PARCHMAN — A Mississippi man was executed Thursday for the 1995 slaying of a woman who disappeared from convenience store where she worked in Biloxi. William Mitchell, 61, was pronounced dead at 6:20 p.m. after a lethal injection. He is the second inmate executed this week for also killing a woman in 1995.

Asked whether he wanted to say anything before the chemicals were pumped into his veins, Mitchell emphatically said, "No." Dressed in a red jumpsuit, wearing black-and-white sneakers, Mitchell appeared to lick his lips, took a deep breath and exhaled and then yawned. Moments later he closed his eyes and officials pronounced him dead.

Mitchell was convicted in the Nov. 21, 1995, slaying of 38-year-old Patty Milliken, who disappeared after walking out of the Majik Mart convenience to have a cigarette with Mitchell. Her body was found the next day under a bridge. She had been "strangled, beaten, sexually assaulted and repeatedly run over by a vehicle," according to court records. Mitchell was convicted of capital murder in Harrison County in 1998.

Two members of Milliken's family - son Williams Burns and a sister, Rosemary Riley, - witnessed the execution. Corrections Commissioner Chris Epps said Mitchell didn't want any of his own relatives to witness it, but noted that Mitchell's lawyers were present. Earlier Thursday, Mitchell was visited by a brother and two sisters. Epps said Mitchell was talkative earlier in the day. "Just small talk ... nothing about what he was on death row for," Epps said.

Mitchell's last meal request was for fried shrimp and oysters, ranch dressing, two fried chicken breasts, a strawberry shake and a soft drink. Epps said Mitchell ate very little of the meal, but asked for a sedative.

The Mississippi Supreme Court and the U.S. Supreme Court earlier Thursday declined to stop Mitchell's execution. Gov. Phil Bryant said in a statement that he would not halt the execution. "After reviewing the case of William Mitchell and the crime he committed, I will not stand in the way of the scheduled execution. My thoughts and prayers are with the family and friends of Patty Milliken, who fell victim to this horrible act of violence," Bryant said in the statement.

Mitchell's body will be turned over to his sister, Gerolyn Mitchell, and Brinson Funeral Home in Cleveland.

Court records show Mitchell had been out of prison on parole for less than a year for a 1974 murder when he was charged with raping and killing Milliken. According to court records, Mitchell, as a young adult, served in the Army but by the 1990s, he had a long criminal record and had spent much of his adult life behind bars. He was charged twice with beating women in 1973. In 1974, he was charged with killing a family friend and stabbing her daughter.

In his petition to the Supreme Court, Mitchell had argued the Mississippi courts denied his right to due process by failing to address his challenge that was based on his lawyers' inadequate representation. He said the courts just ignored the issue by saying it had already been adjudicated elsewhere. Mississippi Attorney General Jim Hood in his brief to the Supreme Court said the issues raised by Mitchell were nothing new and were rejected by other courts.

On Tuesday, Larry Matthew Puckett, was executed for the 1995 sexual assault and slaying of the wife of his former boss. Puckett, 35, was convicted of the Oct. 14, 1995, killing of Rhonda Hatten Griffis, a 28-year-old mother of two who lived northeast of Hattiesburg in Petal. Like Mitchell, Puckett said "no" when asked if he had a last statement.

Biloxi Sun Herald

A Coast man will be executed Thursday for the murder of a Biloxi store clerk who was beaten, strangled, sexually assaulted and still alive when she was run over with a car in 1995. William “Jerry” Mitchell, 61, is scheduled to be the second killer put to death by lethal injection in a week at the Mississippi State Penitentiary at Parchman.

Mitchell has been on death row since 1998, when a Harrison County jury found him guilty in the slaying of 38-year-old Patty Milliken. He was on parole for a previous murder when a Biloxi police officer found Milliken’s body, nude and mutilated, under the Popp’s Ferry Bridge on Nov. 22, 1995. Milliken had lived in Gulfport a couple of years and was a cashier at a Majik Market on Popp’s Ferry Road. The mother of four disappeared from the store near the end of her shift.

Milliken had called her son to tell him she would be home in 15 minutes, and stepped outside the store to smoke a cigarette with Mitchell, court papers show. A few minutes later, a co-worker cut his finger and went outside to get Milliken to relieve him while he bandaged it. Milliken had disappeared, but her purse, car keys and cigarettes were still in the store. Her co-worker reported her missing.

Officer Tim McKaig, now a detective, went looking for Mitchell that night to question him about the disappearance. There was no reason to believe she had been killed, and a camera crew from the TV show “COPS” happened to be in town to film police at work. McKaig testified he found Mitchell in the backyard at his father’s house on Croesus Street. “Before I could say anything,” McKaig said, “he said, ‘Who’s there?’ and I said, ‘Police. I just want to talk to you,’ and he ran.” Mitchell sped off in his Pontiac Grand Am. Police saw his car at a U.S. 90 gas station, and he sped off again with five police cars pursuing him. His car crashed into a chain-link fence near the CSX railroad tracks and Caillavet Street. The “COPS” crew filmed it.

Mitchell was on parole for the 1974 murder of Irene Edwards, also killed in Harrison County. He had stabbed her to death with two butcher knives when he was home from college one weekend.

From missing to murdered

The morning after Milliken disappeared, a police officer who had heard of a missing woman stopped under the Popp’s Ferry Bridge to look for her. He found her body under the north end of the bridge. Forensic examination would reveal she had been assaulted physically and sexually, then the top half of her body was run over repeatedly by a car. Robert Burriss, a crime-scene technician then, said the crime scene ranks high on his list of the worst he ever saw. “He used his car to run over her, back and forth, at least a dozen times,” Burriss said as he recalled finding blood in the back of the car, and blood and hair on the undercarriage of Mitchell’s car. “Her body had very distinctive tire marks,” he said. Tire casts from the scene matched the tread design and size on three of Mitchell’s tires.

In a videotape played at the trial, Mitchell said Milliken left the store willingly and they were going to have sex in the backseat of his car, but they argued and she slapped him and he hit her. He said he ordered her out of his car and that was the last time he saw her.

The jury took 50 minutes to find him guilty on July 23, 1998. The next day, the jury deliberated a little less than two hours and handed then-Judge Kosta Vlahos a death-sentence verdict.

A 14-year wait for execution

A death sentence has an automatic appeal process that usually takes years to resolve. At the time, it had been nine years since the state executed a killer, in part over controversy involving the death penalty and the use of the gas chamber. Mitchell became the state’s 63rd death row inmate in a logjam of executions delayed for reasons such as a nationwide ban on executions for several years. Executions resumed in 2002 after state lawmakers decided a lethal injection is a more humane form of death than gas. Mitchell based one of his appeals on a 2002 U.S. Supreme Court ruling that prohibits the execution of a mentally ill criminal. It’s considered cruel and unusual punishment. His death sentence was upheld in 2004. The ruling said he had served in the military four years, attended college one semester, and was not deemed retarded by a clinical psychologist who interviewed him.

Process has begun

The procedures to execute him have begun, with notifications of relatives and others, and obtaining drugs for the lethal-injection cocktail. The state changed its ingredients in 2011 because of a nationwide shortage of sodium thiopental. The injection that will take Mitchell’s life costs $11,400, according to the Mississippi Department of Corrections. The cocktail is a mixture of pentobarbital, pavulon, potassium chloride and saline. One is an anesthetic, one stops breathing and another stops the heart. Mitchell will be moved from death row Tuesday to a holding cell next to the execution room.

Parchman will be placed on lockdown Wednesday. Inmates won’t be allowed out of their cells unless there’s an emergency, said Suzanne Singletary, MDOC spokeswoman. On Thursday, prison staff will inspect the gurney and syringes, prepare the drugs and fill the syringes. Mitchell’s family will be allowed to visit him between 1 and 3 p.m., just before a visit from his attorney and a chaplain. He also will be able to talk with his family by telephone. Mitchell will receive his last meal at 4 p.m. and will be allowed to shower. A clergyman can then visit if Mitchell wishes.

Witnesses to the execution will be taken to Unit 17 at Parchman 30 minutes in advance. Mitchell will be taken to the execution room and strapped on the gurney about 5:45 p.m. Witnesses will be escorted into the observation room at 6 p.m. An assistant will then insert intravenous lines into Mitchell’s arm. The executioner, who will be paid $500 plus expenses, will administer the drugs. Mitchell will die within minutes. Several of Milliken’s family members plan to watch, but they are not willing to speak to reporters until after the execution, Singletary said.

Burriss, now retired, said he may ask police officials if he can accompany them to witness Mitchell’s execution. “I want to know what he has to say,” Burriss said. “I’d like to know if he shows remorse and has accepted Jesus as his savior. I can’t say I’m really 100 percent for or against the death penalty, but if he falls in the category of not being able to be rehabilitated, I have no problem with the death penalty.”

Mississippi Department of Corrections (Offender Data Sheet)

Sentences:1 HOMICIDE- 06/24/1975 HARRISON COUNTY, LIFE SENTENCE; 2 AGGRAVATED ASSAULT 06/24/1975 HARRISON COUNTY, 5 Years; 3 HOMICIDE- 07/24/1998 HARRISON COUNTY, DEATH SENTENCE

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 November 21, 1995, James Hartley saw William Mitchell enter the Majik Mart on Popps Ferry Road in Biloxi, Mississippi, three separate times to visit Patty Milliken while she was working her shift. Hartley over-heard Milliken refer to Mitchell as "Jerry." When Milliken's shift ended that evening around 8:00 p.m., she and Hartley had yet to document the amount of cash they had placed in the safe that night. Milliken opened the safe and then telephoned her son that she would be home in fifteen minutes.

According to Hartley, Milliken walked out of the store with Mitchell to smoke a cigarette and told him (Hartley) that she would be right back. Ten minutes later, Hartley walked outside to ask Milliken a question, but she was not there. Her belongings were inside the store, and her car was in the parking lot.

When Milliken had still not returned by 10:00 p.m., Hartley telephoned the police. Hartley gave Milliken's purse to police and showed them where she had written Mitchell's phone number. The police cross referenced the telephone number to a physical address and proceeded to the address. The police arrived at the residence at approximately midnight and asked to speak to Mitchell. Mitchell ran, and the Biloxi Police Department issued an alert for Mitchell and his vehicle. A police officer later spotted Mitchell at a gas station on U.S. Highway 90. Mitchell again ran, and the police followed in pursuit.

Mitchell was eventually caught and arrested for traffic violations. His passenger testified that Mitchell had stated that he (Mitchell) "got that bitch." Patty Milliken's body was found the following morning under a bridge. She had been beaten, strangled, sexually assaulted both vaginally and anally, crushed by a car and mutilated.

There was testimony that she was still alive when the car ran over her. Comparison tests conducted indicated the tire casts from the area matched three of the four tires on Mitchell's car with regard to tread design and size. Police also found blood and hair on and under Mitchell's car.

Mitchell was charged with the capital murder of Milliken committed while being under a sentence of life in prison. On July 24, 1998, a jury found him guilty and sentenced him to death by lethal injection.

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 02/08/2012

Source: Mississippi Department of Corrections, Mississippi State Penitentiary

Jackson Free Press

"State Executes William Mitchell," by R.L. Nave. (March 23, 2012)

William Mitchell was already affixed to the metal table with thick, heavy, tan leather straps when prison guards escorted witnesses into the execution viewing rooms at Mississippi State Penitentiary at Parchman. Dressed in a red jumpsuit and surprisingly clean black and white sneakers--MSP's version of Converse's All-Star--Mitchell's bulky 6-foot-1-inch frame filled every available inch of the gurney that was bolted to the floor. Underneath the slab, curiously, sat a small, wooden step stool.

His hair cut short, a small tuft of gray hair on his chin, Mitchell stared blankly at the ceiling above him, not once shooting a glance in the direction of any of the five people standing just feet from him in the cramped chamber. The officials--one woman and four men, including MDOC Commissioner Christopher Epps--did not look at Mitchell or at each other. Just after 6 o'clock, as the sun set outside, one of the male officials flipped on a microphone mounted above Mitchell's face and asked the condemned if he wished to make a last statement. "No," he said, defiantly. The official stepped back and a tube originating from a separate room began to sway gently as pentobarbital (an anesthetic), Pavulon (a muscle relaxer), and potassium chloride (which causes cardiac arrest) pumped into Mitchell's arms, extended and taped to extensions on the gurney.

He took a few quick breaths, his huge chest expanding several times, and he let out an unusual sounding yawn. His bottom jaw protruded from his face in an unnatural way for a just a second before he relaxed. His eyes closed, and the 62-year-old man didn't move again. Another 10 or 15 minutes of silence--both in the execution chamber and in the condemned's witness room--followed before prison officials pronounced Mitchell dead at 6:20 p.m.

Two of Mitchell's attorneys, Glenn Swartzfager and Louwlynn Vanzetta Williams, consoled one another with mere glances. When it was over, corpse directors from Brinson Funeral Home in Cleveland loaded Mitchell's body into a white SUV parked immediately outside the death chamber.

A judge sentenced Mitchell to death in 1998 for the capital murder of Patty Milliken in Biloxi. Milliken, a store clerk at Majik Mart, left to have a cigarette with Mitchell at the end of her shift on November 21, 1995, according to information from the MDOC. Milliken's co-worker called the police when she did not return to the market where she had left her belongings. When police arrived at Mitchell's home to ask about Milliken's whereabouts, he ran. A police officer spotted Mitchell later at a gas station, and he ran again.

Police eventually captured Mitchell, who was out on parole at the time for a murder and aggravated assault committed in 1975. Milliken's body was found a day later under a bridge. She had been beaten, strangled, vaginally and anally assaulted, crushed by a car and mutilated. A passenger of Mitchell's told police that Mitchell, referring to Milliken, said he "got that bitch."

Epps, MDOC commissioner, said yesterday that he asked Mitchell several times on the day of his execution to talk about the incident. "If you hadn't done anything, would you say anything?" was Mitchell's response, Epps said. Throughout the day, MDOC held press briefings for the three reporters who signed up to witness the execution. Reporters received details of Mitchell's final day, such as who he called on the telephone (six people in all, including his daughter), if he showered and the contents of his last meals. For breakfast, it was potatoes and beef gravy, biscuits, dry cereal, milk and coffee, which he did not finish. For his final meal (he declined lunch), Mitchell ordered a "big plate of fried shrimp and oysters, big strawberry shake, cup of Ranch dressing, two fried chicken breasts and a Coke." He ate very little, Epps said, which is unusual in the 18 executions he's overseen.

Members of Milliken's family, including her son, Will Burns, who was a child when she died, read statements. Burns remembered walks on the beach and drives along Highway 90 to admire beautiful homes. He said that he is disappointed that "a beautiful lady's name will forever be tied to a disgusting man." "In this moment, I am very angry at the system, at this man, and at the fact that the process took close to 17 years to come to fruition," Burns said. "Do I feel justice was served? I would have to say only slightly. Sure, the state of Mississippi took his life. He lived in a cage like an animal for the last 17 years, but we all paid to keep him there."

On Tuesday, March 22, the state also executed Larry Matthew Puckett. In August 1996, Puckett received a death sentence for the murder, rape and sexual battery of Rhonda Griffis, his former boss' wife.

ProDeathPenalty.Com

The record shows that on November 21, 1995, Hartley saw Mitchell enter the store three separate times to visit Milliken while she was working her shift. Hartley overheard Milliken refer to Mitchell by the name of "Jerry." At the end of Milliken's shift that evening, around 8:00 p.m., Milliken and Hartley realized that they had forgotten to document the amount of cash they had placed in the safe that night. Milliken opened the safe and telephoned her son that she would be home in fifteen minutes. At approximately 8:05 p.m. Milliken decided to walk out of the store with Mitchell and told Hartley that "she'd be outside smoking a cigarette if [Hartley] needed her and that she'd be right back." Milliken left her keys in the lock on the safe, cigarettes and lighter on one counter, and her purse on another counter. Hartley testified that it was odd for Milliken to go outside to smoke because employees were authorized to smoke inside the store. Ten minutes after Milliken had gone outside, Hartley walked outside to ask her a question, but she was not there. Her belongings were still inside the store, and her car remained in the parking lot. Hartley telephoned Milliken's home and learned that she had not been in contact with her family. When Milliken had still not returned by 10:00 p.m., Hartley telephoned the police.

When the police arrived, Hartley gave them Milliken's purse and showed them where she had written Jerry's phone number. The police cross-referenced the telephone number to a physical address, and proceeded to the house on Croesus Street. The police arrived at the residence at approximately midnight. Officers Matory and Doucet went to the front door, and Officer McKaig "was on the right side of the house approaching the rear." McKaig saw Mitchell, and Mitchell asked, "Who's that?" McKaig identified himself as a police officer and explained that he wanted to speak to him. Mitchell ran, and a pursuit on foot followed. Captain Anderson responded to assist with the foot pursuit. Captain Patterson, arriving to assist with the foot pursuit, spoke with Booker Gatlin, Mitchell's grandfather and owner of the residence on Croesus Street. Gatlin indicated that "Jerry" was William Gerald Mitchell, and that he drove a blue Grand Am.

When the foot pursuit proved unsuccessful, the Biloxi Police Department issued a be-on-the-lookout ("BOLO") for Mitchell and his vehicle. Shortly thereafter, an officer spotted Mitchell getting gas at a Shell station located on U.S. Highway 90. When Mitchell noticed the police car, he threw down the gas nozzle he was using and sped away in his vehicle. Patrolman Sonnier took part in the pursuit of Mitchell. That evening he had a television camera crew riding with him, and they were able to film most of the pursuit. Sonnier testified that Mitchell was the driver of the vehicle and that Curtis Pearson was his passenger. The high-speed chase ended in Mitchell being arrested for various traffic violations.

Mitchell's passenger, Pearson, testified that, during the chase, Mitchell stated 2-3 times that he "got that bitch." Officer Heard of the Biloxi Police Department discovered the mutilated, almost naked body of Patty Milliken under the Popps Ferry Bridge at 7:14 a.m. the following morning. Officer Robert Burriss arrived at the scene at approximately 7:30 a.m., and worked the scene until 2:00 p.m. Burriss testified that he found Patty's body on its back. She had part of a shirt sleeve around her right arm and part of her bra around her left arm, with only a pair of white socks clothing her body. Her body was bruised and scraped, and her head was "burst open" with the brains "spilling out of the skull, scattered about on the yard, and there was also some of the brain matter stuck on her back."

There were "numerous" tire tracks "back and forth all over that area;" tracks that were similar to the ones found on Milliken's body. Testing would ultimately show that the tire casts from the area matched three of the four tires on Mitchell's car with regard to tread design, size and "overall width." Later that day, pursuant to a search warrant, Burriss also collected evidence from Mitchell's car. Burriss made a diagram of the car indicating where he found "various pieces of blood and hair on the automobile." Burriss found hair and blood on the passenger door; blood underneath the fender and body of the car, as well as on the catalytic converter; and blood spatters in three of the wheel wells. Patty's broken lower dentures were also found in Mitchell's car. After Mitchell's arrest for traffic violations, he was taken to the Biloxi Police Department.

Mitchell was initially interviewed by Sergeant Torbert and Investigator Thompson. Later, Officers Newman and Peterson interviewed Mitchell at 1:07 p.m. on November 22, 1995, the same day Patty Milliken's body was found. At the time of this second interview, Mitchell had not been arrested or charged with murder, but was in custody for the traffic violations. Mitchell said that he was the only one to use his vehicle that night. Mitchell claimed that Patty was alive when he left her, though he did admit that he had hit her hard enough in the nose that "blood just flew everywhere." A redacted version of Mitchell's second interview was admitted during the trial. The tape was edited and redacted at the point before Mitchell made any statement that he killed or was responsible for the death of Patty Milliken.

After Mitchell's second interview, Mitchell was booked on the charge of murder and transported to the Harrison County Jail. Prior to his transfer, a suspect rape kit was performed on Mitchell at the Biloxi Regional Medical Center. Later, search warrants were secured and executed on Mitchell, Mitchell's car, and Mitchell's residence at 323 Croesus Street in Biloxi. Dr. Paul McGarry performed the autopsy on Patty Milliken's body.

According to McGarry, Patty was strangled, beaten, sexually assaulted, and repeatedly run over by a vehicle. McGarry stated that the damage to the larynx cartilages and hemorrhagic airway proved that she had been strangled. There were also semicircular marks from her attacker's fingernails on her neck. She was beaten to the point that her lower denture was broken and expelled. Her face was swollen and purple which "would evidence that hard blows had been delivered to the head." Analysis of the genital area displayed "the kind of injuries that are produced by stretching and tearing of the delicate lining of the vagina" which McGarry "interpreted as forceful penetration enough to damage the tissue and tear and rub off surfaces of the tissue, to stretch the opening. The anus was even more so damaged." McGarry confirmed that Patty Milliken's sexual injuries occurred while she was still alive. McGarry also testified to finding five tire tracks across the victim's body. According to McGarry, Patty Milliken apparently lived long enough to experience the crushing injuries that ruptured her kidney, liver, and spleen; broke almost every rib; broke her spine; broke her collarbone; and, tore open her lungs and heart vessels. Patty Milliken was killed when her "brain [was] blown out by crushing and squashed out." The brain was expelled up to four feet from an opening at the top of her head measuring eight inches in diameter.

At the time of Patty's savage murder, Mitchell had been paroled for approximately eleven months from a sentence of life in prison for murder.

The Silent Voices of Mississippi

William Mitchell is expecting a execution to be set any time. Once the state gets a date set it is carried out within 30 days. William Mitchell is one of the men named in the Knox Lawsuit, who deceive inadequate counsel.

KNOX V. MISSISSIPPI Justia.com Opinion Summary: In 2010, sixteen death-sentenced inmates, including Steve Knox (the inmates), filed a complaint in the Chancery Court. The essence of their complaint was that due to defects in both the statutory structure and the performance of the Mississippi Office of Capital Post-Conviction Counsel (MOCPCC), they were deprived of their right to obtain meaningful state post-conviction and federal habeas corpus review of their convictions and death sentences. The inmates requested injunctive relief against the State due to alleged violations of their rights to competent, appointed, post-conviction counsel. The State moved to dismiss for lack of jurisdiction. After a hearing, the chancery court found that it lacked subject matter jurisdiction over the complaint because the inmates' "attack on the death sentences and post-conviction judicial reviews of [their] convictions" was cognizable under the Uniform Post-Conviction Collateral Relief Act (UPCCRA). The chancery court dismissed the complaint. Upon review, the Supreme Court affirmed, finding the chancery court lacked jurisdiction over the inmates claims because the claims were embraced by the UPCCRA.

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Mitchell v. State, 792 So.2d 192 (Miss. 2001). (Direct Appeal)

Defendant was convicted in the Circuit Court, Harrison County, Kosta N. Vlahos, J., of capital murder and was sentenced to death by lethal injection. He appealed. The Supreme Court, Pittman, C.J., held that: (1) in a matter of first impression, the issuance of a second indictment before a nolle prosequi of the first indictment was not a double jeopardy violation; (2) investigating police officer did not trespass on defendant's property; (3) defendant's right to a speedy trial was not violated; and (4) death sentence was not disproportionate when compared to similar cases. Affirmed.

EN BANC.
PITTMAN, C.J., for the Court:

STATEMENT OF THE CASE

¶ 1. William Gerald Mitchell was originally indicted as a habitual offender on July 25, 1996, by the Grand Jurors of the Second Judicial District of Harrison County for the November 21, 1995, capital murder of Patty Milliken, while Mitchell was under a sentence of life imprisonment, in violation of Miss.Code Ann. § 97–36–19(2)(e). On July 21, 1998, the trial judge granted a nolle prosequi for the indictment due to an error contained within the indictment.

¶ 2. On April 29, 1998, William Gerald Mitchell was indicted as a habitual offender by the Grand Jurors of the Second Judicial District of Harrison County for the November 21, 1995, capital murder of Patty Milliken, while Mitchell was under a sentence of life imprisonment, in violation of Miss.Code Ann. § 97–36–19(2)(b). Mitchell was arraigned and pled not guilty on June 4, 1998.

¶ 3. On July 23, 1998, the jury found Mitchell guilty of capital murder. A hearing regarding Mitchell's status as a habitual offender was held, and the trial judge ruled that Mitchell was a habitual offender. The sentencing hearing was held July 23, 1998, where the jury imposed the death penalty. The trial court stayed Mitchell's execution. Mitchell's post-trial motions were denied in November, 1998. Mitchell appeals, raising twelve issues for consideration by this Court.

STATEMENT OF THE FACTS

¶ 4. The last time that Patty Milliken was seen alive was at the conclusion of her shift at 8:00 p.m., November 21, 1995, at the Majik Mart on Popps Ferry Road in Biloxi, Mississippi. She told her co-worker, James Leland Hartley, that she was going outside to smoke and talk to William Gerald Mitchell and that she would return shortly. Before following Mitchell outside, she telephoned her son, telling him she would be home in approximately fifteen minutes. She also left her keys in the safe to initiate a 10–minute time-released unlock and her purse and other personal items on the counter. Patty Milliken's body was found the following morning under a bridge. She had been beaten, strangled, sexually assaulted, crushed by being driven over, and mutilated.

¶ 5. The record shows that on November 21, 1995, Hartley saw Mitchell enter the store three separate times to visit Milliken while she was working her shift. Hartley overheard Milliken refer to Mitchell by the name of “Jerry.” At the end of Milliken's shift that evening, around 8:00 p.m., Milliken and Hartley realized that they had forgotten to document the amount of cash they had placed in the safe that night. Milliken opened the safe and telephoned her son that she would be home in fifteen minutes. At approximately 8:05 p.m. Milliken decided to walk out of the store with Mitchell and told Hartley that “she'd be outside smoking a cigarette if [Hartley] needed her and that she'd be right back.”

¶ 6. Milliken left her keys in the lock on the safe, cigarettes and lighter on one counter, and her purse on another counter. Hartley testified that it was odd for Milliken to go outside to smoke because employees were authorized to smoke inside the store. Ten minutes after Milliken had gone outside, Hartley walked outside to ask her a question, but she was not there. Her belongings were still inside the store, and her car remained in the parking lot. Hartley telephoned Milliken's home and learned that she had not been in contact with her family. When Milliken had still not returned by 10:00 p.m., Hartley telephoned the police.

¶ 7. When the police arrived, Hartley gave them Milliken's purse and showed them where she had written Jerry's phone number. The police cross-referenced the telephone number to a physical address, and proceeded to 323 Croesus Street. The police arrived at the residence at approximately midnight.

¶ 8. Officers Matory and Doucet went to the front door, and Officer McKaig “was on the right side of the house approaching the rear.” McKaig saw Mitchell, and Mitchell asked, “Who's that?” McKaig identified himself as a police officer and explained that he wanted to speak to him. Mitchell ran, and a pursuit on foot followed.

¶ 9. Captain Anderson responded to assist with the foot pursuit. Captain Patterson, arriving to assist with the foot pursuit, spoke with Booker Gatlin, Mitchell's grandfather and owner of the residence on Croesus Street. Gatlin indicated that “Jerry” was William Gerald Mitchell, and that he drove a blue Grand Am.

¶ 10. When the foot pursuit proved unsuccessful, the Biloxi Police Department issued a be-on-the-lookout (“BOLO”) for Mitchell and his vehicle. Shortly thereafter, an officer spotted Mitchell getting gas at a Shell station located on U.S. Highway 90. When Mitchell noticed the police car, he threw down the gas nozzle he was using and sped away in his vehicle. Patrolman Sonnier took part in the pursuit of Mitchell. That evening he had a television camera crew riding with him, and they were able to film most of the pursuit. Sonnier testified that Mitchell was the driver of the vehicle and that Curtis Pearson was his passenger. The high-speed chase ended in Mitchell being arrested for various traffic violations. Mitchell's passenger, Pearson, testified that, during the chase, Mitchell stated 2–3 times that he “got that bitch.”

¶ 11. Officer Heard of the Biloxi Police Department discovered the mutilated, almost naked body of Patty Milliken under the Popps Ferry Bridge at 7:14 a.m. the following morning. Officer Robert Burriss arrived at the scene at approximately 7:30 a.m., and worked the scene until 2:00 p.m. Burriss testified that he found Milliken's body on its back. She had part of a shirt sleeve around her right arm and part of her bra around her left arm, with only a pair of white socks clothing her body. Her body was bruised and scraped, and her head was “burst open” with the brains “spilling out of the skull, scattered about on the yard, and there (sic) was also some of the brain matter stuck on her back.”

¶ 12. There were “numerous” tire tracks “back and forth all over that area;” tracks that were similar to the ones found on Milliken's body. Testing would ultimately show that the tire casts from the area matched three of the four tires on Mitchell's car with regard to tread design, size and “overall width.”

¶ 13. Later that day, pursuant to a search warrant, Burriss also collected evidence from Mitchell's car. Burriss made a diagram of the car indicating where he found “various pieces of blood and hair on the automobile.” Burriss found hair and blood on the passenger door; blood underneath the fender and body of the car, as well as on the catalytic converter; and blood spatters in three of the wheel wells. Milliken's broken lower dentures were also found in Mitchell's car.

¶ 14. After Mitchell's arrest for traffic violations, he was taken to the Biloxi Police Department. Mitchell was initially interviewed by Sergeant Torbert and Investigator Thompson. Later, Officers Newman and Peterson interviewed Mitchell at 1:07 p.m. on November 22, 1995, the same day Milliken's body was found. At the time of this second interview, Mitchell had not been arrested or charged with murder, but was in custody for the traffic violations. Mitchell said that he was the only one to use his vehicle that night. Mitchell claimed that Milliken was alive when he left her, though he did admit that he had hit her hard enough in the nose that “blood just flew everywhere.” A redacted version of Mitchell's second interview was admitted during the trial. The tape was edited and redacted at the point before Mitchell made any statement that he killed or was responsible for the death of Milliken.

¶ 15. After Mitchell's second interview, Mitchell was booked on the charge of murder and transported to the Harrison County Jail. Prior to his transfer, a suspect rape kit was performed on Mitchell at the Biloxi Regional Medical Center. Later, search warrants were secured and executed on Mitchell, Mitchell's car, and Mitchell's residence at 323 Croesus Street in Biloxi.

¶ 16. Dr. Paul McGarry performed the autopsy on Milliken's body. According to McGarry, Milliken was strangled, beaten, sexually assaulted, and repeatedly run over by a vehicle. McGarry stated that the damage to Milliken's larynx cartilages and hemorrhagic airway proved that she had been strangled. There were also semicircular marks from her attacker's fingernails on her neck. She was beaten to the point that her lower denture was broken and expelled. Her face was swollen and purple which “would evidence that hard blows had been delivered to the head.” Analysis of the genital area displayed “the kind of injuries that are produced by stretching and tearing of the delicate lining of the vagina” which McGarry “interpreted as forceful penetration enough to damage the tissue and tear and rub off surfaces of the tissue, to stretch the opening. The anus was even more so damaged.” McGarry confirmed that Milliken's sexual injuries occurred while she was still alive.

¶ 17. McGarry also testified to finding five tire tracks across the victim's body. According to McGarry, Milliken apparently lived long enough to experience the crushing injuries that ruptured her kidney, liver, and spleen; broke almost every rib; broke her spine; broke her collarbone; and, tore open her lungs and heart vessels. Milliken was killed when her “brain [was] blown out by crushing and squashed out.” The brain was expelled up to four feet from an opening at the top of her head measuring eight inches in diameter.

¶ 18. At the time of Milliken's savage murder, Mitchell had been paroled for approximately eleven months from a sentence of life in prison for murder.

DISCUSSION

I. CAN AN INDICTMENT BE RETURNED AGAINST A DEFENDANT WHILE A PRIOR INDICTMENT CHARGING THE SAME OFFENSE IS STILL ACTIVE AND PENDING?

¶ 19. On July 25, 1996, William Gerald Mitchell was indicted as a habitual offender by the Grand Jurors of the Second Judicial District of Harrison County for the November 21, 1995, capital murder of Patty Milliken, while Mitchell was under a sentence of life imprisonment, in violation of Miss.Code Ann. § 97–3–19(2)(e). At a hearing held November 13, 1997, the trial judge noted a scrivener's error in the indictment in that Mitchell had been charged under the wrong subsection of the capital murder statute. This first indictment, Cause No. 96–263, while specifically citing Miss.Code Ann. § 97–3–19(2)(b) in its heading, referred to the felony-murder section of the Miss.Code § 97–3–19(2)(e) and contained language “with or without deliberate design.” The trial judge commented that “it ought to be cleaned up if it is a Scribner's [sic] error.” Subsequently, on April 29, 1998, William Gerald Mitchell, a/k/a William Jerald Mitchell, was indicted as a habitual offender by the Grand Jurors of the Second Judicial District of Harrison County for the November 21, 1995, capital murder of Patty Milliken, while under a sentence of life imprisonment, in violation of Miss.Code Ann. § 97–3–19(2)(b).

¶ 20. On July 21, 1998, the trial court granted a motion by the State to nolle prosequi the first indictment. This nolle prosequi came about as a result of defense counsel making a motion to dismiss Mitchell's second indictment, Cause No. 98–195, because the first indictment, Cause No. 96–263, was still active and pending. This motion was made immediately after the jury was impaneled and sworn in. The trial judge denied the defense's motion to dismiss. It was after the motion was denied that the State made an ore tenus motion to nolle prosequi the first indictment, which, against opposition of defense counsel, was granted.

¶ 21. After the motion to nolle prosequi was granted, the district attorney stated:

And we further would say to the record that that is the same case and all material points, some name's changed and better tracks the statute as the present—that the case that we're involved in today B–2402–98–00195, being the capital murder indictment against William Gerald Mitchell a/k/a William Jerald Mitchell which was filed on April 29th, 1998. And the defense has been—was made aware of it at that time, and in fact all-I'll say this to make clear in the record, there was no confusion no disadvantage to the defense by the action that was taken because all of their motions since that time, all the correspondence since that time, all of the record entries since that time, not only by the prosecution but by the defense starting with its filing on June 3rd, 1998, have been with the current number, the number under which we proceed today, as announced by the Court numerous times.

¶ 22. Mitchell contends that the trial court erred in denying his motion to dismiss the second indictment at a time when the first indictment was still pending and had not been nolle prosequi or dismissed. Mitchell asserts that the grand jury should not have been allowed to consider or return the second indictment against him while his first indictment was still active and pending.

¶ 23. The State maintains that because there was a nolle prosequi of the first indictment, the trial that ensued under the second indictment was proper.

¶ 24. Whether a second indictment on a charge contained within the first indictment can be returned against a defendant while the first indictment is active and pending is a matter of first impression for this Court. However, Wilson v. State, 574 So.2d 1324, 1332 (Miss.1990), supports the proposition that there is no double jeopardy violation when a second indictment is returned by a grand jury, and then the prosecution successfully moves the court to enter a nolle prosequi motion regarding the first indictment. The first indictment in Wilson resulted in a mistrial when the jury could not agree on a verdict. The defense filed a motion to quash the second indictment alleging that Wilson was facing double jeopardy, which was denied. Id. The difference between Wilson and the case at hand is that in Wilson, the prosecution had secured a court order granting the nolle prosequi for the first indictment prior to the second trial, while in the instant case Mitchell actually had two active indictments pending against him after the jury had been impaneled, and opening statements by the State had been made. The trial was in progress when Mitchell's counsel was allowed to make the motion to dismiss, although it appears from the record that Mitchell's counsel attempted to make the motion before the State's opening statements began. The trial judge decided to hear the motion when the jury had gone to lunch.

¶ 25. What must be determined is whether Mitchell actually incurred any harm from having simultaneous indictments against him. Was Mitchell subjected to multiple prosecutions in this case, and was he aware of the grounds for the prosecution against him? The record indicates that he suffered no harm by having the simultaneous indictments. The fact that defense counsel submitted motions and requests for discovery to the court with the cause number from the second indictment shows that there was an awareness that the State was pursuing prosecution under the second indictment. However, it should be noted that during this time period Mitchell also submitted, pro se, several motions that were duplicative in nature to what his counsel had submitted, and that these referenced the cause number from the first indictment.

¶ 26. Also, Mitchell was subject to only one prosecution, only one trial. In Warren v. State, 709 So.2d 415, 418 (Miss.1998), this Court ruled that there was not a double jeopardy violation when a trial was aborted because a witness's testimony for the prosecution did not support the elements set out in the indictment and the defendant was subsequently re-indicted. Mitchell argues that because the State was barred in Warren from charging the same offense in Count II on the basis that it violated double jeopardy, the same should apply in the present case. Mitchell is incorrect in this assertion. Mitchell was not subjected to an actual trial or even an “aborted” trial, as was the case in Warren. Instead Mitchell attempted to make his motion before opening statements began; was told by the Judge that his motion would be reserved until the jury had gone to lunch; and then made his motion to dismiss before the prosecution had even called its first witness.

¶ 27. Any error from the issuance of the second indictment before nolle prosequi of the first indictment occurred was clearly harmless. This issue is without merit.

II. DID THE TRIAL COURT ERR WHEN IT ALLOWED THE PROSECUTION TO AMEND THE INDICTMENT?

¶ 28. During motions that were heard on June 4, 1998, the State realized that it had failed to include two felony convictions for assault and battery with intent to maim, which Mitchell had previously been sentenced to five years in prison, in the indictment. The trial judge asked for a written motion from the State, and authorized defense counsel to respond to the proposed amendment. The prosecution filed its motion to amend the indictment with the circuit clerk on June 8, 1998. The trial judge granted the amendment with an order indicating that the indictment was amended pursuant to an ore tenus motion from the State's prosecutor.

¶ 29. Mitchell contends that the trial court erred in signing an order allowing the State to amend the indictment without allowing the defense to respond. Mitchell asserts that he was denied his right to due process when not afforded the opportunity to be heard regarding the motion.

¶ 30. Mitchell, in his reply brief, maintains that the discussion regarding the proposed amendment held on June 4, 1998, did not constitute notice that the State was going to amend the indictment. Mitchell also asserts that the State's motion to amend indictment was not noticed to him and that a certificate of service was not provided to Mitchell or his attorneys. The record does not contain a certificate of service showing that Mitchell or his counsel were presented with a copy of this motion. Mitchell believes that this is a violation of Rule 2.06 of the Uniform Circuit and County Court rules which states as follows:

Unless otherwise ordered by the court, all pleadings, motions, or applications to the court, except the initial pleading or indictment, must be served by any form of service authorized by Rule 5 of the Mississippi Rules of Civil Procedure on all attorneys of record for the parties, or on the parties when not represented by an attorney, and the person filing same shall also file an original certificate of service certifying that a correct copy has been provided to the attorneys or to the parties, the manner of service, and to whom it was served. Except as allowed by this rule or allowed by the court for good cause shown, the clerk may not accept for filing any document which is not accompanied by a certificate of service.

U.R.C.C.C. 2.06. Mitchell contends that the fact that the court order was signed on June 4, 1998 but not entered until June 18, 1998, combined with the absence of a signature for Mitchell's counsel, shows that he was not given notice or permission to respond to the proposed amendment. Mitchell asserts that he should have, in the least, been arraigned on the new amended indictment.

¶ 31. The State claims that the indictment was properly amended to charge Mitchell as a habitual offender under Rule 7.09 of the Uniform Circuit and County Court Rules, which provides as follows:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63–11–30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

U.R.C.C.C. 7.09. The State contends that Mitchell cannot claim he was unfairly surprised by the addition of his other convictions to the indictment because Mitchell was charged with capital murder as a habitual offender from the very outset of the case. Burrell v. State, 726 So.2d 160, 162 (Miss.1998), noted that “although 7.09 does authorize amendments to charge the defendant as an habitual offender under § 99–19–83, this Court held in Nathan v. State, 552 So.2d 99, 106–07 (Miss.1989) that § 99–19–83 only affects sentencing and does not affect the substance of the offense charged.” Evans v. State, 725 So.2d 613, 681 (Miss.1997), holds that “the test for determining whether an indictment will prejudice the defendant's case is ‘whether a defense as it originally stood would be equally available after the amendment is made.’ ” (quoting Griffin v. State, 540 So.2d 17, 21 (Miss.1989)).

[2] ¶ 32. While the amendment to the indictment may not have been correctly made in terms of procedure, it certainly did not place Mitchell in any worse position than before the amendment was made. It only served to add convictions which in no way changed the substance of the indictment. Gray v. State, 605 So.2d 791, 793 (Miss.1992) states that “habitual offender status is not a crime, in and of itself, but merely a status which, if proven, will enhance the sentence imposed for the conviction of the offense.” In the present case we are not considering an amended indictment that was being made to lift the defendant to the level of “habitual offender.” Instead we see a situation where a prosecutor sought to correct an omission of two felonies that should have been included in the original indictment. The court's error in not allowing the defense to respond is harmless, rendering this issue without merit.

III. DID THE TRIAL COURT ERR IN REFUSING TO GRANT DEFENDANT'S MOTION FOR A SPECIAL VENIRE, AND/OR, TO GRANT A CONTINUANCE TO THE DEFENDANT?

¶ 33. Mitchell's counsel, before trial, filed a motion for special venire. The trial judge was notified of the request during the June 4, 1998, court hearing. Mitchell's counsel announced to the trial judge that he would either file a withdrawal or pursue the motion on June 8, 1998, upon which the trial judge reserved the motion. Approximately 2–3 weeks before trial, the trial judge instructed his court administrator to contact defense counsel to determine the status of the request for a special venire.

¶ 34. On June 17, 1998, a motion for continuance was discussed, during which the defendant's motion for special venire was ruled upon. Defense counsel acknowledged at the motion for continuance that he had informed the court administrator that the special venire request would be waived. Defense counsel then explained to the trial judge that subsequent to counsel's waiving of special venire, Mitchell was insisting that he have a special venire for his case. The trial court ruled that the demand for special venire was untimely and that Mitchell had waived his right to demand a special venire.

¶ 35. Mitchell now argues that a continuance should have been granted by the trial court for the purpose of summoning a special venire. Mitchell believes that because he did not personally agree to the withdrawal of the request for special venire that the withdrawal was not valid. Mitchell fails to cite any authority for this proposition causing consideration of this issue to be procedurally barred. Holland v. State, 705 So.2d 307, 329 (Miss.1997).

[4] [5] [6] ¶ 36. In addition, this issue is without merit. Any person charged with a capital crime, or with the crime of manslaughter, that has been arraigned and has entered a plea of not guilty is entitled to a special venire upon demand. Miss.Code Ann. § 13–5–77 (Supp.2000). The standard of review regarding a denial of a motion for a special venire comes from Davis v. State, 684 So.2d 643, 650 (Miss.1996), which states, “this Court will not overrule the lower court's denial of a motion for special venire except upon a showing of abuse of discretion.” The movant for special venire must make the request for special venire in a timely fashion. Id. (citing Williams v. State, 590 So.2d 1374 (Miss.1991)). It is also the responsibility of the movant to bring the motion to the attention of the trial court, otherwise the issue will be considered waived. Billiot v. State, 454 So.2d 445, 456 (Miss.1984).

¶ 37. In the present case, the trial judge did not abuse his discretion when he determined that the motion for special venire was untimely and that the right to demand a special venire had been waived. The defense gave every indication that it did not intend to pursue having a special venire until the Friday before this case was set to begin on the following Monday, rendering the request for special venire untimely and waived.

IV. WAS AN ILLEGAL WARRANTLESS ARREST OF MITCHELL MADE BY LAW ENFORCEMENT PERSONNEL? IF SO, DID THE TRIAL COURT ERR IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS?

¶ 38. Mitchell argues that his arrest was without probable cause and that the court erred in denying his motion to suppress statements and derivative evidence obtained from the arrest.

¶ 39. Two pursuits of Mitchell occurred before he was arrested. The first took place on foot as he ran from his residence. The second was a high speed chase as police pursued Mitchell in his car.

¶ 40. The facts known to the police prior to their decision to question Mitchell at his home were as follows: (1) Milliken had worked the 4:00–8:00 p.m. shift at the Majik Mart on November 21, 1995; (2) surveillance video at the store showed Mitchell coming into the store three different times that day talking to Milliken; (3) Milliken's coworker saw Milliken write down Mitchell's telephone number in her address book; (4) Milliken telephoned her son to inform him she would be home in fifteen minutes; (5) Milliken had left her personal belongings inside the store and stated that she was going outside to smoke a cigarette with Mitchell; (6) Milliken walked with Mitchell out of the store; (7) ten minutes later, Milliken's coworker stepped outside to ask her a question and realized that she was gone; (8) Milliken's car was still parked at the store; (9) two hours after Milliken had gone outside with Mitchell, she had still not returned, her personal effects were still at the store, and she had not gone home; (10) Milliken's coworker had called the police concerned about Milliken's whereabouts; (11) Milliken's coworker had told the police about Mitchell's visits, showed them the surveillance video, and Mitchell's telephone number in Milliken's purse; (12) the police had cross-referenced the telephone number, learned of Mitchell's address, and proceeded to 323 Croesus Street to see if Mitchell knew of Milliken's whereabouts.

¶ 41. The test for probable cause in Mississippi is the totality of the circumstances. Haddox v. State, 636 So.2d 1229, 1235 (Miss.1994). This Court has defined probable cause as:

a practical, nontechnical concept, based upon the conventional consideration of every day life on which reasonable prudent men, not legal technicians act. It arises when the facts and circumstances with an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Conway v. State, 397 So.2d 1095, 1098 (Miss.1980) (quoting Strode v. State, 231 So.2d 779 (Miss.1970)). An officer's knowledge before the pursuit is determinative of probable cause. Riddles v. State, 471 So.2d 1234, 1236 (Miss.1985).

¶ 42. Considering the facts and circumstances under which Milliken disappeared, it was not unreasonable for the officer to form a belief that a crime against Milliken had occurred. The information that was provided to the police seemed reasonable and trustworthy enough to connect Mitchell to the possible abduction.

¶ 43. There are three valid police tactics to investigate a possible crime as set out by this Court in Nathan v. State, 552 So.2d at 103: (1) Voluntary Conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative Stop and Temporary Detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made when the officer has probable cause. (citing Singletary v. State, 318 So.2d 873, 876 (Miss.1975)).

¶ 44. The officers in the present case chose to approach Mitchell and attempt to engage him in voluntary conversation, although they could have just as legally stopped and detained Mitchell. “Under the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions.” Kolender v. Lawson, 461 U.S. 352, 367, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

¶ 45. Officer McKaig found Mitchell standing in his back yard. McKaig identified himself and explained to Mitchell that he wanted to ask him some questions. Mitchell ran, ignoring McKaig's order to halt. Minutes later, Mitchell also ignored an order to halt when Officer Doucet saw Mitchell on Reynoir Street. Each of these orders to halt were legitimate under the law. Officers are permitted to stop and temporarily detain citizens for questioning when there is suspicion and/or arrest a citizen when probable cause exists. Nathan, 552 So.2d at 103 (citing Singletary, 318 So.2d at 876).

¶ 46. Here, the requisite suspicion existed to allow the officers to stop and detain Mitchell temporarily for questioning. Once he fled the officers and ignored their commands to halt, the officers, already possessing a reasonable suspicion, also obtained probable cause. This is consistent with Sibron v. New York, 392 U.S. 40, 66–67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), which states “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.”

¶ 47. Mitchell argues that his arrest began when McKaig spoke to Mitchell in his backyard, in accordance with Pollard v. State, 233 So.2d 792 (Miss.1970); Terry v. State, 252 Miss. 479, 173 So.2d 889 (1965); and Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961). However this pursuit did not result in arrest. Instead it resulted in the police issuing a be-on-the-lookout (“BOLO”) for Mitchell. Mitchell's argument that an arrest resulted from the events in Mitchell's backyard is incorrect.

¶ 48. After the BOLO had been issued on police radio, Officer Dawson, traveling in a marked police car, viewed a man and car fitting the description getting gasoline at a Shell station. As Dawson approached the gas station, Mitchell threw down the gas nozzle and sped away. Dawson stated that he immediately began following Mitchell's vehicle, but did not put on his lights and siren until he observed Mitchell run a red light on another street. Mitchell was eventually arrested for disturbing the peace, reckless driving, and resisting arrest.

¶ 49. This Court held in Ott v. State, 722 So.2d 576, 582 (Miss.1998), that “an officer may make a warrantless arrest based on his own personal observations or based on communications with other officers.” In this case, Officer Dawson relied on the BOLO that had been issued and his observance of Mitchell at the gas station. Dawson stated “(w)hat was going through my mind at that time is I'm looking for this vehicle, the other officers are wanting to talk to this guy, when he sees me he takes off ...”

¶ 50. Probable cause to arrest Mitchell existed when he received the BOLO and subsequently viewed Mitchell's vehicle matching the description. Hamburg v. State, 248 So.2d 430 (Miss.1971). Coupled with Mitchell's reaction by fleeing and stealing gas, Dawson had sufficient probable cause to pursue and arrest Mitchell.

¶ 51. The Biloxi Police Department had probable cause to arrest Mitchell at the outset of both pursuits that occurred. Accordingly, the trial judge did not err in denying the motion to suppress.

V. DID AN ILLEGAL TRESPASS BY LAW ENFORCEMENT PERSONNEL TAKE PLACE PRIOR TO THE ARREST OF THE DEFENDANT? IF SO, DID THE TRIAL COURT ERR IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS?

¶ 52. Mitchell asserts that the police officers made an illegal trespass onto the property where he was staying, and, as a result, evidence taken from his person and his car should have been suppressed by the trial court. Mitchell contends that, but for the illegal trespass he claims occurred, he would not have fled. Mitchell also asserts that evidence retrieved off of Mitchell's person and his car is directly attributable to Officer McKaig's initial trespass.

¶ 53. Once the police realized that Milliken seemed to have disappeared, Patrolmen McKaig, Doucet, and Matory visited Booker Gatlin's home (Mitchell's grandfather), where Mitchell had been residing. Officer Doucet instructed McKaig to go watch the back door, while he and Matory went to the front door. McKaig stated in his testimony that he was not given permission by an owner or occupant to go onto the property. As McKaig walked along the side, around to the rear of the house, he encountered Mitchell. Mitchell noticed him and asked who was there. McKaig responded by stating that it was the police and that he just wanted to talk to him. Mitchell then fled.

¶ 54. Mitchell contends that this constituted an illegal trespass on the part of the police. Mitchell refers to Davidson v. State, 240 So.2d 463 (Miss.1970), where this Court determined that a game warden had committed trespass when he entered upon Davidson's land to inspect a tractor. The warden then turned over information to the sheriff, who obtained a search warrant to go on the land where it was then determined that the tractor was stolen. Id. This Court ruled that the subsequent search by the sheriff was illegal because it was based on information illegally obtained by the warden. Id. at 463–64. The Court stated that “the right to be free from an illegal search and seizure is a right which the courts must vigilantly protect.” “This right to be secure from invasions of privacy by government officials is a basic freedom in our Federal and State constitutional systems.” Id. at 464.

¶ 55. Mitchell's reliance on Davidson is not well-founded. The holding in Davidson is that a search warrant cannot be sworn and executed based upon information that was obtained through an illegal trespass. Id. Davidson and the case at hand are easily differentiated. In Davidson, the warden was not on the land because of a possible theft of a tractor, whereas in the instant case the police were under the belief that Mitchell was the last person who had seen Milliken and were aware that she had disappeared under curious circumstances. Also the police in the present case did not gather evidence from Mitchell's car or clothing while on the premises to ask him questions. Only after other information was amassed through questioning of Mitchell and the discovery of Milliken's body, did the police obtain search warrants for Mitchell's body and vehicle.

¶ 56. This Court, in Waldrop v. State, 544 So.2d 834, 838 (Miss.1989), determined that a claim of police trespass cannot be made regarding areas that are typically used by visitors. This Court stated: It is not objectionable for an officer to come up upon that part of the property which has “been open to the public common use.” The route which any visitor to a residence would use is not private in the Fourth Amendment sense, and thus if police take that route “for the purpose of making a general inquiry” or for some other legitimate reason, they are free “to keep their eyes open ...” (citing 1 W. LaFave, Search and Seizure, § 2.3, at 318 (1978)). This Court continued quoting LaFave by stating:

Thus, when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. Id. The United States Supreme Court has also said that if property is exposed to the general public, then it is also equally available to the police. California v. Rooney, 483 U.S. 307, 324, 107 S.Ct. 2852, 97 L.Ed.2d 258 (1987).

¶ 57. In the instant case, Officer McKaig was in an area of common use, near the driveway and the back door. Mitchell had been in his car in his driveway, when he got out of his vehicle and first noticed Officer McKaig. An illegal trespass by the police did not occur in this case. The evidence eventually gathered from Mitchell's person and vehicle was not tainted by the police visiting Mitchell's residence to question him. Thus, the trial court did not err in denying Mitchell's motion to suppress the evidence.

VI. WAS EVIDENCE IMPROPERLY SECURED FROM THE DEFENDANT'S BODY AND SHOULD ALL OF THE EVIDENCE OBTAINED THROUGH THIS SEARCH WARRANT HAVE BEEN SUPPRESSED?

¶ 58. Mitchell asserts that Mississippi law does not provide for search warrants of the person and that the evidence collected from Mitchell should have been suppressed. The record indicates that a warrant was issued at 1:31 p.m. and executed at 3:10 p.m. on November 22, 1995, for the purpose of searching Mitchell's body. Evidence collected encompassed Mitchell's clothing, including blue jeans, and a suspect rape kit. Mitchell's motion to suppress this evidence was heard and denied June 4, 1998. Of all the evidence seized from Mitchell's person, it appears only the blue jeans with human blood on them were admitted at trial, rendering analysis of the admissibility of the rape suspect kit moot.

¶ 59. The Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), outlined several factors which must exist in order for an inventory search to be valid. First the thing or person searched must be lawfully in police custody. Opperman, 428 U.S. at 375, 96 S.Ct. 3092. Second, the inventory must be conducted pursuant to standard, routine police procedures. Id. at 372, 373–74, 96 S.Ct. 3092. This factor ensures that the intrusion is limited in scope to the extent necessary to carry out the care-taking function for which the search is made. Id. And finally, there must be no suggestion that the standard procedures are a pretext concealing an investigatory police motive. Id. at 376, 96 S.Ct. 3092. In his concurring opinion in Opperman, Justice Powell explained, “Inventory searches ... are not conducted in order to discover evidence of a crime.” Id. at 383, 96 S.Ct. 3092.

¶ 60. The Supreme Court has also stated that a warrant is not required for an inventory search because its justification does not rest on probable case. Illinois v. Lafayette, 462 U.S. 640, 643, 103 S.Ct. 2605, 77 L.E.2d 65 (1983). The case law contemplates the inventory search to be solely an administrative task. Opperman involved the search of a car impounded by the police department. In the cases involving inventory searches of persons, the search is conducted as part of a routine booking procedure. As The Supreme Court explained in Lafayette, an inventory search is “an incidental administrative step following an arrest and preceding incarceration.” Lafayette, 462 U.S. at 644, 103 S.Ct. 2605.

¶ 61. The search in the case at hand clearly does not meet the criteria of a valid inventory search. The fact that the return on the search warrant contains a listing titled “inventory of things taken pursuant to the warrant” does not mean a routine inventory search was conducted here. Based upon the record, it is clear that the warrant was sought and the search conducted in order to obtain items of evidentiary value. There is nothing in the record which indicates this was a standard, administrative search conducted pursuant to routine procedures. Neither is there evidence which suggests that had the search warrant not been executed, Mitchell's clothing would have been seized at the police station for purposes of inventory. At the suppression hearing, the prosecutor stated, “I agree with [defense counsel] that there is no evidence whatsoever that these articles were taken other than for any other reason other than pursuant to the search warrant.”

¶ 62 A similar scenario existed in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.E.2d 771 (1974). Edwards was lawfully arrested and charged with attempting to break into a post office. He was booked and placed in a cell. Shortly thereafter, investigation revealed that entry had been made through a wooden window, leaving paint chips on the window. The next morning, Edward's clothing was taken from him and held as evidence as examination of the clothing revealed matching paint chips. It is important to note, and this Court has recognized, that Edward's clothes were seized not as part of a routine booking procedure, but in order to obtain evidence of the crime for which he had been arrested. See Rankin v. State, 636 So.2d 652, 657 n.8 (Miss.1994). The Supreme Court explained that the search was a valid warrantless search incident to a custodial arrest. Edwards, 415 U.S. at 801, 94 S.Ct. 1234. The Court explained that such searches are justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime. Id. at 804, 94 S.Ct. 1234. The Court stated that searches and seizures that could be made on the spot at the time of arrest may be conducted later when the accused arrives at the place of detention. Id. (citing Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.E.2d 668 (1960)).

¶ 63 This Court relied upon Edwards in Rankin v. State, 636 So.2d 652 (Miss. 1994). In Rankin, the defendant was arrested for carrying a concealed weapon. When he arrived at the jail, officers searched the defendant's jacket and found cocaine. The defendant was then placed under arrest for possession of cocaine. On appeal, the defendant argued that his clothing was illegally searched. This Court set forth two grounds in holding that the strictures of the Fourth Amendment were met by the search. First the Court noted that because the personal effects of one under lawful custodial arrest were subject to search at the time and place of arrest, they were likewise subject to a warrantless search at the place of detention. Id. at 657. Second, the Court stated that the search was also valid as “part of a routine inventory search at the place of detention, incident to processing the arrestee.” Id.

¶ 64 Based upon the first rationale expressed in Rankin, a valid warrantless search of Mitchell's personal effects occurred at the site of where he was being detained after a lawful custodial arrest. The trial court properly denied the suppression of such evidence. This issue is without merit.

VII. WERE THE DEFENDANT'S SPEEDY TRIAL RIGHTS VIOLATED?

¶ 65. Mitchell asserts that his speedy trial rights were violated. A careful review of the record yields the following chronology of Mitchell's case:

November 22, 1995 Mitchell arrested for traffic violations, and subsequently arrested for Milliken's murder. Mitchell makes his initial appearance on the capital murder charge. Warrant is issued for Mitchell's arrest for parole violations (illegal use of drugs or alcohol).

April 16, 1996 Mitchell files demand for speedy trial through attorney Keith Roberts.

July 25, 1996 Mitchell is indicted on his first indictment

August 5, 1996 Mitchell files pro se demand for a speedy trial.

October 1, 1996 Mitchell files pro se motion to dismiss charge for lack of speedy trial.

October 10, 1996 Mitchell arraigned on first indictment. Addressing the speedy trial request, the trial judge offers to “put the jury in the box tomorrow or next week.” Mitchell declines, explaining that he and the State agree on trial date for February 10, 1997.

January 21, 1997 Mitchell files for continuance for trial set for February 10, 1997.

January 31, 1997 Correction made on date originally set for trial (February 3rd instead of 10th); motion for continuance made by defense is discussed. Defense counsel mentions reasons for making continuance motion including the need for access to physical evidence related to Mitchell's vehicle and lab samples, and the need to view evidence in order to get expert testimony prepared. Prosecutor notes that defense has not requested any physical evidence go to a laboratory or expert. Trial judge continued the case until a scheduling order could be set and sets February 14, 1997 as the date of the status conference to determine the scheduling order. The trial judge remarked that the continuance would run against Mitchell for the purpose of speedy trial determinations and mentioned again that if Mitchell wanted “a speedy trial, we can put the jury in the box.” The resulting scheduling order included Mitchell's waiver of all speedy trial rights.

October 21, 1997 Status conference held where the State announced it would be prepared to go forward with trial on November 3, 1997 but was undecided on the issue if the trial judge granted defense's motion to suppress the confession. Defense mentioned they were prepared either way. Roberts, Mitchell's attorney, explains that he feels the speedy trial issue is frivolous due to Mitchell having his parole revoked and that he has not continued to pursue the speedy trial issue because he and Mitchell disagree on if there is a violation.

October 28, 1997 Hearing occurs regarding defense counsel's motion to withdraw. Mitchell states that he “acted a little bit hasty” and withdraws his request to fire his attorney. Defense counsel not prepared to argue pretrial motions due to the pre-existing conflict with Mitchell. Defense counsel moves ore tenus to expand time to file motions, and to schedule suppression hearing for November 6, 1997. Defense counsel asks for trial in January or February (trial had been scheduled for November 3, 1997). Defense counsel and Mitchell waive all speedy trial rights associated with motion for continuance and modification of scheduling order.

November 3, 1997 Mitchell's motion for a continuance granted. The trial is rescheduled for March 30, 1998.

January 17, 1998 Trial judge grants Mitchell's motion to substitute Pisarich for Roberts as attorney of record.

February 5, 1998 Mitchell, by and through his new attorney, files several motions, including a motion to re-open the court's hearings on the previous motions for a speedy trial.

February 6, 1998 Motion hearing held. Mitchell is represented by Pisarich and Musselman (as opposed to previous representation of Roberts and Musselman). Pisarich had filed several motions the day before and agreed to continue the motions. Mitchell consents to the continuance.

March 24, 1998 Mitchell, through his attorneys, files motion for continuance and waives his speedy trial rights for the time period from when the trial had been set, March 30, 1998, until the time of the new trial. The trial is set for July 20, 1998.

April 3, 1998 Motion hearing is held on the motion to suppress.

April 29, 1998 Mitchell is indicted on his second indictment to correct a scrivener's error that occurred on the original indictment.

June 3, 1998 Mitchell, through his attorneys, files another motion to re-open the court's hearing on the previous motions for a speedy trial. June 4, 1998, A hearing is held. Mitchell is arraigned on the second indictment. Mitchell pleads not guilty. Defense counsel concedes that the speedy trial issue has never been fully presented to the trial court. The trial judge, at defense counsel's request, reserved ruling on the motion for a speedy trial for the next hearing date.

June 8, 1998 Mitchell, through his attorneys, files “motion to dismiss based on violations of defendant's rights to a speedy trial” and a request for an evidentiary hearing.

July 15, 1998 Mitchell, through his attorneys, moved for a continuance based upon his demand for special venire.

July 17, 1998 A hearing is held. The trial judge comments that this is the first time that the issue of a speedy trial has been presented for consideration by stating:

But isn't it kind of ironic that the first time that it's brought up is less than 72 hours before the trial that is to be had on Monday? I can't give you any speedier trial. If you demand for a speedy trial and I want to give you a speedy trial, I can't give you one any quicker than three days; do you understand that?” Prolonged discussion of the speedy trial issue occurs, including testimony from Mitchell on the matter. The trial court overrules the motion for a speedy trial and states the following: And when they make a demand for a speedy trial, and if it would have been brought to my attention and they asked for a speedy trial, you know, we would have given him one in three weeks after he asked for it if the parties would have been ready. But I think all of us know in a capital death case that it takes a little bit more studied effort on the part of all parties to get the matter ripe for trial. The second part is that if my family and I, and I've never done it, made a reservation to go to Disney World and for whatever reason we decided that we couldn't make it and we canceled it, it would be at least a year, I understand, before the space at Disney World would be available for our family to get there. When we have a case set for trial and we take it off the trial docket, you know, I've tried Richard Gerald Jordan, I think other capital murder trials, and because of the size of this docket it is just extremely difficult to have a judge and a contract defender or public defender and prosecutor doing nothing but waiting to go to trial on these death cases. I have reviewed in my mind all that I can recollect concerning the hearings that we have had. Of course the record would be specific on it. But under the totality of the circumstances of the evidence that's before the Court, both presented here today as well as what's been presented in the other hearings, I'm going to find that the motion is not well taken. I'll deny the motion for a speedy trial.

¶ 66. Mitchell asserts that he has been denied a speedy trial, under the 270 day statute and the state and federal constitutions. Miss.Code Ann. § 99–17–1 (2000), the statutory speedy trial rule, provides: Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned. “The right to a speedy trial is guaranteed by the sixth and fourteenth amendments to the United States Constitution and art. 3, § 26 of the Mississippi Constitution of 1890.” Watts v. State, 733 So.2d 214, 235 (Miss.1999).

¶ 67. “The constitutional right to speedy trial attaches at the time when the defendant is first effectively accused of the offense.” Gray v. State, 728 So.2d 36, 47–48 (Miss.1998) (citing Perry v. State, 419 So.2d 194, 198 (Miss.1982)). This Court has held this to begin at the “ ‘time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge.’ ” Perry v. State, 637 So.2d 871, 874 (Miss.1994) (quoting Lightsey v. State, 493 So.2d 375, 378 (Miss.1986)).

¶ 68. Mitchell was arrested November 22, 1995. He was first indicted on July 25, 1996. Mitchell's arraignment on his first indictment occurred October 10, 1996. On April 29, 1998, Mitchell was indicted on his second indictment to correct a scrivener's error that occurred on the original indictment. Mitchell was arraigned on his second indictment on June 4, 1998. He was tried on July 20, 1998.

¶ 69. This Court has dealt with a speedy trial claim where the defendant was re-indicted for the same crime. This Court determined: under Miss.Code Ann. § 99–17–1, defendants are entitled to a speedy trial within 270 days of the date of arraignment. This court, however, has held that where a defendant is re-indicted for the same crime, the 270 day rule does not begin to run until the arraignment on the re-indictment. See Corley v. State, 584 So.2d 769, 771–72 (Miss.1991) (citing Moore v. State, 556 So.2d 1031, 1033 (Miss.1990)); Galloway v. State, 574 So.2d 1,2 (Miss.1990).

State v. Shumpert, 723 So.2d 1162, 1165 (Miss.1998). “Further, the statute is not applicable to delays between the alleged act and the indictment.” Coleman v. State, 725 So.2d 154, 156 (Miss.1998). Approximately 46 days passed between Mitchell's arraignment on the second indictment and Mitchell's trial.

¶ 70. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), provides the test for determining whether there has been a constitutional violation of the right to speedy trial. The test requires consideration of the following factors: “(1) length of the delay, (2) reason for the delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant.” Wall v. State, 718 So.2d 1107, 1113 (Miss.1998).

No mechanical formula exists according to which these factors must be weighed and balanced. The weight given each necessarily turns on the peculiar facts and circumstances of each case, the quality of evidence available on each factor and, in the absence of evidence, identification of the party with the risk of non-persuasion. No one factor is dispositive. A sensitive weighing and balancing of all remain our touchstone. Jaco v. State, 574 So.2d 625, 629 (Miss.1990).

¶ 71. Analysis of the four Barker factors in the instant case is as follows:

A. Length of delay. ¶ 72. “This first step under Barker acts as a ‘triggering mechanism.’ Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991); Smith v. State, 550 So.2d 406, 408 (Miss.1989). If the delay is not presumptively prejudicial there is no need for further inquiry under Barker.” Hurns v. State, 616 So.2d 313, 317 (Miss.1993). The length of delay is measured by the period of time between the defendant's accusation and trial. Accusation is defined as the initiation of prosecution by “arrest, indictment, or other official accusation”. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Mitchell was arrested on November 22, 1995, and went to trial on July 20, 1998, a delay of 970 days from the time of his arrest.

B. Reason for delay. ¶ 73. This factor evaluates the prosecution's reasons for the delay. Mitchell asserts that the prosecution, “on a number of occasions” failed to provide timely discovery material to the defense. Mitchell fails to provide a specific example of when the prosecution was late in delivering discovery material. The record shows that the trial judge was prepared to empanel a jury, any time after October 10, 1996. Mitchell frequently requested or consented to a number of continuances, including as late as July 17, 1998, which was Friday before the trial began on Monday. In almost all of these continuances, Mitchell waived his speedy trial rights. The record reflects that Mitchell requested at least three continuances which were granted by the trial judge. Mitchell's need for continuances included: the need to access materials to physical evidence related to Mitchell's vehicle and lab samples in order to prepare expert testimony (Mitchell had not requested any physical evidence go to a laboratory or expert); Mitchell's counsel was unprepared to go forward with defense's motions because he (Roberts) was making a motion to withdraw as counsel when a reconciliation between Mitchell and his counsel occurred; and, because Mitchell's new counsel (Pisarich) needed additional time to prepare his motions and review discovery in the case. It is clear from the record that the State is not responsible for the delays in the instant case.

C. Defendant's assertion of right to a speedy trial.

¶ 74. The third factor to be weighed is a defendant's assertion of a speedy trial right. Barker, 407 U.S. at 531–32, 92 S.Ct. 2182. The defendant does not waive his right by failing to assert. Id. at 528, 92 S.Ct. 2182. The record shows that Mitchell filed a demand for speedy trial through attorney Keith Roberts on April 16, 1996; a pro se demand for a speedy trial on August 5, 1996; and, a pro se motion to dismiss charge for lack of speedy trial on October 1, 1996. While these motions were filed with the trial court, they were not brought before the trial court for discussion until the Friday before the trial was to begin the following Monday.

¶ 75. An analogous issue was considered by this Court in a case where the defendants (Steve and Jerry) did not present the speedy trial issue to the trial judge until the day before the cases were set for trial. Jaco v. State, 574 So.2d at 632. This Court stated:

Of course, an accused has no duty to bring himself to trial. Barker at 527, 92 S.Ct. 2182; Vickery v. State, 535 So.2d at 1377; Williamson v. State, 512 So.2d 868, 877 (Miss.1987); Reed v. State, 506 So.2d 277, 281 (Miss.1987); Nations v. State, 481 So.2d 760, 761 (Miss.1985); Turner v. State, 383 So.2d 489, 491 (Miss.1980). Still he gains far more points under this prong of the Barker test where he has demanded a speedy trial. On the present record, neither Steve or Jerry gets any points. Jaco, 574 So.2d at 632.

¶ 76. Mitchell made little attempt to expedite the proceedings against him. In making his multiple motions for continuance he knowingly waived his right to a speedy trial each time. It should be further noted that the trial judge repeatedly commented that he was willing to get a jury empaneled if Mitchell chose to pursue the motions for speedy trial that had been filed. When Mitchell finally asserted his right to a speedy trial, it was not done in a timely fashion.

D. Prejudice to the defendant.

¶ 77. In considering the amount of prejudice to the defendant this Court must look to three interests for which the speedy trial right was designed: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182.

¶ 78. Mitchell points to the fact that he was incarcerated for 970 days before going to trial as his prejudice, but he does not provide any specific example of how his defense was hampered by delay in this case. Mitchell incarceration was not only the result of being accused of murder, but was also for violations of his parole. In Hurns v. State, 616 So.2d 313, 318 (Miss.1993), where the defendant was already incarcerated and failed to “even attempt to show particularized prejudice”, this Court weighed the factor of prejudice to the defendant in the favor of the State.

¶ 79. Mitchell contends that the trial judge applied an erroneous standard. The trial judge held a lengthy hearing and based his ruling on “the totality of the circumstances,” as outlined in Watts v. State, 733 So.2d at 235: No single factor is dispositive. Skaggs, 676 So.2d at 900. Rather, this Court looks at the totality of the circumstances in determining whether a defendant's rights have been violated. Herring v. State, 691 So.2d 948, 955 (Miss.1997).

In Watts the delay at issue was 959 days. This Court determined the following: Given that the delays in Watts' trial were not attributable to the State, but to the defendant's first three motions for continuances, that Watts made no effort to assert his rights prior to trial and that he has not alleged any prejudice, it cannot be said that his constitutional right to a speedy trial was violated. Watts, 733 So.2d at 236.

¶ 80. Mitchell complains that the trial judge did not make any findings on the record as to any Barker factor and asserts that the trial judge should have determined whether § 99–17–1 was applicable and then made a detailed analysis of the Barker factors to show the amount of time that should be held against the State and Mitchell. In ruling on the speedy trial issue, the trial judge stated:

I have reviewed in my mind all that I can recollect concerning the hearings that we have had. Of course the record would be specific on it. But under the totality of the circumstances of the evidence that's before the Court, both presented here today as well as what's been presented in the other hearings, I'm going to find that the motion is not well taken. I'll deny the motion for a speedy trial.

A trial judge's finding is entitled to the same deference as a jury verdict and will not be reversed upon appeal unless manifestly wrong. Humphrey v. State, 759 So.2d 368, 375 (Miss.2000) (citing Jenkins v. State, 607 So.2d 1137, 1138 (Miss.1992)). Although it may be preferred that a trial judge be more specific in his or her findings regarding the Barker factors, the trial judge's failure to specifically enunciate those findings does not rise to the level of “manifest wrong” that is needed to warrant a reversal.

¶ 81. After careful review of the facts of this case and the Barker factors, this Court finds that Mitchell's right to a speedy trial was not violated.

VIII. DID THE STATE PROPERLY ESTABLISH THE VALIDITY OF THE DEFENDANT'S MURDER CONVICTION (THE PREDICATE OFFENSE) IN ORDER TO ENHANCE THE INSTANT OFFENSE TO THAT OF CAPITAL MURDER?

¶ 82. Mitchell asserts that his 1975 murder conviction and resulting life sentence were not properly documented, which Mitchell claims was necessary before the prosecution could use the 1975 conviction to raise the instant offense to capital murder. Mitchell contends that a written judgment should have been presented to the trial court by the prosecution to prove that Mitchell had been convicted in Cause No. 900 in 1975. Instead of presenting a written judgment, the prosecution provided the minute book showing Mitchell's previous conviction and sentence were in the form of a written order. Mitchell alleges that the minute book entry as to Cause No. 900 is faulty because there is not a judge's signature at the bottom of the order. Mitchell relies on Temple v. State, 671 So.2d 58, 59 (Miss.1996), where this Court stated that “in order for a sentence to be valid, a judgment must be entered as of record.”

[29] ¶ 83. Mitchell's assertion regarding the trial judge's signature is incorrect because the minute book was signed by the trial judge at the conclusion of the court term. This Court stated in Jackson v. Schwartz, 240 So.2d 60, 62 (Miss.1970), “that the date of rendition of the judgment of the circuit court in term time, as well as in vacation, is the date when the judgment is signed by the judge and filed with the clerk for entry on the minutes; or if the judgment is not signed by the judge, the rendition date is the date it appears on the minutes of the court.” Use of the minutes book of the trial court to document Mitchell's previous conviction and sentence was proper. Therefore, this issue is without merit.

IX. DID THE PROSECUTION COMMIT A DISCOVERY VIOLATION AND DID THE TRIAL COURT ERR IN SUBSEQUENTLY ALLOWING THE EVIDENCE TO BE ADMITTED AND NOT GRANT A CONTINUANCE TO THE DEFENSE?

¶ 84. Mitchell contends that the trial judge erred during the sentencing phase when Dr. Paul McGarry's testimony was allowed to be heard. When McGarry was questioned by the prosecution concerning the sequence of injuries to Milliken's body and her pain and suffering, the defense objected, claiming there were discovery violations that should result in McGarry not being able to testify further.

¶ 85. Mitchell asserted at trial that McGarry was testifying to facts that were not listed specifically in his reports and that the prosecution was attempting to put McGarry “on the stand and allow him free reign as to opinions” that were not supplied to the defense absent the autopsy report. The trial judge attempted to remedy what he perceived as a potential problem by affording defense counsel the opportunity to interview Dr. McGarry. Upon completing a brief interview with McGarry, defense counsel moved for a continuance based on statements made by McGarry that there may be other experts that would have more favorable opinions for the defense. The trial judge denied Mitchell's motion for continuance.

¶ 86. The prosecution argues that Mitchell waived any right to complain when Mitchell failed to object to Dr. McGarry's testimony during the guilt phase of the trial and that McGarry's testimony in the guilt phase and sentencing phase were similar.

¶ 87. Mitchell claims that McGarry's testimony in the guilt and sentencing phases were markedly different resulting in Mitchell being “surprised” by the information that McGarry was offering. Mitchell also believes that only during the sentencing phase did McGarry's testimony exceed the limit of the discovery materials that had been provided by the prosecution, making Mitchell's lack of objection in the guilt phase insignificant.

¶ 88. Discovery in criminal cases is governed by Rule 9.04 (formerly 4.06 of the Mississippi Uniform Criminal Rules of Circuit Court Practice) of the Uniform Circuit and County Rules. Rule 9.04(I) states: If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:

1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and) 2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the nondisclosed evidence or grant a mistrial. 3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence. U.R.C.C.C. 9.04(I)

¶ 89. Dr. McGarry's testimony in the guilt phase was substantially similar to the testimony he gave in the sentencing phase. McGarry's graphic testimony in the guilt phase included comments about the horrific injuries that Milliken sustained and the order in which these injuries most likely occurred, which goes toward the pain and suffering that the prosecution was attempting to show in the sentencing phase.

¶ 90. In Holland v. State, 705 So.2d 307 (Miss.1997), a case involving the same Dr. McGarry, this Court held that this issue was procedurally barred because the defendant had failed to raise it during the guilt phase of the trial. This Court further held that the argument was also without merit:

Holland failed to raise this objection during the guilt phase. See Holland v. State, 587 So.2d 848, 865–68 (Miss.1991) (discussing Holland's trial phase objections to Dr. McGarry's testimony, speculation not being one of them). As a result, Holland's objection is barred for not having been brought contemporaneously in the trial phase. Box v. State, 610 So.2d 1148, 1154 (Miss.1992). Since all trial evidence can be used in the sentencing phase, where relevant, the reintroduction of this evidence now raises no error. Hill v. State, 432 So.2d 427, 441 (Miss.1983).

The bar notwithstanding, alternatively considering the issue on the merits, Dr. McGarry's testimony was not rank speculation. The general standard of review for the admissibility of qualifications of an expert to testify to areas of scientific knowledge is abuse of discretion. Hall v. State, 611 So.2d 915, 918 (Miss.1992). The State demonstrated that Dr. McGarry's testimony fell within the bounds of forensic pathology by demonstrating that his expertise dealt with wounds, suffering, and the means of infliction of injury. Our caselaw, as well as that of other states, permits this type of testimony. Simmons v. State, 105 Miss. 48, 57, 61 So. 826, 828 (1913) (physician may testify as to effect of sexual intercourse upon child's female organs).

Discussion of pain by a forensic pathologist is admissible. Our caselaw has allowed forensic evidence to prove that a victim suffered a fatal heart attack as a result of trauma and stress induced by a beating and robbery. Whittington v. State, 523 So.2d 966, 976 (Miss.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988); Jackson v. State, 441 So.2d 1382, 1383 (Miss.1983).

Thus, in Mississippi, a forensic pathologist may testify as to what produced the injuries in this case and what trauma such an injury would produce. [footnote omitted] Given Dr. McGarry's qualifications in forensic pathology as well as that which the field of forensic pathology encompasses, we find that this assignment of error is without merit. Holland v. State, 705 So.2d at 341. This Court has also determined that this type of evidence is admissible to show that the crime was “ ‘especially heinous, atrocious or cruel.’ ” Evans v. State, 725 So.2d at 692.

¶ 91. Because Dr. McGarry's testimony during the sentencing phase was substantially similar to what he offered, without objection, during the guilt phase, McGarry's testimony was properly admitted. Mitchell refers to Harrison v. State, 635 So.2d 894 (Miss.1994), to bolster his assertion he did not have a reasonable time period in which to interview the State's expert and that the testimony was improperly admitted. In Harrison the defendant was aware that the expert (the same Dr. McGarry) would testify and also had a copy of the doctor's autopsy report, yet Harrison made no effort to question the pathologist. Id. at 899. This Court ruled that the trial judge made no attempt to comply with the Box analysis and reversed Harrison's conviction and sentence. Id. at 894. Mitchell believes that, although he was provided an opportunity to interview McGarry by the trial judge, that it was insufficient compared to the unlimited access the defense had in Holland. In Harrison the disputed testimony appears to have occurred during the guilt phase, not the sentencing phase. In the instant case, Mitchell did not object to the testimony being provided during the guilt phase of the trial, foreclosing his opportunity to object to like testimony during the sentencing phase, in accordance with Holland. The fact that the trial judge provided Mitchell an opportunity to interview the expert prior to his testimony during sentencing does not serve as proof that a discovery violation had occurred. The trial judge did not err in denying a continuance to the defense. This issue is without merit.

X. DID THE TRIAL COURT ERR IN NOT ALLOWING DEFENSE COUNSEL TO CROSS–EXAMINE CURTIS PEARSON REGARDING PRIOR FELONY CONVICTIONS?

¶ 92. Mitchell argues that the trial judge erred in not allowing the defense to cross-examine Curtis Lee Pearson about his prior burglary convictions. Pearson was a passenger in Mitchell's vehicle during the high-speed chase that led to Mitchell's arrest. Pearson testified that, during the chase, Mitchell stated two or three times that, “I got that bitch.” On cross-examination, the defense attempted to ask Pearson about his prior burglary convictions, but were prohibited by the trial judge in accordance with Rule 609(a), because the burglaries did not involve a crime of dishonesty or false statement. M.R.E. 609 provides the following:

RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect on a party or (2) involved dishonesty or false statement, regardless of the punishment. M.R.E. 609(a).

¶ 93. Outside the presence of the jury, Pearson testified that he had pled guilty to burglary charges three to five times in the last ten years. At the time of trial, Pearson was in custody of the Department of Corrections of Mississippi for a 1997 burglary conviction. The proffer continued with Pearson testifying that when he was arrested for the 1997 conviction, he was “on dope”, when he entered an abandoned building across from his home. There the police apprehended him while he was “sitting on the commode.” The trial judge ruled by stating: If I don't made the record finding [under M.R.E. 609(a)(1) ] then it doesn't go in. I was seeking some guidance from the moving party to make that for the Court's benefit.

Based on what record is in this case at this time concerning the elements and facts surrounding the burglary, and the only burglary that I have is the one that I can consider, there is no other record made concerning the previous ones but that would be the last one where he said that he was sitting on the commode in the place in the daytime. I certainly don't think that would fall within the rules to permit that to go to the jury. It's the Court's position that our Supreme Court has adopted the position that they have adopted, which I have to follow, concerning burglary [under 609(a)(2) ] and I going to sustain the objection of the State.

Mitchell incorrectly asserts that the trial judge failed to make the required on-record determination pursuant to Rule 609(a)(1), but it is clear from the trial judge's comments in his ruling that he would have done so if the defense had presented anything of probative value regarding the burglary conviction and its relation to the instant case.

¶ 94. The issue of Pearson's burglary convictions was also addressed later in the trial. The trial judge took judicial notice of Pearson's prior convictions from the previous ten years. It was later published to the jury that Pearson had four separate burglary convictions: two in 1991, one in 1992, and one in 1996.

¶ 95. The standard of review for evidentiary matters has been stated by this Court as follows:

The relevancy and admissibility of evidence are left, in large part, to the discretion of the trial court. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. Id. Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected. Green v. State, 614 So.2d 926, 935 (Miss.1992); M.R.E. 103(a). Johnson v. State, 666 So.2d 499, 503 (Miss.1995).

¶ 96. It has been established by this Court “that burglary is not ordinarily admissible as a crime involving dishonesty or false statement under M.R.E. 609(a)(2).” Johnston v. State, 618 So.2d 90, 94 (Miss.1993) (citing Townsend v. State, 605 So.2d 767, 770 (Miss.1992)). Therefore, if there is an issue regarding the admissibility on cross-examination of Pearson's burglary convictions, it must fall under M.R.E. 609(a)(1).

¶ 97. “M.R.E. 611(b) allows wide-open cross-examination so long as the matter probed is relevant.” Johnston, 618 So.2d at 93. In the instant case, Pearson's burglary convictions were not relevant to any material fact, and were properly excluded under M.R.E. 609(a) due to their lack of probative value. The fact that Pearson's four burglary convictions were published to the jury subsequent to the trial judge's ruling in question does not support the conclusion that such information should have been found relevant in the earlier ruling. The publishing of Pearson's burglary convictions to the jury constituted an admission of irrelevant evidence, but did not constitute an abuse of discretion on the part of the trial judge, as such information had no adverse effect on any substantial right of Mitchell's. Neither was there an abuse of discretion on the part of the trial judge, or a substantial right of Mitchell's violated when the trial judge excluded cross-examination on Pearson's burglary convictions. This issue is without merit.

XI. WAS THE DEFENDANT ENTITLED TO A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER?

¶ 98. Mitchell claims that the trial judge erred in denying instruction D–13, which would have instructed the jury on manslaughter. Mitchell complains that by refusing the defense jury instruction, which would have included a heat of passion defense, he was left without a theory to argue in closing arguments to the jury. Mitchell is incorrect in his assertion that the trial judge erroneously excluded the jury instruction. Such an instruction was unsupported by the evidence presented at trial. This Court has stated:

Jury instructions should be given only if they are applicable to the facts developed in the case being tried. Lancaster v. State, 472 So.2d 363, 365 (Miss.1985) (citing Pittman v. State, 297 So.2d 888, 893 (Miss.1974)). To grant an instruction that is not supported by the evidence would be error. Id. Walker v. State, 740 So.2d 873, 888 (Miss.1999).

¶ 99. Manslaughter is defined as “[t]he 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.” Miss.Code Ann. § 97–03–5 (Supp.1994).

¶ 100. This Court has addressed lesser-included offense instructions:
Lesser-included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense.... A lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of a lesser-included offense (conversely, not guilty of at least one essential element of the principal charge). Hobson v. State, 730 So.2d 20, 26 (Miss.1998) (quoting Welch v. State, 566 So.2d 680, 684 (Miss.1990)).

¶ 101. This Court has also defined heat of passion:
In criminal law, a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. Tait v. State, 669 So.2d 85, 89 (Miss.1996) (quoting Buchanan v. State, 567 So.2d 194, 197 (Miss.1990)). Underwood v. State, 708 So.2d 18, 36 (Miss.1998).

¶ 102. When there is a lack of evidence that the killer acted “out of provoked passion, anger, rage, hatred, furious resentment, or terror”, then a heat-of-passion manslaughter instruction is properly denied. Id. at 36. No evidence presented at trial showed that Mitchell had displayed the heat-of-passion emotions. The video published during the trial showed Mitchell explaining that Milliken had slapped him, and as a “reflex”, he “hit her.” This is the only evidence received by the jury that might have shown that heat of passion was an element of the crime. Nothing else presented to the jury would support a manslaughter instruction. Moreover, the slap and reflexive hit administered by Mitchell occurred in a mall parking lot, not where Milliken was subsequently killed. In an act of premeditation, Mitchell took Milliken to the area under the bridge, beat and strangled her, ran over her, and eventually killed her by crushing her skull with his vehicle. As this Court stated in Berry v. State, 575 So.2d 1, 12 (Miss.1990), “No reasonable hypothetical juror could find that this killing was without malice”; therefore, the defendant “was not entitled to a manslaughter instruction.” Mitchell's actions were not without malice. Therefore, a manslaughter instruction was not appropriate in this case. This issue is without merit.

XII. DID THE TRIAL COURT ERR IN GRANTING THE SENTENCING INSTRUCTION WHICH INCLUDED THE AGGRAVATING CIRCUMSTANCE “WHETHER THE CAPITAL OFFENSE WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR PREVENTING ARREST OR EFFECTING AN ESCAPE FROM CUSTODY?”

¶ 103. Mitchell contends that the prosecution did not advance evidence to support a theory that Milliken's murder was committed for the purpose of avoiding or preventing his detection and lawful arrest. This contention is not well-founded.

¶ 104. This Court has stated the standard for reviewing the sufficiency of evidence to support an “avoiding lawful arrest” instruction: [i]f there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killings to “cover their tracks” so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance.

Under this construction the Court properly submits this aggravator to the jury if evidence existed from which the jury could reasonably infer that concealing the killer's identity, or covering the killer's tracks to avoid apprehension and arrest, was a substantial reason for the killing. Manning v. State, 735 So.2d 323, 350 (Miss.1999).

¶ 105. Mitchell points to Taylor v. State, 672 So.2d 1246 (Miss.1996), as an example of a factually similar case where this Court concluded that there was not sufficient evidence to show that a defendant committed a murder in the hope of avoiding apprehension and arrest. Taylor dealt with the brutal killing of a victim that the defendant had taken for a drive and killed. Almost two months after the murder, the victim's mutilated body was found in the car she had been driving the day she disappeared. The victim was identified by the clothing and personal effects found at the scene. This Court correctly determined that there was a lack of evidence to show that Taylor had committed the murder in the hope of avoiding lawful arrest and that the granting of such an instruction constituted reversible error.

¶ 106. The instant case is factually distinguishable from Taylor because there is sufficient evidence in the record to show that Mitchell murdered Milliken in an attempt to cover up evidence that he had inflicted the injuries she had received by his hand, all in the hope of avoiding arrest. Prior to her skull being crushed under the weight of Mitchell's vehicle, Milliken was the recipient of a beating, strangulation and sexual assault. According to Mitchell, some of these initial injuries were caused while they were in a mall parking lot. She was then taken to a different location where she was injured further, repeatedly run over, and then finally murdered. It is reasonable to conclude that Mitchell's act of repeatedly crushing and mangling her was done in the hope of covering up the injuries he had administered earlier. Mitchell also took her under a bridge in order to run-over her.

¶ 107. The surveillance tape from the convenience store shows that Milliken was fully clothed when she left work that evening. When her body was discovered she was almost completely unclothed, lending further to a reasonable belief that Mitchell had discarded most of her clothing and shoes in the hope of covering his tracks. These facts clearly demonstrate that there was sufficient evidence that the murder was committed in an effort to avoid lawful arrest. As such, this issue is without merit.

XIII. IS THE IMPOSITION OF THE DEATH PENALTY EXCESSIVE OR DISPROPORTIONATE IN THIS CASE?

¶ 108. Miss.Code Ann. § 99–19–105(3) (Supp.2000) requires that a proportionality review be conducted by this Court when affirming a death sentence in a capital case. Section 99–19–105(3) states: (3) With regard to the sentence, the court shall 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 finding of a statutory aggravating circumstance as enumerated in Section 99–19–101; (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and (d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error, or both.

¶ 109. A careful review of the record in this appeal and death penalty cases listed in the appendix leads us to conclude that Mitchell's death sentence was not imposed under the influence of passion, prejudice or any other arbitrary factor. Also, as discussed in issue XII, the evidence is more than sufficient to support the jury's finding of statutory aggravating circumstances. Further, upon comparison to other factually similar cases where the death sentence was imposed, the sentence of death is neither excessive nor disproportionate in this case.

¶ 110. Having given individualized attention to Mitchell and the crimes in the case sub judice, this Court concludes that there is nothing about Mitchell or his crimes that would render the sentence of death excessive or disproportionate in this case. The record reflects that Mitchell: (1) hit Milliken in a mall parking lot; (2) took her to another location where he proceeded to beat, strangle and sexually assault her; and (3) eventually murdered her by repeatedly running over her with his vehicle. Considering these facts in comparison to other cases, there is nothing that would disqualify this defendant from receiving the death penalty. See, e.g., Hughes v. State, 735 So.2d 238 (Miss.1999) (death sentence was proportionate where the defendant beat, raped, stabbed and strangled the victim and then set her chest on fire after she was dead and dumped her body in an abandoned house, leaving it to rot); Gray v. State, 728 So.2d 36 (Miss.1998) (death sentence was proportionate where the defendant abducted the victim from her home, forced her to withdraw money from her bank account, raped her, shot her in the face with a shotgun, ran over her with her own car, and eventually murdered her); Holland v. State, 705 So.2d 307 (Miss.1997) (death sentence was proportionate where the defendant asphyxiated the victim by stuffing panties down her throat and tying a shirt around her neck, inflicted stab wounds to her chest, dealt a crushing blow to her head, and sexually assaulted her). Thus, this Court affirms the death sentence imposed in this case.

CONCLUSION ¶ 111. Finding no reversible error, this Court affirms the judgment of the Harrison County Circuit Court.

¶ 112. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED.

Mitchell v. State, 886 So.2d 704 (Miss. 2004). (PCR)

Background: Defendant filed application for leave to seek postconviction relief from capital murder conviction and death sentence, as affirmed, 792 So.2d 192,cert. denied, 535 U.S. 933, 122 S.Ct. 1308, 152 L.Ed.2d 218.

Holdings: The Supreme Court, Randolph, J., held that: (1) defense counsel did not render ineffective assistance of counsel; (2) issue as to whether evidence was sufficient to support aggravating factor of avoiding arrest was procedurally barred from further review by operation of res judicata; (3) indictment was not defective for its failure to include aggravating factor; (4) issue as to whether police unlawfully came to the residence of defendant's grandfather without probable cause so as to deprive defendant of a fair trial and due process was procedurally barred from further review by operation of res judicata; (5) evidence did not support defendant's challenge against death sentence based on claim of mental retardation; (6) issue as to whether evidence warranted manslaughter instruction was procedurally barred from further review by operation of res judicata; and (7) imposition of death sentence was not subject to delay until defendant finished serving prior life sentence. Application denied.

Mitchell v. Epps, 641 F.3d 134 (5th Cir. 2011). (Habeas)

Background: Following affirmance of his capital murder conviction and sentence of death, 792 So.2d 192, and denial of postconviction relief, 886 So.2d 704, state prisoner filed petition for federal habeas corpus relief. The United States District Court for the Southern District of Mississippi, Louis Guirola, Jr., J., 2010 WL 1141126, denied relief and denied a certificate of appealability (COA). Petitioner requested COA from appellate court.

Holdings: The Court of Appeals, E. Grady Jolly, Circuit Judge, held that: (1) reasonable jurists would not have found debatable the district court's conclusion that petitioner failed to exhaust his ineffective assistance claim with respect to evidence other than evidence of mental retardation; (2) even assuming that petitioner's ineffective assistance claim regarding evidence of mental illness was not barred, the district court's alternative conclusion that he was not prejudiced by counsel's alleged failure to investigate and present evidence of mental illness was not reasonably debatable; and (3) reasonable jurists would not have found debatable the district court's conclusion that the state supreme court's decision that petitioner failed to establish that he was mentally retarded and had not made the showing necessary under state law for an evidentiary hearing was not contrary to, or an unreasonable application of, clearly established federal law. Request for COA denied.

E. GRADY JOLLY, Circuit Judge:

In July 1998, William Gerald Mitchell was convicted and sentenced to death for the November 1995 capital murder of Patty Milliken. The Mississippi Supreme Court denied post-conviction relief, and the federal district court denied habeas relief and denied a certificate of appealability (“COA”). Mitchell has requested a COA from this court authorizing him to appeal the denial of relief on his claims that he received ineffective assistance of counsel and that he is mentally retarded and ineligible for execution. Because the district court's decision denying relief on these claims is not debatable among reasonable jurists and Mitchell's claims are not adequate to deserve encouragement to proceed further, we DENY his request for a COA.

I.

On the evening of November 21, 1995, near the end of her shift, Patty Milliken told her co-worker at a Biloxi convenience store that she was going to go outside with Mitchell to smoke a cigarette and talk. She left her purse and car keys in the convenience store. When she did not return, her co-worker reported to the police that she was missing. Milliken had written Mitchell's telephone number on a piece of paper that the police found in her purse. The police cross-referenced the telephone number to an address. When they arrived at that address, Mitchell, who was in the yard, ran from them. The police later spotted Mitchell at a gas station, and pursued him when he fled from the gas station *140 in his car. He was arrested for traffic violations.

Milliken's body was found the following morning under a bridge. She had been beaten, strangled, sexually assaulted, and crushed after having been run over by a car. After the police searched Mitchell's car, he was charged with Milliken's murder. At the time of Milliken's murder, Mitchell was under a sentence of life imprisonment for a previous murder, and had been on parole for approximately eleven months.

The jury found Mitchell guilty of capital murder. At the punishment phase, Mitchell called four witnesses. His wife, Mary Louise Mitchell, testified that she met Mitchell at the penitentiary. The last time he lived with her was in 1990 or 1991. She told the jury that they had adopted her son's child. She stated that Mitchell had a wonderful relationship with her adult daughters, and that he worked and took care of her children, allowing her to use some of his earnings to support them. She stated that he worked as a roofer, then as a direct care worker at the Mississippi State Hospital, and then went to truck driving school and became a truck driver. She said that Mitchell had never been violent to or around her.

Mitchell's stepfather, Albert Reed, Jr., testified that he married Mitchell's mother when Mitchell was four years old. According to Reed, Mitchell was a normal youngster and everybody loved him. Mitchell never had any problems with the law and worked for his grandfather's lawn business. He testified that Mitchell served in the Army, and something happened to change Mitchell when he got back from Korea.

Mitchell's sister, Marie Cornelia Mitchell Dunn, testified that during their childhood, they did what normal children do, playing and going to school. She said that Mitchell worked “all the time” when he was young. She also testified about Mitchell's military service. She admitted that she was aware that he had been convicted of murder in 1975. She stated that her brother reads the Bible, and that is what has saved him: “A person who has committed two murders reads the Bible and that's what he does everyday.” FN1. Mitchell argues that Dunn “blurted out” her testimony regarding the earlier murder because his trial counsel failed to prepare her for her testimony. However, the fact that he was serving a life sentence and was out on parole at the time of Milliken's murder was already in evidence before Dunn testified.

Rosemary Reed, Mitchell's mother, testified that Mitchell had normal boyhood activities, and was “just a typical boy.” He was a Boy Scout and did normal things that Scouts do, such as camping. She testified about his military service. According to her, Korea was a bad place for him to be. She testified about his conviction for murder in 1975 and his sentence of life imprisonment.

The jury did not find Mitchell's mitigating evidence to be persuasive, and he was sentenced to death. The Mississippi Supreme Court affirmed his conviction and sentence on March 29, 2001, and denied rehearing on August 23, 2001. Mitchell v. State, 792 So.2d 192 (Miss.2001). The Supreme Court denied certiorari. Mitchell v. Mississippi, 535 U.S. 933, 122 S.Ct. 1308, 152 L.Ed.2d 218 (2002).

The Mississippi Supreme Court denied post-conviction relief on August 19, 2004, and denied rehearing on December 2, 2004. Mitchell v. State, 886 So.2d 704 (Miss.2004). The Supreme Court denied certiorari. Mitchell v. Mississippi, 544 U.S. 1022, 125 S.Ct. 1982, 161 L.Ed.2d 864 (2005).

Mitchell filed his federal habeas petition on June 15, 2005. On March 19, 2010, in a thorough and well-reasoned opinion, the district court denied relief and denied Mitchell's request for a COA. Mitchell v. Epps, No. 1:04–cv–865, 2010 WL 1141126 (S.D.Miss. Mar.19, 2010).

II.

Mitchell requests a COA from this court authorizing him to appeal the denial of habeas relief on two issues: (1) whether he was denied the effective assistance of counsel during the guiltFN2 and sentencing phases of trial; and (2) whether he is mentally retarded and entitled to an evidentiary hearing on that issue. We address the ineffective assistance claim first, and then turn to the mental retardation claim. FN2. Although Mitchell mentions the guilt phase in his COA request, his brief is focused solely on the punishment phase of the trial. Accordingly, he has abandoned his request for a COA as to ineffective assistance of counsel at the guilt phase of the trial. See Hernandez v. Thaler, 630 F.3d 420, 426 n. 24 (5th Cir.2011) (stating that petitioner abandoned issue not briefed in COA request).

A.

Because Mitchell's ineffective assistance of counsel claim was adjudicated on the merits by the Mississippi Supreme Court, the district court's consideration of Mitchell's claim was governed by 28 U.S.C. § 2254(d). That section provides: An 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that 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).

For the district court, “[t]he pivotal question [was] whether the state court's application of the Strickland [ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. at 788. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Id. at 786 (internal quotation marks and citation omitted).

The district court held that Mitchell's ineffective assistance claim was not exhausted in state court and consequently is procedurally barred from review, except for his claim that counsel failed to discover and present evidence of mental retardation at sentencing. It held that the Mississippi Supreme Court's denial of relief on Mitchell's Strickland claim was not unreasonable because Mitchell failed to show that he met the standard for mental retardation defined by state law and, therefore, his counsel could not be faulted for failing to present evidence of mental retardation. Assuming Mitchell's claim that his trial *142 counsel should have offered evidence of other mental disorders were not barred, the district court held that Mitchell was not prejudiced, because the evidence Mitchell claimed should have been presented was not of such persuasive character that it would have influenced the jury's appraisal of his moral culpability.

Mitchell has requested a COA from this court authorizing him to appeal the district court's denial of relief. To obtain a COA, Mitchell must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Where a district court has rejected the constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,” id., “or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citation omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. 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.” Id. at 327, 336, 123 S.Ct. 1029. The court cannot deny a COA because it believes the petitioner ultimately will not prevail on the merits of his claims. Id. at 337, 123 S.Ct. 1029. On the other hand, however, “issuance of a COA must not be pro forma or a matter of course.” Id. “While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner's favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (brackets, internal quotation marks, and citations omitted).

In his COA request, Mitchell argues that his trial counsel rendered ineffective assistance by failing to investigate, discover, and introduce readily available mitigating evidence concerning his background and mental condition.

As the Mississippi Supreme Court recognized, Mitchell's ineffective assistance of counsel claim is governed by the clearly established law set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Mitchell v. State, 886 So.2d at 708. To have been entitled to relief from the Mississippi Supreme Court, Mitchell had to show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary*143 process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

“[T]he proper standard for attorney performance is that of reasonably effective assistance.” Id. “[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 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. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Id. at 689, 104 S.Ct. 2052 (internal quotation marks and citations omitted).

With respect to the duty to investigate, which was at issue in Strickland and is the focus of Mitchell's claim, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Id. at 690–91, 104 S.Ct. 2052. See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). The Supreme Court recently stated that these three post- Strickland cases, each of which granted relief on ineffective assistance claims, did not establish “strict rules” for counsel's conduct “[b]eyond the general requirement of reasonableness.” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1406–07, 179 L.Ed.2d 557 (2011). “An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense.” Richter, 131 S.Ct. at 789–90. Mitchell's counsel were “entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.” Id. at 789.

To demonstrate prejudice, Mitchell must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 131 S.Ct. at 792 (citation omitted). “When a defendant challenges a death sentence, ... the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id.

The Mississippi Supreme Court interpreted Mitchell's claim as one of ineffective assistance for failing to develop and present evidence of mental retardation at sentencing. Mitchell, 886 So.2d at 708. The Court stated that there is no evidence in the record to suggest that Mitchell is mentally retarded. Id. The Court observed that the record showed that Mitchell had served four years in the military and had attended college, and that Dr. Matherne, who interviewed Mitchell for two hours after his arrest for murder in 1974, found that “it was obvious that [Mitchell] had at least average intellectual functioning and a significant deficit in cognitive functioning was not noted during the interview.” Id. at 708–09. The Court concluded that, consequently, trial counsel could not “be faulted for failing to present mitigating evidence which did not exist.” Id. at 709.

In federal court, Mitchell attempted to expand his claim to include counsel's failure to investigate and present evidence of mental illness. He alleged in his federal habeas petition that “[t]rial counsel breached his duty to investigate and present mitigating evidence and failed to investigate and present evidence of mental retardation and mental illness to the sentencing jury.” In his brief in support of his federal habeas petition, Mitchell alleged that counsel unreasonably decided to forego any meaningful investigation and presentation of mitigating evidence in the following respects: (1) Although Mitchell's first lawyer, Keith Roberts (“Roberts”), employed an investigator early in the pretrial period, he conducted no investigation of mitigating evidence; (2) Mitchell's trial counsel, Keith Pisarich (“Pisarich”) and Thomas Musselman (“Musselman”), failed to investigate and present any mitigating evidence to the jury during the sentencing phase except calling as witnesses four relatives in essentially naked pleas for mercy; (3) trial counsel failed to use (or seek funds for) a mitigation expert to prepare a social history or otherwise evaluate Mitchell; (4) trial counsel failed to conduct even a cursory investigation into Mitchell's personal background, including his records of military service, employment, prior penitentiary sentence, academic performance, and social history.

Mitchell alleged that, as a result of counsel's errors, the jury was not presented with evidence of his mental illness and mental retardation. The district court concluded that, as presented to the state court, Mitchell's ineffective assistance of counsel claim based on trial counsel's failure to develop and present mitigating evidence at the penalty phase of the trial concerning Mitchell's mental condition was limited to evidence of *145 mental retardation and did not encompass a claim that counsel rendered ineffective assistance by failing to present mitigating evidence of his diminished mental capacity and mental illness. Accordingly, the district court held that Mitchell's ineffective assistance claim was exhausted in state court only insofar as he claimed that counsel failed to discover and present evidence of mental retardation at sentencing. It held that the Mississippi Supreme Court reasonably concluded that Mitchell failed to show that he met the standard for mental retardation defined by state law and, consequently, his counsel could not be faulted for failing to present evidence of mental retardation. Assuming Mitchell's claim that his trial counsel should have offered evidence of other mental disorders were not barred, the district court held that Mitchell was not prejudiced because the evidence Mitchell claimed should have been presented was not of such persuasive character that it would have influenced the jury's appraisal of his moral culpability.

1.

Mitchell argues that the issues he raised in state court encompassed mental health mitigating evidence, as well as mental retardation mitigating evidence. Mitchell asserts that his claim that trial counsel rendered ineffective assistance by failing to gather records, locate witnesses, ensure that Mitchell received an adequate mental health evaluation, and investigate all mitigating evidence concerning his mental condition, family life and personal circumstances, was fairly presented to the state court and thus exhausted. A thorough review of Mitchell's state court filings convinces us that reasonable jurists would not find debatable the district court's conclusion that Mitchell failed to exhaust his ineffective assistance claim with respect to evidence other than evidence of mental retardation.

In his state post-conviction application, under the heading “Grounds for Ineffective Assistance of Counsel Claim,” Mitchell described the issue as “Failure to Investigate and Present Evidence of Mental Retardation to Sentencing Jury.” On page three, under the heading “Preservation of Issues,” the application states that “trial counsel failed to properly investigate and present mitigating evidence at trial concerning Mitchell's mental health problems. Mitchell would submit that he is mentally retarded as contemplated in the United States Supreme Court case of Atkins v. Virginia.” On page 15, Mitchell alleged that “[c]ounsel's performance fell below the effective standard since they failed to investigate the defendant's mental health background, which may have shown that he was ‘borderline mentally retarded’ or other significant mental health illnesses.” The petition alleges that “[e]ven a cursory examination of Mitchell's childhood school records, military records, the findings of prior mental evaluations, employment records together with other psychiatric and psychological records would have readily revealed potent mitigation matters for the trial jury's consideration.” Specifically, “[t]he records would have revealed to trial counsel that Mitchell had been previously diagnosed on more than one occasion as being mildly mentally retarded.” The petition goes on to describe how the referenced documents demonstrate that Mitchell's intelligence is in the range covered by Atkins, and that he has adaptive deficits. On page 18, he alleged that “[t]rial counsel had a duty to investigate his mental illnesses and mental retardation. Trial counsel was neglectful and they failed to do so and as a result, the trial jury never had an opportunity to consider evidence of mental retardation as mitigation.”

Mitchell also alleged in his state post-conviction petition that “[t]here was an abundance of relevant, significant and material mitigating evidence to have been obtained from Mitchell's family members and official records but defense counsel failed to take the time to investigate or interview or offer any of them.” He claimed that “[p]roper investigation and presentation of the testimony of the relevant family members and the testimony of just one mental health expert could easily have persuaded the trial jury to return a life sentence.” In his reply brief filed in the post-conviction proceedings before the Mississippi Supreme Court, Mitchell argued again that “trial counsel failed to properly investigate and present mitigating evidence ... concerning Mitchell's mental health problems.” He argued that his propensity to become involved in physical altercations, his undependability as a worker, and his discharge from the Army due to unsuitability were indicia of mental retardation and adaptive skills deficits.

As noted, the Mississippi Supreme Court interpreted Mitchell's claim as one of ineffective assistance for failing to develop and present evidence of mental retardation at sentencing. Mitchell, 886 So.2d at 708. In his motion for rehearing of the denial of post-conviction relief filed in the Mississippi Supreme Court, Mitchell did not claim that the Mississippi Supreme Court had misunderstood or misinterpreted his claim by limiting it to the failure to present evidence of mental retardation. He asserted that “counsel was ineffective in failing to investigate and present mitigating evidence concerning his mental health history in support of his mental retardation claim.” On page 27, he stated that “[c]ounsel's performance fell below the effective standard since they failed to investigate the defendant's mental health background, which may have shown that he was ‘borderline mentally retarded’ or other significant mental health illness.” On page 30, he alleged, in a conclusory fashion, that counsel's “failure to investigate and interview family members, as well as other witnesses, expert and lay, does not equate to sound trial strategy.” On page 31, he stated that “trial counsel had a duty to investigate his mental illnesses and mental retardation. Trial counsel was neglectful and ... they failed to do so and as a result, the trial jury never had an opportunity to consider evidence of mental retardation in mitigation.” He also alleged, again conclusorily, that there was “an abundance of relevant, significant and material mitigating evidence to have been obtained from his family members and official records, but defense counsel failed to take the time to investigate or interview or offer any of them.” He did not offer any description of the evidence that supposedly could have been obtained from the family members.

Based on the foregoing, the district court's conclusion that Mitchell's claim in state court centered on the failure to investigate and present mitigating evidence of mental retardation, and was not a claim of a general failure to investigate and present any mitigating evidence, is not reasonably debatable. Although Mitchell mentioned mental illness and made reference to the documents attached as exhibits to his state post-conviction petition, he made no argument with respect to the contents of those documents other than as proof of mental retardation. Further, although he complained about counsel's failure to interview family members, he did not provide any details about what they could have testified to if interviewed and called as witnesses.

Even assuming, however, that Mitchell's ineffective assistance claim regarding evidence*147 of mental illness is not barred, the district court's alternative conclusion that Mitchell was not prejudiced by counsel's failure to present evidence of mental illness is not reasonably debatable. We now turn to discuss the evidence of mental retardation and mental illness that Mitchell claims should have been presented at trial.

2.

Mitchell was initially represented by Roberts and Musselman. After Roberts withdrew, Pisarich replaced him. Pisarich and Musselman represented Mitchell at trial. On March 18, 1998, prior to trial, Mitchell's counsel filed a motion to have him examined by a psychiatrist. Attached to that motion were copies of Mitchell's prior mental evaluations by various mental health professionals. The trial court granted the motion and the evaluation was conducted by Dr. Maggio on March 20, 1998. Dr. Maggio concluded that Mitchell was not schizophrenic, psychotic, or mentally retarded. Mitchell contends that this psychiatric evaluation was inadequate because it was done solely to determine whether he knew right from wrong and was competent to assist in his defense. Further, the evaluation relied heavily on Mitchell's self-reporting during a two-hour interview. Dr. Maggio noted that Mitchell reported that he had previously been in drug rehabilitation, had abused drugs while in the military, and was under the influence of drugs on the night of Milliken's murder. Mitchell asserts that Dr. Maggio's reliance on Mitchell's self-account of his life history, without probing into specifics in his personal background and without access to previous psychological evaluations, including those from Mitchell's previous penitentiary stay, was inadequate to discover mitigating evidence.

Mitchell asserts that the only mitigating evidence offered at the punishment phase of his trial was testimony from some family members who asked for mercy. He complains that his counsel did not present to the jury any substantive evidence or insight into his psychological problems, his history of failures at school, with his relationships, and during his military service and employment history. According to Mitchell, the key to his ineffective assistance claim is that trial counsel never investigated any aspect of his mental condition, either for retardation or mental illness and, therefore, no such evidence was available to present in mitigation at the penalty phase of his trial.

Mitchell contends that a proper mitigation investigation would have revealed numerous records, including grade school records, college records, employment records, records from the Mississippi State Hospital, and other psychological records, including those from the Mississippi Department of Corrections and a drug and alcohol rehabilitation facility. A description of the documents Mitchell claims his counsel should have discovered and presented to the jury follows: Dr. Bass: Mitchell was seen by Dr. Bass on April 10, 1974, for a psychiatric evaluation after he had been charged with the murder of a family friend and the assault with the intent to murder the victim's daughter. Dr. Bass stated that Mitchell “is coherent, he is aware of the consequences of his actions, he is intellectually able to stand trial; however, I consider him to be a borderline schizophrenic, potential for decompensation into a psychotic state, under stress.” Dr. Bass stated that the paranoid feelings that Mitchell described on returning to school and the circumstances of Mitchell's situation led him to believe that Mitchell was probably psychotic at the time of the murder and *148 was not able to distinguish between right and wrong.

Dr. Matherne: In a June 26, 1974, report of psychological evaluation, Dr. Matherne stated that Mitchell's intellectual functioning appears to be in at least the average range of intelligence. Dr. Matherne stated that a formal intellectual evaluation was not conducted because it was obvious that Mitchell had at least average intellectual functioning and a significant deficit in cognitive functioning was not noted during the interview. The fact that Mitchell had attended college also supported Dr. Matherne's impression that Mitchell has at least average intellectual ability. Mitchell had been referred to Dr. Matherne to determine whether Mitchell was then or had at any time in the past functioned on a psychotic level. Dr. Matherne's report noted that Mitchell had been charged with murder and assault with intent to murder for stabbing to death a woman in his neighborhood and assaulting the woman's daughter. Dr. Matherne stated that Mitchell may have functioned on a psychotic level in the past and that he appears to have a borderline schizophrenic process which, when precipitated under stress, results in his inability to engage in appropriate reality testing and that he may experience a loss of memory for his actions.

Mississippi State Hospital Records: Mitchell was admitted to the Mississippi State Hospital on February 11, 1975, on order of the Harrison County Circuit Court. He was facing charges of murder and assault and battery. Mitchell's diagnosis following the 1975 psychological evaluation at the Mississippi State Hospital was “mild mental retardation” and schizophrenia, latent type. In a report dated March 20, 1975, Dr. Stanley, a staff psychologist, stated that Mitchell may be borderline psychotic. Dr. Stanley noted that on the Wechsler, Mitchell obtained a full scale IQ score of 79, which he characterized as representing “borderline mental retardation.” Dr. Stanley's report states that Mitchell's drawings “suggest a considerable amount of hostility, especially where women are concerned.”

These records also contain additional information of questionable mitigating value, some of which could have been damaging to Mitchell at the penalty phase of his trial. They contain details about his arrests for assault and battery on July 23, 1973, and November 11, 1973. In both of the prior assaults, the female victims were beaten; one apparently suffered a broken jaw and wrist. Mitchell is described in these records as “arrogant” and “quite hostile, belligerent and very evasive.” The records contain information about Mitchell and another inmate collaborating on a possible damage suit and being confined because of a disturbance that could have been quite violent. In addition, the records contain damaging information about the 1974 stabbing murder of a female family friend and the stabbing of her daughter. The notes reflect that, at some point during the stabbing, the knife that Mitchell was using broke, and he got another one. The notes indicate that the stabbing victim was “cut, cut, cut to pieces.” The records also contain a report that Mitchell's own grandmother said that she had become afraid of him during the last few years.

Mississippi State Penitentiary Records: Staff psychiatrist Dr. Croce interviewed Mitchell in 1977 and stated that he seemed to function in the dull-normal level of intelligence, but that his fund of general knowledge was not in keeping with his college education. He noted that tests showed that Mitchell was reading at grade level 7.9, spelling at grade level 8.7, and arithmetic was 4.9. Dr. Croce stated that Mitchell should be watched carefully for *149 sudden changes in his behavior, as he can become extremely aggressive and destructive, especially toward others if he feels threatened in his insecurity. Dr. Croce's report also mentions that Mitchell has had problems fighting with other inmates and had been disciplined several times for assaultive behavior. He described Mitchell as “unusual and bizarre.”

Dr. McGlynn, a psychologist, reported that Mitchell's full-scale IQ on the short form Wechsler Adult Intelligence Scale is 83 (Verbal, 76, Performance, 94). He stated further that the results of testing suggested the presence of major psychiatric involvement and that Mitchell may be “clinically psychotic with a picture of schizophrenia, paranoid type.”

Military Records: Mitchell served in the Army from 1969 until 1973 as a supply clerk and a welder. While in the Army, he earned the National Defense Service Medal, the Expert Rifle Medal, and the Armed Forces Expeditionary Medal. Mitchell received “excellent” ratings for conduct and efficiency from February 1969 until May 1969. Thereafter, he received “satisfactory,” “excellent,” or “good” ratings in conduct and efficiency through February 1971, with one “fair” rating for conduct. After February 1971, his performance deteriorated. Mitchell was discharged from the Army for “unsuitability” on December 12, 1972. Sergeant First Class Dunham found that Mitchell “overall was not a competent soldier,” and described his disrespectful behavior to others. Staff Sergeant Rodgers noted that Mitchell's behavior further declined when his wife left him, and mentioned Mitchell's “personal problems,” for which Sergeant Rodgers gave him time off. Sergeant Rodgers observed that Mitchell was a “daily problem for me” and that his “adaptability, attitude, initiative and responsibility are way below average.” Major Orendas provided a statement indicating that Mitchell had separated from his wife for infidelity. Major Orendas cited disciplinary problems, including involvement in physical altercations with other soldiers (kicking one soldier and hitting a different one in the face with his fists) and disrespect for officers. Major Orendas characterized Mitchell as “an arrogant individual in complete dissidence to the discipline required of members of a uniformed service and ... completely incorrigible.” Major Orendas noted that Mitchell had not reformed his behavior after opportunities for rehabilitation and that the unsatisfactory behavior had occurred in previous assignments in Europe and Korea. Mitchell complains that, instead of exploiting the evidence of subnormal intelligence and performance documented in his military records, counsel favorably cited to Mitchell's Army service, without access to the records themselves. However, if Mitchell's military service records had been presented to the jury, the jury would have learned that his discharge was for refusal to obey orders, attacking other soldiers, and dereliction of duty. The records also reflect that he was trained as a welder, which some jurors might have considered to cast doubt on a claim of mental retardation.

School Records: Mitchell's school records, obtained by his post-conviction counsel and attached to his state post-conviction petition, reflect that he attended school through the eleventh grade without failing a grade until the second semester of the tenth grade. He was not in any special education classes. His grades were in the 70s, with some 80s in the sixth grade. He participated in football, basketball, and choir. He earned his GED while in the Army. Mitchell was accepted at Mississippi Valley State University in January 1974, where he enrolled in biology, art, history, *150 and psychology classes. He attended classes for only about a month before he withdrew after he was arrested for aggravated assault and murder.

Employment Records: After his discharge from the Army, Mitchell worked at Manpower as a welder. He also worked at Ingalls shipyard as a shipfitter and then as a tacker apprentice for two or three months. He resigned because he was dissatisfied with working conditions. On his job application, he indicated that he had attended welding school at a local community college. When Mitchell was on parole in 1989, he worked for the Mississippi State Hospital as a Direct Care Trainee and then as a Direct Care Worker. He also worked as a truck driver for J.B. Hunt in 1990, which the State claims presumably would have required him to obtain a commercial driver's license.

In support of his state post-conviction application, Mitchell submitted the affidavits of Dr. Sarah DeLand, Dr. Gwendolyn Catchings–Costello, and Dr. W. Criss Lott. Dr. DeLand stated that, based on her review of the materials obtained by Mitchell's post-conviction counsel, there were “a number of areas that suggest the presence of mitigating factors and require further exploration.” She concluded that Mitchell “may suffer from a neurological dysfunction,” and that a “thorough forensic psychiatric evaluation is necessary.” Dr. Catchings–Costello, a family friend, stated that Mitchell was a poor student and had no realization of the consequences of his actions. Dr. Lott's affidavit stated that Dr. Maggio did not perform a full forensic evaluation to assess for mitigating circumstances, and that such an evaluation, including neuropsychological and intelligence testing, is necessary.

Mitchell also submitted to the state court the affidavits of his trial counsel, Pisarich and Musselman. In his affidavit, Pisarich stated that he did not use the services of an investigator, but he noted that Mitchell's former attorney, Keith Roberts, had used an investigator. Pisarich said that he did not have the services of a mitigation specialist or a social worker to look into Mitchell's background and that he did not obtain Mitchell's school records or military service records. He was, however, aware of Mitchell's psychiatric problems and said that, in hindsight, he should have looked into it more closely. He stated that he interviewed witnesses called to testify in mitigation at trial, but that no investigation was made as to people who may have known Mitchell during his incarceration at Parchman on his former conviction.FN3 He stated that he had no information as to Mitchell's family background except for what he learned in discussions he had with Mitchell, his mother, and the other mitigation witnesses. FN3. Apparently there are no people who knew Mitchell during his incarceration at Parchman on his prior murder conviction who could have provided mitigating evidence; at least, his post-conviction counsel did not identify any such individuals or describe what they might have said had they been called to testify.

Pisarich's co-counsel, Musselman, submitted an affidavit in which he stated that they performed no investigation into any mitigating circumstances; they did not seek any mental health records, school records, or military records; and no time was set aside to prepare Mitchell's family members for the testimony in the penalty phase. Musselman indicated that, as a result of this lack of preparation, Mitchell's sister, during her testimony at the punishment phase, blurted out that he had committed a prior murder. As we have already noted, however, the fact that Mitchell had been sentenced to life imprisonment*151 and was on parole at the time he murdered Milliken was already in evidence before the sister testified.

Although Mitchell alleges that his trial counsel failed to investigate and discover these records, it is clear that trial counsel had at least some of them, because they were attached to the motion for a psychiatric examination.FN4 Specifically, attached to that motion were Dr. Matherne's reports of June 26, 1974 and August 14, 1974; the June 26, 1974 report of Dr. Bass; and the April 30, 1975 report from the Mississippi State Hospital which mentions a diagnosis of “mild mental retardation.” Further, those records were summarized in Dr. Maggio's report issued following that examination. Dr. Maggio's report summarized most of Mitchell's prior mental health evaluations, his criminal history, and his drug use. Dr. Maggio concluded that Mitchell was not schizophrenic, psychotic, or mentally retarded. If Mitchell's counsel had presented the records that Mitchell contends they should have presented, the State would have been able to rebut with Dr. Maggio's testimony.

FN4. There is additional evidence that Mitchell's counsel were aware of the contents of Mitchell's records of prior mental health examinations. At a motion hearing in 1998 after Pisarich was appointed, the trial court and Pisarich were talking about Mitchell's prior convictions and the court mentioned Mitchell's examination by the Gulf Coast Mental Health Center. Pisarich replied, “Yes, Your Honor. We have gone over all that, and I have a complete copy of those files.” The Court then asked Pisarich about Mitchell going to the Mississippi State Hospital, and Pisarich indicated his familiarity with Mitchell's examinations by Dr. Bass and Dr. Matherne prior to going to the Mississippi State Hospital.

Although courts may not indulge post hoc rationalization for counsel's decisionmaking that contradicts the available evidence of counsel's actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect. After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind. Richter, 131 S.Ct. at 790 (internal quotation marks and citations omitted). See also Pinholster, 131 S.Ct. at 1407 (citing with approval Chief Judge Kozinski's dissenting opinion below in which he stated that the court of appeals was required “to affirmatively entertain the range of possible reasons” that counsel may have had for proceeding as they did).

The record shows that Mitchell's counsel's failure to pursue the investigation that, in hindsight, they seem to think they should have done, is consistent with their overall strategy of trying to keep from the jury the damaging details of Mitchell's prior assaults against women. Counsel were defending their client against the death penalty for the brutal murder of a woman, committed less than a year after he was released on parole for the brutal stabbing murder of another woman who was a family friend. His criminal record also included violent assaults against three other women. The record shows that counsel were aware of Mitchell's prior psychological evaluations, including the fact that those records contained details of the prior murder and assaults that could have been damaging to their effort to save Mitchell's *152 life. They were also aware that Dr. Maggio had examined Mitchell and found that he was not schizophrenic, psychotic, or mentally retarded. Under these circumstances, they reasonably could have decided that it was best to emphasize the positive aspects of Mitchell's military service and to prevent the jury from learning anything more than the bare fact that he previously had been convicted of murder and assault. Mitchell's evidence of mental retardation is so weak, and is contradicted by so much other evidence, that his counsel reasonably could have decided that the jury simply would not believe it. Counsel might also reasonably have concluded that the evidence of mental illness contained damaging information that a jury might have relied on to conclude that Mitchell was incapable of rehabilitation.

Even assuming that Mitchell's counsel performed deficiently, reasonable jurists would not find debatable the district court's conclusion that Mitchell was not prejudiced by his counsel's failure to present this information, and the other evidence that Mitchell claims they should have presented from his school, military, and employment records, to the jury. As the district court pointed out, some of those documents contained damaging information that would not have been helpful in attempting to persuade the jury to spare his life. Those records show that Mitchell was involved in physical altercations while at the Mississippi State Hospital and while in the Army. He was not a dependable worker because of repeated absences from his employment. He had a history of drug abuse. He is described in these documents as arrogant, hostile to women, evasive, incorrigible, negative, defiant, manipulative, aggressive, and destructive. He was discharged from the Army as unsuitable, because of misconduct such as refusing to obey orders, disrespecting officers, and beating and kicking other soldiers. The documents also contain details about the first murder Mitchell committed in 1974, in which he used two butcher knives to kill the victim, because the first knife broke. The murder victim was described as having been “cut, cut, cut to pieces.” During that same incident, Mitchell also stabbed the victim's daughter. Furthermore, the reports describe two earlier assaults Mitchell committed against women. Although Mitchell's school records do not contain any damaging information, the district court reasonably concluded that there is nothing in those records that establishes any sort of disorder that might have persuaded jurors to impose life imprisonment rather than the death penalty.

The district court reasonably rejected Mitchell's claim that trial counsel rendered ineffective assistance by failing to properly investigate the information known by the testifying family members and by failing to elicit such mitigating testimony from them by ineffectively questioning them. Mitchell has not presented any affidavits of any family members who state that he is mentally retarded or describe testimony they could have presented that was different from what they testified to at trial. In the state post-conviction proceedings, Mitchell stated that he had attempted to obtain affidavits from the witnesses called at trial in mitigation, but was only able to obtain an affidavit from Mary Mitchell, his ex-wife. Mitchell argues that her affidavit shows a complete lack of trial preparation for mitigation. However, one portion of her affidavit undercuts his claim of mental retardation: she stated that she still has and uses Mitchell's Bible. She stated that as she “read some of the passages he wrote in the margins of the Bible, I really believed that he was serious and that he could have become a minister.” Mitchell argued that if his daughter-in-law, Andrea *153 Mitchell, had been contacted, she would have testified about Mitchell's “many good traits.” However, Andrea Mitchell did not submit an affidavit, and the only support for her purported testimony is the hearsay affidavit of post-conviction counsel's investigator, Tomika Harris. FN5. Mitchell's alternative claim of ineffective post-conviction counsel was not presented to the state court or to the district court and is barred in any event by Stevens v. Epps, 618 F.3d 489, 502–04 (5th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1815, 179 L.Ed.2d 775 (2011).

In sum, reasonable jurists would not find debatable the district court's denial of relief on Mitchell's ineffective assistance of counsel claim, and Mitchell has not shown that this claim is adequate to deserve encouragement to proceed further. We therefore deny his request for a COA on his ineffective assistance of counsel claim. We now turn to consider whether Mitchell is entitled to a COA for his claim that he is mentally retarded and thus ineligible for execution.

B.

The Mississippi Supreme Court held that there is no evidence in the record to suggest that Mitchell is mentally retarded. 886 So.2d at 712. Furthermore, the Court held that Mitchell had not made the showing required by Chase v. State, 873 So.2d 1013, 1029 (Miss.2004), to be entitled to an evidentiary hearing: he did not produce an affidavit from any expert stating that he had an IQ of 75 or below and that in the expert's opinion further testing would show him to be mentally retarded. Mitchell, 886 So.2d at 712.

The district court held that the Mississippi Supreme Court's decision that Mitchell had not established that he is mentally retarded and had not made the showing necessary under state law for an evidentiary hearing is not contrary to, or an unreasonable application of, clearly established federal law. A thorough review of the entire record convinces us that reasonable jurists would not find the district court's decision to be debatable. Mitchell did not present an affidavit from an expert stating that he had an IQ of 75 or below and that further testing would show that he is mentally retarded. Mitchell relies on the diagnosis of mild mental retardation that he received from Mississippi State Hospital in 1975. Although a summary sheet from the Mississippi State Hospital indicates that Mitchell was diagnosed with “Mild Mental Retardation,” the case notes state that “all members of the staff agreed on a diagnosis of Borderline Mental Retardation.” Mitchell's IQ score of 79, however, does not support a diagnosis of mental retardation. Instead, according to the DSM–IV–TR, the term “borderline intellectual functioning” is used to describe an IQ range of 71–84, which is higher than that for Mental Retardation (an IQ of 70 or below). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 42, 740 (4th ed. 2000).

Mitchell claims that Biloxi Public School records show that he registered IQ scores of 71, 74, 76, and 65. The State contends that these were merely sub-test scores rather than full scale IQ scores. The district court found the records inconclusive because the scores were unexplained. Our review of those records supports the district court's conclusion. Moreover, the Biloxi Public School records show that at age nine Mitchell scored 77 on an IQ test. Further, in 1977, when Mitchell was twenty-seven years old and serving his sentence for his first murder conviction, he obtained an IQ score of 83.

The record also contains very little evidence of deficits in adaptive functioning. Mitchell's stepfather testified that he was a “normal” youngster, who went to school and was loved by everyone. His mother testified that he was a Boy Scout and had been “just a typical boy.” Family members testified that he was in the Job Corps and also worked for his grandfather's lawn service. Mitchell has not presented any affidavits from any family members who state that they would have testified that Mitchell is mentally retarded. The Biloxi Public School records show that Mitchell passed Personal Development with grades of 90 and 95, and also passed classes such as Spanish, Speech, Algebra, and Shop. In high school, Mitchell played football and basketball and sang in the choir. Mitchell's family reported that he completed his tests early in the fifth and seventh grades. In 1974, Dr. Bass reported that Mitchell had “no trouble learning” in high school. Mitchell obtained a GED while serving in the Army.

The Mississippi State Hospital case notes indicate that Mitchell interacted well with the other patients there and that he played basketball and participated in recreational activities. While at the Mississippi State Penitentiary, Mitchell boxed and played football and basketball. The record also contains evidence that Mitchell maintained adult relationships. He had girlfriends; he was married while in the Army and fathered a child before divorcing after three years of marriage; and he later married another woman and adopted a child. Mitchell submitted handwritten requests for medical attention at the Mississippi State Penitentiary. On one request, he stated that his eyes had “deteriorated.” On another, he correctly spelled “hemorrhoid.” Our review of the entire record reveals much more evidence that undermines Mitchell's claim that he is mentally retarded.

The state court record contains numerous handwritten letters and pleadings from Mitchell. In addition, his trial counsel essentially re-filed all of the pro se motions that Mitchell had previously filed, and incorporated and attached his pro se filings to the motions that they filed on his behalf. At a hearing in October 1996, the trial judge asked Mitchell why he had filed a pro se speedy trial motion. Mitchell responded, “I thought I had a right to file, Your Honor.” When the court asked who helped him file the motion, Mitchell replied, “I did it myself, Your Honor.” The trial judge asked Mitchell if he had read Barker v. Wingo, and Mitchell replied that it was a speedy trial case and that he had read some of it.

Mitchell testified at the suppression hearing, before Pisarich replaced Roberts as his lead counsel. At the conclusion of the hearing, he asked the judge if his taped statement was going to be admitted into evidence. He stated that if the tape was going to be submitted to the jury, the portion of the tape in which he says that he is a parole violator should be taken out. He cited in support the Mississippi Supreme Court case of Taylor v. State. After Pisarich was appointed, he took up this identical argument, citing the very same authority that Mitchell had cited.

At a speedy trial motion hearing in July 1998, the Court asked Mitchell about his speedy trial motion and the motion to dismiss Roberts as his counsel, and Mitchell replied, “It wasn't a written motion, I did it ore tenus.” When testifying at that hearing, Mitchell indicated his understanding that if he testified about matters covered by the attorney-client privilege between him and his former attorney, Roberts, the prosecutor could cross-examine him about it. In response to the court's question about whether he had ever asked in open court for a speedy trial, Mitchell replied: “No, sir. And the reason I didn't do that is because the little case law that I read concerning speedy trial, the Mississippi Supreme Court and the United States Supreme Court and the federal courts said that once the defendant makes a demand for a speedy trial you don't need to bring it up anymore. And then it's not—and the law also says that it's not the defendant who's to bring it to trial, it's the State to bring the defendant to trial.”

At the conclusion of the State's case in chief at the guilt phase of the trial, the court addressed Mitchell about his decision not to testify. During that colloquy, the court asked Mitchell if anyone had helped him file his pro se motions, and Mitchell said no, that he did it himself, using resources from the law library at the detention center. Pisarich stated that he had visited with Mitchell at the Harrison County Jail approximately 25 to 30 times since he had been appointed and that they discussed trial strategy, as well as many other things. He stated that Mitchell's decision not to testify was not made on the spur of the moment and had been well-discussed.

In a January 11, 2000 motion for leave to file an amended brief, Mitchell's counsel stated that Mitchell had called counsel about the contents of his brief on direct appeal. Apparently Mitchell was very dissatisfied with the contents of the brief and had specifically requested that his counsel add certain additional matters. The motion goes on to state that, after consideration, counsel believes that the additional matters should be added to the appellant's brief. In a handwritten letter to the district court, Mitchell asked for the name of the attorney who had been appointed to represent him in federal habeas proceedings. The letter includes the docket number of his case and states that he needs to know the name and address of his attorney because his federal habeas petition is due on April 18, 2005, and he has not heard from his attorney.

Based on the foregoing, we conclude that reasonable jurists would not find debatable the district court's conclusion that the Mississippi Supreme Court's decision that Mitchell had not established that he is mentally retarded and had not made the showing necessary under state law for an evidentiary hearing is not contrary to, or an unreasonable application of, clearly established federal law. We therefore deny Mitchell's request for a COA authorizing him to appeal the denial of relief on his mental retardation claim.

III.

For the reasons stated above, we DENY Mitchell's request for a COA.