural default if he can show cause for the procedural default and that he was prejudiced by the default. See Coleman, 501 U.S. at 749–50, 111 S.Ct. 2546. Ineffective assistance of counsel on direct appeal can constitute “cause” sufficient to overcome a procedural bar. See Hatten v. Quarterman, 570 F.3d 595, 605 (5th Cir.2009) (citing Murray, 477 U.S. at 488–89, 106 S.Ct. 2639). To prevail on this claim, a defendant must establish that (1) counsel's performance was so deficient that it cannot be said that he was functioning as “counsel” within the meaning of the Sixth Amendment, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the Mississippi Supreme Court adjudicated Jackson's ineffective assistance of counsel claim on the merits, AEDPA mandates that we defer to the supreme court's application of Strickland, unless the decision: (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Thus, our ineffective assistance of counsel inquiry is not “whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011).

As previously explained, Jackson argues that his counsel was allegedly ineffective because he failed to preserve Jackson's claim that the trial court denied his right to be present at trial. Even assuming that Jackson established that Walls's performance was deficient, Jackson cannot establish that he was prejudiced because, as the record clearly indicates, each time Jackson left the courtroom he knowingly and voluntarily waived his right to be present. In other words, Jackson cannot argue that he was prejudiced by Walls's alleged inaction to protect a right that Jackson chose to waive. Prior to any of Jackson's absences, Walls discussed with the trial court the possibility of Jackson being absent from the courtroom during certain testimony that would be “tough” for him to hear. The trial court explained that Jackson had the right to be present, but only Jackson could waive that right. Thereafter, each time Jackson chose to leave the courtroom, he either approached the bench and, outside the hearing of the jury, informed the court of his desire to leave or left of his own accord. Consistent with Zerbst, each time Jackson left the courtroom, he was on notice that he had the right to be present and that he could waive that right. Each time he left the courtroom Jackson advised the court that he wanted to waive his right.

Specifically, before Jackson's first absence, the trial court explained that he had the right to be present at all times, told him that he could waive that right, and asked Jackson directly if he wished to do so. Jackson responded in the affirmative. During Jackson's second and third departures, the trial court again asked Jackson directly if he wished to waive this right. Each time Jackson responded in the affirmative. The only deviation from this pattern occurred when Jackson, without approaching the bench, left the courtroom during the reading of his taped confession. However, by this time, Jackson was already informed of his right to be present and that he could waive that right. Thus, he left the courtroom fully aware of his rights. The gravamen of Jackson's argument is that he had a right to be present at trial and the trial court deprived him of that right. However, Jackson cannot complain that Walls was deficient when he failed to protect this right because the record indicates that Jackson knowingly and voluntarily waived his right to be present. Thus, we conclude that no reasonable argument can be made that Jackson's counsel was deficient. Accordingly, Jackson has not established that he received ineffective assistance of counsel and has not made the requisite showing to overcome the procedural bar to our review of his right to be present claim.

B. Motion to Expand the COA

This court will issue a COA when the petitioner makes “a substantial showing of the denial of a constitutional right” by demonstrating (1) “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,” Mitchell v. Epps, 641 F.3d 134, 142 (5th Cir.2011) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), or (2) “that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Id. In making the decision whether to grant a COA, this court's examination is limited to a “threshold inquiry,” which consists of “an overview of the claims in the habeas petition and a general assessment of their merits.” Miller–El v. Cockrell, 537 U.S. 322, 327, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Jackson requests an expanded COA on three issues: (1) whether he was entitled to a lesser-included offense instruction; (2) whether the state trial court denied Jackson his right to an independent, reliable, and competent mental health evaluation; and (3) whether Jackson's trial counsel was ineffective for (a) failing to develop and present mitigating evidence, and (b) failing to secure a timely and competent mental health evaluation. We address each of these issues in turn.

1.

Jackson argues that the state trial court should have allowed the jury to consider the lesser-included, non-capital offense of manslaughter, pursuant to the United States Supreme Court's decision in Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (hereinafter lesser-included offense claim). We disagree. Beck stands for the proposition that juries in capital cases must have the opportunity to consider a lesser-included noncapital offense when the evidence would have supported such a verdict. See Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Here, the evidence does not establish that Jackson was entitled to a lesser instruction. Jackson was indicted and found guilty of four counts of capital murder, pursuant to section 97–3–19 of the Mississippi Code, for committing the “crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97–5–39.” Jackson claims that the district court and state courts erred in holding that he was not entitled to an instruction on the lesser-included offenses articulated in subsection 97–3–27(2) and section 97–3–35, both homicide statutes that require a showing that the defendant acted “without malice.”

Under Mississippi law, a party acts with malice if the act is done with “deliberate design.” Tran v. State, 681 So.2d 514, 517 (Miss.1996). Here, there is substantial evidence that Jackson acted with malice. Notably, on the day of the murders, Jackson cut the phone line to his mother's house before entering the house. Jackson even inquired of his sister to make sure the phones did not work. Jackson also asked if the children could talk before he committed the murders. Furthermore, Jackson told his sister that he came on two previous occasions to kill them and that this time he was going to kill them all. Thus, the district court's determination, on Jackson's lesser-included offense claim, is not debatable or wrong and does not necessitate further discussion. See Mitchell, 641 F.3d at 142. Accordingly, we deny Jackson's request to expand the COA to include his lesser-included offense claim.

2.

Jackson claims that the state trial court's decision to appoint Dr. Michael Whelan, a psychologist, to conduct Jackson's mental health evaluation was an unreasonable application of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (hereinafter Ake claim). Jackson explains that Whelan, who at the time was an employee of the Mississippi Department of Corrections (MDOC), treated him for depression prior to trial. Therefore, Jackson contends, Whelan had a conflict of interest and was not competent to make an independent and reliable psychological examination of Jackson. This argument is without merit. As an initial matter, we note that Jackson's Ake claim is not procedurally barred. On post-conviction review, the Mississippi Supreme Court held that the claim was procedurally barred pursuant to subsection 99–39–21(2) of the Mississippi Code. Thus, the district court concluded that the claim was not exhausted. Subsection 99–39–21(2) procedurally bars the Mississippi Supreme Court from reviewing an argument in a petition for post-conviction relief that was disposed of on direct appeal. In other words, the provision has the same effect as res judicata and prevents the re-litigation of claims. The Supreme Court has explained that res judicata does not prevent federal review of a habeas claim. See Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1781, 173 L.Ed.2d 701 (2009). Similarly, when a claim is procedurally barred pursuant to subsection 99–39–21(2), federal courts are not prevented from reviewing the merits of a claim, as long as the claim was not procedurally barred for some other reason. See Foster v. Johnson, 293 F.3d 766, 787 n. 12 (5th Cir.2002). Accordingly, there was no procedural bar to the district court's consideration of Jackson's Ake claim. Because the merits of the claim were examined by the Mississippi Supreme Court on direct appeal, the claim was examined by the state's highest court and properly exhausted. See 28 U.S.C. § 2254(b)(1)(A). Therefore, we are not barred from reviewing the merits of Jackson's Ake claim.

Although the district court held that Jackson's Ake claim was procedurally barred, it ruled in the alternative that the claim was without merit. Specifically, the district court determined that the state trial court's determination was not counter to the Supreme Court's determination in Ake. We agree. In Ake, the Court held that a defendant has the right to a mental health expert: (1) “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial” and (2) “in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness.” 470 U.S. at 83, 105 S.Ct. 1087. Here, the trial court selected two mental health experts to evaluate Jackson, Whelan and Dr. Robert McKinley, a psychiatrist. Thus, even if we assume that Whelan did not give Jackson an independent and reliable psychological examination as Jackson alleges, he still had the assistance of another court-appointed psychiatrist, McKinley. Furthermore, after Jackson protested Whelan's and McKinley's evaluations, the trial court gave Jackson funds to hire Dr. Timothy Summers, a psychiatrist that Jackson selected. Therefore, other than Whelan, Jackson received the assistance of two mental health experts, which is more than Ake requires. We conclude that the district court correctly held that Jackson's claim is without merit and does not warrant a COA.

3.

Jackson argues that Walls was ineffective because he was allegedly dilatory in objecting to Dr. Whelan's appointment and in requesting that Jackson be evaluated by an independent, conflict-free mental health professional (hereinafter mental health evaluation claim). Jackson further argues that, although trial counsel did present evidence of remorse and family forgiveness, a great deal of mitigating evidence was ignored (hereinafter mitigating evidence claim). Both arguments are not sufficient grounds for this court to grant Jackson a COA on this issue.

(a) Mental Health Evaluation Claim

Under Strickland, counsel's actions are “ineffective” if the actions were so deficient that it cannot be said that he was functioning as “counsel” within the meaning of the Sixth Amendment. 466 U.S. at 687, 104 S.Ct. 2052. Jackson's trial counsel was not dilatory, unreasonable, or otherwise ineffective for not demanding from the court an expert of Jackson's choosing, a service that Jackson was not entitled to have under federal law. The Supreme Court explicitly stated in Ake that a defendant does not have “a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.” 470 U.S. at 83, 105 S.Ct. 1087. Moreover, the record indicates that counsel diligently requested that the trial court allow Jackson to select an expert. During pre-trial and again after the parties were presented with Whelan's and McKinley's reports, Walls requested an expert of Jackson's choosing. As previously explained, the trial court granted this request and gave Jackson funds to hire Summers, a psychiatrist he selected. Notably, after consulting with Summers about his report, Jackson decided to withdraw his insanity defense. In sum, Jackson's claim that Walls was dilatory in requesting an independent mental health evaluation is without merit.

(b) Mitigating Evidence Claim

Jackson argues that his case is factually analogous to Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) because, like the defendant's counsel in Williams, Walls failed to present mitigating evidence during sentencing. This argument is also unavailing. In Williams, the Supreme Court found that the defendant was denied his constitutional right to effective assistance of counsel when trial counsel failed to investigate and present mitigating evidence at sentencing. Id. at 390–91, 120 S.Ct. 1495. The only mitigating evidence trial counsel presented during sentencing was the fact that the petitioner turned himself in and demonstrated remorse for his actions. Id. at 398, 120 S.Ct. 1495. This, in conjunction with the fact that counsel failed to explore several other mitigating factors, led to the conclusion that the defendant's counsel was ineffective. Id. at 396–97, 120 S.Ct. 1495. Williams is immediately distinguishable from the circumstances in Jackson's case. First, unlike the defendant's counsel in Williams, Jackson's attorney presented extensive mitigating evidence during the sentencing proceedings. Witnesses testified as to Jackson's self-elected choice to turn himself into authorities, his remorse, anger disorder, potential metabolic disorders, toxic disorder, traumatic brain injuries, low IQ, and his lack of criminal or anti-social behavior prior to the murders. Second, there exists none of the additional mitigating evidence in Jackson's case that existed in Williams. For example, Jackson does not claim that his attorney failed to return phone calls or present evidence of his good behavior while incarcerated or that there is evidence of child abuse in his history. Therefore, the facts of the two cases do not align. The district court's determination that Jackson's counsel did not provide ineffective assistance is not debatable or wrong. Mitchell, 641 F.3d at 142. Accordingly, we do not grant Jackson's request for a COA on these grounds.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's denial of habeas relief and DENY Jackson's request to expand the COA.