PARCHMAN — A man who twice sought to take his own life and then took the lives of two others died here Wednesday with no last words and without discussing his crimes. Edwin Hart Turner, 38, was pronounced dead at 6:21 p.m. at the State Penitentiary at Parchman, executed by lethal injection for the 1995 slayings of store clerk Eddie Brooks and prison guard Everett Curry during two alcohol-and drug-fueled robberies.

Curry's brother, Roy Curry, said afterward the pain of losing his brother was just as strong now as it was 16 years ago. He said Turner and accomplice Paul Stewart had never made any effort at apology or explanation. "One of the perpetrators of this evil act recently sought a pardon from the outgoing governor, yet Everett was robbed of the possibility of ever requesting a pardon for his life," he said. "May God have mercy on their souls."

Four family members of the victims sat quietly as Turner breathed his last. Asked if he had any last words, Turner replied, "No." Turner, wearing the red jumpsuit for death row inmates, was strapped down as the lethal cocktail flowed into his system. He exchanged brief words with people in the execution chamber, nodded twice and closed his eyes. MDOC Commissioner Chris Epps said at one point Turner asked, "What are we waiting on?"

Media witnesses Keith Hill of the Mississippi News Network and Charlie Smith of the Greenwood Commonwealth noted the lethal drugs began to take hold fairly quickly. Turner soon was lying motionless, mouth open, and seemed to be in a deep sleep. Both witness rooms were quiet during the execution. No discernable reaction was given by the families of Turner's victims.

Turner had requested his family not be present for the execution. His attorney, Lori Bell, whom Epps said Turner left his possessions, and his spiritual adviser, Tim Murphy, were among the witnesses. Turner's remains were released to his mother, LaDonna Turner, and his arrangements will be handled by Williams and Lord Funeral Home in Greenwood.

Curry said he hopes his family now can begin the healing process. "I don't think we'll ever have complete closure because a void will always exist in our hearts," he said. "At least we'll have some consolation in knowing the person who committed this cowardly and senseless act is finally gone. We pray that God would give us the faith and courage and strength to move on with our lives."

Turner's attorneys had sought to stop the execution, arguing he was mentally ill. Turner tried to commit suicide when he was 18 by putting a rifle in his mouth and pulling the trigger. His face was left severely disfigured. His attorney, Jim Craig, also has said Turner had spent three months in the State Hospital at Whitfield after slitting his wrists in another suicide attempt in 1995 - prior to the killings.

U.S. District Judge Carlton Reeves on Monday had granted a temporary stay until Feb. 20. But the 5th Circuit Court vacated the stay Wednesday. Gov. Phil Bryant also declined to step in on Turner's behalf. And the U.S. Supreme Court also refused to halt the execution.

On Dec. 12, 1995, Turner and Paul Stewart had been drinking beer and smoking marijuana while joy riding in Stewart's car when they decided to rob some Carroll County convenience stores. They first drove to Mims Truck Stop, but left it after finding it was too crowded. Their next stop was Mims Turkey Village Truck Stop, about four miles down the road. The two entered the stores carrying rifles and wearing masks. Turner shot Brooks, in the chest. Turner and Stewart tried to open the cash register by force and by shooting it. Then Turner shot Brooks in the head from only inches away. The two then went back to Mims Truck Stop, and while Stewart went inside the store, Turner robbed Curry, who was pumping gas outside. He shot Curry in the head.

Stewart proceeded to rob the store, and Turner came in, pointing his gun at the people in the store. Stewart testified he told Turner since he had the money, there was no need to kill anyone else. The next day, police found the weapons used in the murders inside Turner's home, and the masks used during the robberies in the back of Turner's car. Stewart pleaded guilty on July 19, 1996, to two counts of capital murder and testified against Turner.

Before Wednesday's execution, Rodney Gray, 38, was the last inmate put to death. He was one of two inmates executed in May. State officials predicted last year that at least three more executions could happen this year. Turner's was one of them. William Gerald Mitchell and Larry Matthew Puckett are the other two inmates whose petitions have been turned down by the 5th U.S. Circuit Court of Appeals in New Orleans. There are 56 inmates still on death row in Mississippi, including two females. The youngest is 26 and the oldest is 65.

Inmates William Gerald Mitchell and Larry Matthew Puckett likely are next to run out of appeals. Mitchell, 61, was sentenced to death in 1998 in Harrison County for killing 38-year-old store clerk Patty Milliken on Nov. 21, 1995. Prosecutors said Mitchell took Milliken from the store to a bridge, where he beat her and drove his car over her body. Puckett, 35, was sentenced to death in 1996 in Forrest County. He was convicted of capital murder and sexual assault in the 1995 death of Rhonda Griffis of the Sunrise community. Authorities said Griffis died from blows to the head.

Mississippi Department of Corrections

Sentences:HOMICIDE (2 COUNTS) - 02/14/1997 FORREST COUNTY DEATH

Mississippi Department of Corrections

Factual Background of the Case

On December 12, 1995, Edwin Hart Turner (MDOC #67290) and another individual, Paul Stewart (MDOC #65682), were drinking beer and smoking marijuana while driving around in Stewart’s car. Eventually, Turner and Stewart decided to rob convenience stores in Carroll County, Mississippi. They first drove to Mims Truck Stop, but left after finding it too crowded. They then drove to Mims Turkey Village Truck Stop, about four miles away. At around 2:00 a.m. on December 13th, the two entered the store wearing masks and carrying rifles. Turner shot the store clerk, Eddie Brooks, in the chest. Turner and Stewart then tried to open the cash register, and at one point, both men shot at the register. After their unsuccessful attempts to open the register, Turner placed the barrel of his rifle inches from Eddie Brooks’ head and shot him.

Turner and Stewart then drove back to Mims Truck Stop. While Stewart went inside the store, Turner approached Everett Curry, who was pumping gas outside. Turner ordered Curry to the ground, robbed him, and shot him in the head. Meanwhile, inside the store, Stewart grabbed some of the store’s cash. Turner then came into the store and pointed his gun at the people inside. Stewart testified at trial that he told Turner there was no need to kill anyone else because Stewart already had the money from the cash register. The pair left the store and returned to Turner’s home. The next morning, police officers arrived at Turner’s home and found the two guns used in the crimes inside. They also found the hockey mask Stewart used during the robberies in the backseat of Turner’s car.

After the two were arrested, Stewart gave a full confession and pleaded guilty to two counts of capital murder. As part of his plea, Stewart agreed to testify against Turner. The jury ultimately found Turner guilty of two counts of capital murder while engaged in an armed robbery and imposed the death penalty. The convictions and death sentence were affirmed on direct appeal.

State Inmate Paul M. Stewart, MDOC #65682
White Male
DOB—06/14/1978
Entered MDOC on December 13, 1995

On July 19, 1996, Paul M. Stewart was convicted of two counts of capital murder in the Circuit Court of Carroll County and sentenced to two consecutive life sentences for the murders of Eddie Brooks and Everett Curry.

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.

Contents of Syringes for Lethal Injection
Anesthetic - Pentobarbital – 2.0 Gm.
Normal Saline – 10-15 cc.
Pavulon – 50 mgm per 50 cc.
Potassium chloride – 50 milequiv. per 50 cc.

Lethal Injection History

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.

Mississippi Death Row Demographics

Youngest on Death Row: Terry Pitchford, MDOC #117778, age 25
Oldest on Death Row: Richard Jordan, MDOC #30990, age 64
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 March 2, 1977: Thirty-Four Years

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 921 employees at MSP. 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.

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

Source: Mississippi Department of Corrections, Mississippi State Penitentiary

Atlanta Journal Constitution

"Mississippi man executed for 1995 robbery spree killings." (Associated Press 9:51 p.m. February 8, 2012)

PARCHMAN, Miss. — A Mississippi man was put to death Wednesday evening for killing two men in a December 1995 robbery spree after the courts declined to stop the execution based on arguments that the inmate was mentally ill at the time. Edwin Hart Turner, 38, died at 7:21 p.m. EST after receiving a chemical injection at the Mississippi State Penitentiary at Parchman, authorities said.

Turner was convicted of capital murder in the deaths of Eddie Brooks and Everett Curry, who were slain at two gas stations a few miles apart that were targeted by Turner and another armed friend in a spree that netted them about $400. Brooks was shot to death first while working at one of the gas stations and Curry at the other while pumping gas when the pair went there next, toting rifles. Turner's accomplice testified against him and was sentenced to life in prison.

Wearing a red prison jumpsuit as he lay strapped on a gurney, Turner said, "No" when asked if he had a last statement. When the lethal chemicals began flowing, he closed his eyes, took a deep breath and appeared to fall asleep. The sister and a cousin of victim Eddie Brooks watched the execution. The brother and son of his other victim, Everett Curry, also did.

One of Curry's other brothers read a family statement afterward. "I don't think we will ever have complete closure because a void will always exist in our hearts," said Roy Curry, who did not watch the execution. "At least we will have some consolation in knowing that the person who committed this cowardly and senseless act is finally gone." Turner had requested that none of his family watch the execution, though his attorney and a pastor were present.

There was little dispute that Turner killed the two men while robbing gas stations, then went home and had a meal of shrimp and cinnamon rolls before going to sleep. But his lawyers had tried to block the execution in various state and federal courts based on the argument that Turner was mentally ill at the time of the crimes. The lawyers had hoped the U.S. Supreme Court would outlaw executions of the mentally ill as it has done with people considered mentally retarded.

The nation's highest court allowed the execution to go forward Wednesday when it rejected petitions to stop it. Earlier in the day, Mississippi Gov. Phil Bryant had refused to grant a reprieve, saying after a review of the case, "I have decided not to grant clemency for his violent acts." Turner's lawyers had argued in the petition to the U.S. Supreme Court that he inherited a serious mental illness. They argued that his father is thought to have committed suicide by shooting a gun into a shed filled with dynamite and his grandmother and great-grandmother both spent time in the state mental hospital.

Turner's attorneys say he was severely disfigured during a suicide attempt at 18 by putting a rifle in his mouth and pulling the trigger. He had been released from a mental hospital just weeks before killing the two men, his lawyers said. Attorney General Jim Hood has said recently that Turner's mental health claims had been "fully addressed."

Richard Bourke, director of the Louisiana Capital Assistance Center that represented Turner, said after the execution in an emailed statement that he lamented the "tragic and senseless" killings. He also said Mississippi's mental health care system failed Turner, describing him as "a seriously mentally ill and tortured man" with no criminal history before those slayings.

Bourke's statement added Mississippi was among a handful of states that provide the least protection for the seriously mentally ill in their criminal justice systems. "This needs to change. At the very least, seriously mentally ill offenders whose illness contributed directly to their crimes should not be subjected to the death penalty," the statement added.

Biloxi SunHerald.Com

"Man executed for 1995 killings." (AP Wed, Feb. 08, 2012)

PARCHMAN -- Mississippi inmate Edwin Hart Turner was put to death Wednesday evening for killing two men in a 1995 robbery spree after the courts declined to stop the execution based on arguments that he was mentally ill. Turner, 38, was administered a lethal injection and died at 6:21 p.m. at the Mississippi State Penitentiary at Parchman, authorities said. The inmate was convicted of killing the two men while robbing gas stations with his friend Paul Murrell Stewart in a spree that netted about $400. Stewart, 17 at the time, testified against Turner and was sentenced to life in prison.

Turner, wearing white shoes and one of the red prison jumpsuits issued to death row inmates, was strapped on a gurney. When a microphone was lowered to his mouth, he said, “no” when asked if he had a final statement. Then the chemicals began flowing through tubes into his body. He closed his eyes, took a deep breath and had the appearance of falling asleep.

Turner was convicted of capital murder in the deaths of Eddie Brooks and Everett Curry. Brooks was shot to death while working at Mims Turkey Village Truck Stop in Carroll County. Curry was shot to death while pumping gas at the nearby Mims One Stop.

The sister and a cousin of victim Eddie Brooks watched the execution. The brother and son of his other victim, Everett Curry, also witnessed it. One of Curry’s other brothers read a statement for the family afterward. “I don’t think we will ever have complete closure because a void will always exist in our hearts,” said Roy Curry, who did not watch the execution. “At least we will have some consolation in knowing that the person who committed this cowardly and senseless act is finally gone.” Turner had requested that none of his family watch the execution, though his attorney and a pastor were present.

There was little dispute that Turner killed two men while robbing gas stations, then went home and had a meal of shrimp and cinnamon rolls then went to sleep before deputies arrived. But his lawyers had tried to block the execution in various state and federal courts based on the argument that he was mentally ill. They had hoped the U.S. Supreme Court would outlaw executions of the mentally ill as it has done with people considered mentally retarded. The nation’s highest court allowed the execution to go forward Wednesday when it rejected petitions to stop it. Earlier in the day, Gov. Phil Bryant had refused to grant a reprieve, saying after a review of the case, “I have decided not to grant clemency for his violent acts.”

Turner’s lawyers had argued in the petition to the U.S. Supreme Court that he inherited a serious mental illness. They argued that his father is thought to have committed suicide by shooting a gun into a shed filled with dynamite and his grandmother and great-grandmother both spent time in the state mental hospital. Turner’s attorneys say he was severely disfigured during a suicide attempt at 18 by putting a rifle in his mouth and pulling the trigger. He had been released from a mental hospital just weeks before killing the two men, his lawyers said.

Turner’s lawyers had objected to the pace of events in the scheduling of the execution. “Execution was set in this case with only 13 days’ notice -- a procedure that would be illegal in most other states. Mississippi has created a time crunch and forced both the courts and the Governor to respond to this most serious of cases with inadequate time and consideration,” said Richard Bourke, director of the Louisiana Capital Assistance Center.

Corrections Commissioner Chris Epps said Turner was talkative during the day Wednesday but declined to discuss the crimes for which he was sentenced to death. Asked if Turner seemed mentally ill, Epps said of his visit with the prisoner in those final hours: “No, not to me. He appears to be on the ball.” Attorney General Jim Hood has said Turner’s mental health claims had been “fully addressed.”

Turner was convicted of killing the two men while robbing gas stations with Stewart, in a spree that netted about $400.

The 37-year-old Brooks was working at Mims Turkey Village Truck Stop on Mississippi’s U.S. Highway 82 when he was shot in the head and chest, but the pair left empty handed when they couldn’t get the register open even by shooting at it, according to court records. The two drove down the road to Mims One Stop, where Curry, a 38-year-old prison guard, was pumping gas. Stewart went inside to rob the store while Turner forced Curry to the ground at gunpoint. “As Curry was pleading for his life, Turner shot him in the head,” the records said.

ProDeathPenalty.Com

DeathPenaltyNews

Edwin Hart Turner

A federal judge on Monday temporarily halted the scheduled execution of a convicted murderer in Mississippi in order to allow attorneys to argue whether the state has improperly kept him from getting a psychiatric evaluation. Edwin Hart Turner, 38, who was convicted of murdering two people during convenience store robberies in 1995, was set to die by lethal injection on Wednesday.

In an order on Monday, U.S. District Court Judge Carlton W. Reeves postponed Turner's execution until at least February 20. Last week, Turner's attorney filed a court brief accusing the Mississippi Department of Corrections of improperly preventing a psychiatrist from evaluating Turner.

Attorney James Craig of the Louisiana Capital Assistance Center said in the court filing that important information that related to Turner's mental health wasn't presented during his trial. Craig said Turner had a "long and extensive" history of mental illness. The U.S. Supreme Court has ruled that executing mentally retarded people is cruel and unusual punishment. Turner is asking the Supreme Court to extend that ruling to the mentally ill.

Turner was sentenced to death for killing Eddie Brooks and Everett Curry in 2 separate incidents in Carroll County, Mississippi on the same day in 1995. Before the murders, a suicide attempt had left Turner's face disfigured. Witnesses identified him at 1 of the crime scenes by a towel he wore around his head to hide his disfigurement.

An accomplice, Paul M. Stewart, confessed to the crimes and testified against Turner. Stewart was convicted of 2 counts of capital murder and sentenced to 2 consecutive life terms in prison. A spokeswoman for Attorney General Jim Hood said he had not yet reviewed the court order postponing the execution and would only comment on the case through court filings.

(Source: Reuters, Feb.7, 2012)

Mississippi execution is temporarily blocked by judge

A federal judge on Monday temporarily blocked the execution of a Mississippi inmate who killed two men during a robbery spree in 1995. The man's attorneys asked for the order, not arguing guilt or innocence, but that Edwin Hart Turner is mentally ill and should not be executed. Condemned inmate Edwin Hart Turner has asked a federal judge to halt his scheduled Feb. 8 execution until he can get a mental examination. U.S. District Judge Carlton Reeves will conduct a hearing Friday in Jackson on Turner's request.

U.S. District Judge Carlton Reeves ordered the Mississippi Department of Corrections to allow Turner to be seen by a psychiatrist of his choosing. James Craig with the Louisiana Capital Assistance Center argues that a Mississippi Department of Corrections policy prohibited Turner from getting tests that could prove he's mentally ill. Craig said the policy, which dates to the 1990s, violates prisoners' rights to have access to courts and other materials that can help them develop evidence.

The policy requires court orders for medical experts or others to visit and test inmates. Craig said the right tests would show Turner is mentally ill. Mississippi Attorney General Jim Hood has said Turner's lawyers are bringing up old arguments that have been rejected by the courts before. "We argue that his mental health claims have been fully addressed, and that this present action is nothing more than an attempt to re-litigate a claim that has been properly adjudicated at every turn," Hood said in a statement.

Mississippi is 1 of 10 states that permit someone who suffered from serious mental illness at the time of the offense to be executed, according to a petition filed with the U.S. Supreme Court. Turner's lawyers want the Court to prohibit the execution of mentally ill people the way it did inmates considered mentally retarded.

There's little dispute that Turner killed the men then went home and had a meal of shrimp and cinnamon rolls before going to sleep. He's scheduled to die by injection Wednesday. His attorneys have filed 2 separate petitions that seek to stop the execution, 1 with the U.S. Supreme Court and the other 1 in federal court in Jackson. Turner's lawyers argue that Turner inherited a serious mental illness. His father is thought to have committed suicide by shooting a gun into a shed filled with dynamite and his grandmother and great-grandmother both spent time in the state mental hospital.

Craig said in a telephone interview Monday that Turner had spent 3 months in the Mississippi State Hospital at Whitfield after slitting his wrists in 1995. He had been out about 6 weeks before the killings occurred.

Turner, 38, was convicted of killing the 2 men while robbing gas stations with his friend, Paul Murrell Stewart, in a spree that netted about $400. Stewart, who was 17 at the time, testified against Turner and was sentenced to life in prison. Craig said Turner was diagnosed with depression that year and given the antidepressant medication Prozac. Craig believes Turner was misdiagnosed and that Prozac compounded his problems. "If the folks at Whitfield knew then what we know now, I feel confident they wouldn't have released him with 40 milligrams of Prozac," Craig said.

(Source: Associated Press, Feb. 7, 2012)

Huffington Post

PARCHMAN, Miss. -- A Mississippi man was put to death Wednesday evening for killing two men in a December 1995 robbery spree after the courts declined to stop the execution based on arguments that the inmate was mentally ill at the time. Edwin Hart Turner, 38, died at 7:21 p.m. EST after receiving a chemical injection at the Mississippi State Penitentiary at Parchman, authorities said.

Turner was convicted of capital murder in the deaths of Eddie Brooks and Everett Curry, who were slain at two gas stations a few miles apart that were targeted by Turner and another armed friend in a spree that netted them about $400. Brooks was shot to death first while working at one of the gas stations and Curry at the other while pumping gas when the pair went there next, toting rifles. Turner's accomplice testified against him and was sentenced to life in prison.

Wearing a red prison jumpsuit as he lay strapped on a gurney, Turner said, "No" when asked if he had a last statement. When the lethal chemicals began flowing, he closed his eyes, took a deep breath and appeared to fall asleep.

The sister and a cousin of victim Eddie Brooks watched the execution. The brother and son of his other victim, Everett Curry, also did. One of Curry's other brothers read a family statement afterward. "I don't think we will ever have complete closure because a void will always exist in our hearts," said Roy Curry, who did not watch the execution. "At least we will have some consolation in knowing that the person who committed this cowardly and senseless act is finally gone." Turner had requested that none of his family watch the execution, though his attorney and a pastor were present.

There was little dispute that Turner killed the two men while robbing gas stations, then went home and had a meal of shrimp and cinnamon rolls before going to sleep. But his lawyers had tried to block the execution in various state and federal courts based on the argument that Turner was mentally ill at the time of the crimes. The lawyers had hoped the U.S. Supreme Court would outlaw executions of the mentally ill as it has done with people considered mentally retarded.

The nation's highest court allowed the execution to go forward Wednesday when it rejected petitions to stop it. Earlier in the day, Mississippi Gov. Phil Bryant had refused to grant a reprieve, saying after a review of the case, "I have decided not to grant clemency for his violent acts." Turner's lawyers had argued in the petition to the U.S. Supreme Court that he inherited a serious mental illness. They argued that his father is thought to have committed suicide by shooting a gun into a shed filled with dynamite and his grandmother and great-grandmother both spent time in the state mental hospital.

Turner's attorneys say he was severely disfigured during a suicide attempt at 18 by putting a rifle in his mouth and pulling the trigger. He had been released from a mental hospital just weeks before killing the two men, his lawyers said. Attorney General Jim Hood has said recently that Turner's mental health claims had been "fully addressed."

Richard Bourke, director of the Louisiana Capital Assistance Center that represented Turner, said after the execution in an emailed statement that he lamented the "tragic and senseless" killings. He also said Mississippi's mental health care system failed Turner, describing him as "a seriously mentally ill and tortured man" with no criminal history before those slayings.

Bourke's statement added Mississippi was among a handful of states that provide the least protection for the seriously mentally ill in their criminal justice systems. "This needs to change. At the very least, seriously mentally ill offenders whose illness contributed directly to their crimes should not be subjected to the death penalty," the statement added.

Turner v. State, 732 So.2d 937 (Miss. 1999). (Direct Appeal)

Defendant was convicted in the Circuit Court, Forrest County, of two counts of capital murder while in commission of armed robbery and sentenced to death after change of venue from the Circuit Court, Carroll County, C.E. Morgan, III, J. Defendant appealed. The Supreme Court, Pittman, P.J., held that: (1) warrantless arrest was legal; (2) defendant was not entitled to lesser included offense instruction on simple murder; and (3) death sentence was not excessive or disproportionate to other capital cases. Affirmed.

PITTMAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. The case at bar is an appeal from the Circuit Court of Forrest County, Mississippi, after a change of venue from Carroll County, Mississippi, First Judicial District. Turner was indicted by the Grand Jury of Carroll County, Mississippi, First Judicial District, on May 20, 1996, in a two count indictment charging him in Count I with the December 13, 1995, capital murder of Eddie Brooks during the commission of an armed robbery in violation of Miss.Code Ann. § 97–3–19(2)(e) and in Count II with the December 13, 1995, capital murder of Everett Curry during the commission of an armed robbery in violation of Miss.Code Ann. § 97–3–19(2)(e). Turner was tried, and the jury, after deliberation, found him guilty of capital murder on both Counts I and II on February 13, 1997. The jury then heard evidence in aggravation and mitigation of sentence. After deliberation, on February 14, 1997, the jury returned the following verdicts in proper form sentencing Turner to death on both Counts I and II.

¶ 2. The Count I verdict states: We, the Jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder charged in Count I of the indictment: 1. That the defendant actually killed Eddie Brooks. 2. That the defendant attempted to kill Eddie Brooks. 3. That the defendant intended that the killing of Eddie Brooks take place. 4. That the defendant contemplated that lethal force would be employed. Next, we the jury, unanimously find that the aggravating circumstances of: The capital offense was committed for pecuniary gain during the course of an armed robbery. exists beyond a reasonable doubt and is sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances, and we further find unanimously that the defendant should suffer death as to Count I of the indictment.

/s/Earl J. McGehee
Foreman of the Jury

¶ 3. The Count II verdict states: We, the Jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder charged in Count II of the indictment: 1. That the defendant actually killed Everett Curry. 2 That the defendant attempted to kill Everett Curry. 3. That the defendant intended that the killing of Everett Curry take place. 4. That the defendant contemplated that lethal force would be employed. Next, we the jury, unanimously find that the aggravating circumstances of: The capital offense was committed for pecuniary gain during the course of an armed robbery. exists beyond a reasonable doubt and is sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances, and we further find unanimously that the defendant should suffer death as to Count II of the indictment.

/s/Earl J. McGehee
Foreman of the Jury

¶ 4. After the sentence of death was imposed by the jury, the trial court set an execution date of March 28, 1997. Turner's motion for new trial was denied on March 25, 1997.FN1 Turner perfected his appeal on April 24, 1997. Turner presently awaits the outcome of this appeal in the Maximum Security Unit of the State Penitentiary at Parchman, Mississippi.

FN1. The order denying Turner's motion for new trial is dated July 10, 1997. However, the motion was orally denied on March 25, 1997, at the conclusion of the hearing on the motion for new trial.

¶ 5. Turner has raised thirteen (13) assignments of error for review by this Court: I. THE ARREST OF TURNER WAS ILLEGAL PURSUANT TO MISS. CODE ANN. § 99–3–7 AND SUBSEQUENT SEARCH AND SEIZURE VIOLATED THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THEIR MISSISSIPPI CONSTITUTIONAL COUNTERPARTS. II. COUPLING A VAGUE INDICTMENT WHICH DID NOT FAIRLY APPRISE THE DEFENDANT WITH NOTICE OF WHICH UNDERLYING FELONY WOULD BE PURSUED ALONG WITH A DUPLICITOUS JURY INSTRUCTION VIOLATED THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. III. THE LOWER COURT ERRED IN DENYING TURNER'S PROPOSED LESSER INCLUDED OFFENSE INSTRUCTION. IV. THE PROSECUTOR ENGAGED IN WHOLLY IMPROPER CROSSEXAMINATION OF SENTENCING PHASE WITNESSES SOLELY FOR THE PURPOSE OF INJECTING PREJUDICE TO INFLAME THE JURY. V. THE TRIAL COURT ERRED IN EXCLUDING RELEVANT MITIGATION EVIDENCE IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS AND STATE LAW. VI. THE LOWER COURT ERRED IN LIMITING CONSIDERATION OF MENTAL CAPACITY MITIGATING CIRCUMSTANCE TO “SUBSTANTIAL IMPAIRMENT.” VII. THE INSTRUCTIONS TO THE JURY AND THE INTRODUCTION OF THE GUILT PHASE EVIDENCE AT THE SENTENCING PHASE VIOLATED STATE LAW AND THE FEDERAL AND STATE CONSTITUTIONS. VIII. THE LOWER COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THERE IS A PRESUMPTION THAT NO AGGRAVATING CIRCUMSTANCES EXIST. IX. THE LOWER COURT ERRED IN INSTRUCTING THE JURY AT SENTENCING IT COULD CONSIDER “THE DETAILED CIRCUMSTANCES OF THE OFFENSE.” X. THE LOWER COURT VIOLATED THE EIGHTH AMENDMENT AND STATE LAW BY INSTRUCTING THE JURY TO DISREGARD SYMPATHY IN REACHING ITS SENTENCING DECISION. XI. THE EIGHTH AMENDMENT AND STATE LAW WERE VIOLATED WHEN THE LOWER COURT ALLOWED IN ESSENCE BOTH THE ROBBERY AND PECUNIARY GAIN AGGRAVATING CIRCUMSTANCES TO BE CONSIDERED BY THE JURY. XII. THE STATE'S MISCONDUCT IN THE CLOSING ARGUMENT WARRANTS REVERSAL OF THE DEATH SENTENCE. XIII. THE STATE IMPROPERLY ARGUED STATUTORY AGGRAVATING CIRCUMSTANCE WHEN IT HAD PREVIOUSLY ON THE RECORD ELECTED TO ONLY PROCEED WITH THE PECUNIARY GAIN AGGRAVATOR AND HAD NOT SOUGHT TO PROCEED WITH THE HEINOUS, ATROCIOUS AND CRUEL AGGRAVATOR IN THE SENTENCING INSTRUCTION.

STATEMENT OF THE FACTS

¶ 6. On the night of December 12, 1995, Appellant Edwin Hart Turner (hereinafter Turner) and Paul Murrell Stewart (hereinafter Stewart) had been drinking beer and smoking marijuana while driving around Leflore and Carroll Counties in Stewart's automobile. Around midnight the vehicle veered off the gravel road and became stuck in a ditch. Turner and Stewart walked to the nearby home of Doyle Carpenter, a friend of Turner's. Carpenter carried the pair to Turner's home when the trio were unable to free the automobile from the ditch. Once back at Turner's house, Turner and Stewart decided to rob some place. The crimes at issue in the present case occurred at two separate convenience stores approximately four miles apart on U.S. Highway 82 in Carroll County, Mississippi.

¶ 7. The crime spree began at Mims Turkey Village Truck Stop. Turner and Stewart went into the store wearing masks and carrying high-powered rifles. Turner used a 6mm rifle, while Stewart carried a .243 rifle with a scope attached. Turner and Stewart walked into the store and then Turner shot Eddie Brooks, the store clerk, in the chest. Eddie Brooks slumped behind the counter and fell to the floor.

¶ 8. Turner and Stewart went behind the counter to the cash register but could not get it to open. The two men became angry when they could not open the cash register. Stewart shot the cash register, but it still would not open. Turner, in a rage, struck the butt of his rifle on the cash register. Turner then shot at the cash register to no avail. Turner then became enraged. Turner placed the barrel of his gun inches from Eddie Brooks' head and pulled the trigger, killing Mr. Brooks.

¶ 9. Unsuccessful in their attempt to get any money, the two men immediately drove to Mims One Stop. Everett Curry was standing next to a gas pump outside. There were several people inside. Stewart went inside the store to rob it while Turner made Everett Curry get on the ground by threatening him with his 6mm rifle. As Curry was pleading for his life, Turner shot him in the head, killing him. Meanwhile, Stewart was ordering the clerk to fill a paper bag with money.

¶ 10. After killing Everett Curry, Turner then ran into the store and ordered everyone to get down. Turner then pointed a gun at a man in the store. Stewart urged Turner not to kill anyone else since they already had the money that they came for. Turner and Stewart then left the store and returned to Turner's house.

¶ 11. Turner and Stewart put the guns inside Turner's house. Stewart left his white hockey mask on the back seat of Turner's car. Stewart then counted the money (about $400.) which they then split, while Turner prepared shrimp and cinnamon rolls which the two then ate. Turner and Stewart awoke later that morning to several law enforcement officers knocking on the door. The officers discovered two high-powered rifles in Turner's house. Turner and Stewart were then arrested and brought to Carroll County Sheriff C.D. Whitfield. Stewart gave a full confession outlining the above events. The Sheriff then got a search warrant for Turner's house.

¶ 12. Turner was tried and found guilty of two counts of capital murder while in the commission of armed robbery. The jury then imposed the death penalty for both counts of capital murder. This appeal followed.

DISCUSSION OF THE ISSUES

I. THE ARREST OF TURNER WAS ILLEGAL PURSUANT TO MISS. CODE ANN. § 99–3–7 AND SUBSEQUENT SEARCH AND SEIZURE VIOLATED THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THEIR MISSISSIPPI CONSTITUTIONAL COUNTERPARTS.

A. WARRANTLESS ARREST

¶ 13. Turner argues forcefully that the information possessed by the law enforcement officers at the time that they went to Turner's home, handcuffed both Turner and Stewart, and drove them away in police cars from the Turner home was insufficient to establish the requisite probable cause needed to arrest Turner without a warrant. Turner argues that the law enforcement officers knew the following: 1. They knew first of all that two persons were dead and that they had met their end by use of a deadly weapon. There was however nothing connected to the dead bodies that signaled Hart Turner's involvement. 2. They recovered from the scenes hulls and casings presumably ejected from the deadly weapons. There was nothing unique about the physical evidence that signaled Hart Turner's involvement. 3. They knew at the first murder scene that no eyewitnesses observed the killing or the perpetrators, nor gave a description of the offender's vehicle. Nothing signaled Hart Turner's involvement. 4. They knew at the second murder scene that no eyewitness could identify the perpetrators as their faces were concealed with masks. No one recognized the masks [as] belong[ing] to Hart Turner and no one got a view of the getaway vehicle license plate which again did not signal Hart Turner's involvement. In fact the best anyone ever came up with was a gray or silver car and Turner owned a dark blue car. 5. They discovered a wallet, purportedly of the victim of the second homicide, yet no fingerprint analysis was done to manifest Hart Turner's involvement. 6. No fingerprint evidence linked Turner to either of the homicides. 7. No one identified Hart Turner's voice as having been behind the mask. The perpetrators did not leave any of their own blood evidence to connect them nor had they left behind any other physical evidence demonstrating they had been there, eg. footprints, tire tracks. 8. No one recognized the rifles used in the killings. 9. At this time, roughly 2:15a.m. they had obviously not had the benefit of Paul Stewart's admissions and confessions, nor any other confidential informant information alerting them to Hart Turner. 10.They knew that the perpetrators were white males and one was taller than the other.

¶ 14. Conversely, the State argues that the law enforcement officers had a great deal of evidence linking Turner to the two capital murders. In the present case, the officers knew that two murders a few miles apart on Highway 82 had taken place. Two eyewitnesses remembered that two white males of average height, one taller than the other, had perpetrated these crimes. The night manager saw one white male with a gun holding up a patron of his store who was outside pumping gas, and another white male enter the store with a gun wearing a white hockey mask. What the white male standing outside the gas station at the second crime scene was (or was not) wearing is the subject of much contention and debate in the trial record and for that reason will not be assumed by this Court.

¶ 15. Both sides cite Rome v. State, 348 So.2d 1026 (Miss.1977), for support of their position as to this issue. In Rome, the facts were as follows: The Stone County Courthouse was burglarized at night and almost $2000.00 was stolen. Id. at 1027. A policeman on foot patrol in the area heard a noise coming from the courthouse area and spotted two men at which time he made his presence known and ordered them to halt. Id. The two men split up—one was apprehended and the other got away. Id. Officer Griffin was called in for assistance by the arresting officer. Id.

¶ 16. Officer Griffin, after assisting the arresting officer, went in his patrol car back to the same area of the courthouse and began patrolling it. Id. At this time, Officer Griffin did not know that the courthouse had been burglarized, only that two men had been spotted in the area acting suspiciously and one had run when the police officer ordered them to halt and had gotten away. Id.

¶ 17. This Court found that, [T]he record is devoid of any proof that Officer Griffin, at the time he arrested Rome, had any reasonable ground to ‘suspect and believe’ that Rome had committed the ‘felony’ as required by Miss.Code Ann. § 99–3–7.[ ]. According to Griffin, he did not know that the courthouse had been burglarized when he took Rome to the police station.... Based upon the totality of the circumstances of this case, we cannot hold that Griffin had sufficient evidence to believe that Rome had committed a felony.... To uphold the arrest would lay down the unacceptable rule that law officers may arrest any stranger deemed by them to be suspect of having committed an unknown crime, and then hunt a crime to be charged against such a citizen. Id. at 1028–29.

¶ 18. While Rome is good law and is very instructive, the facts in the present case do not support a similar finding of reversal as was the decision in Rome. This Court in Rome stated the correct test which we are to apply to arrests without a warrant. Id. at 1027. This Court stated, “[p]robable cause means more than bare suspicion, but does not necessarily require sufficient evidence to support a criminal conviction.” (quoting Powe v. State, 235 So.2d 920 (Miss.1970)).

¶ 19. Here, two white males in a Toyota with a Georgia plate, tag number FGZ–818, had evaded Leflore County authorities the night before the early morning killings. Leflore County Sheriff Ricky Banks obtained a John Doe arrest warrant for the two white males. High powered rifle hull casings were found at the scene of the crime. Doyle Carpenter told authorities that he gave Turner and another white male a ride to Turner's home when the Toyota with a Georgia plate, tag number FGZ–818 they were riding in, became stuck in the ditch earlier in the evening. Sheriff Whitfield remembered Hart Turner as a white male who had a history of violence.

¶ 20. The Toyota stuck in the ditch had a Pillow Academy bumper sticker on it which was traced to Stewart, a young white male. There was a trail of footprints leading from the abandoned vehicle to a house up the gravel road that belonged to Doyle Carpenter. Doyle Carpenter described the two men to the law enforcement officers and told them that he had carried them to Turner's residence that night when the three of them could not dislodge the car from the ditch. Sheriff Whitfield asked his deputies to drive to Turner's residence and tell the two men he wanted to talk to them. When Deputy R.W. Miller and Milton Smith arrived at Turner's home, they looked in the window of Turner's Honda Accord. They observed a white hockey mask (consistent with the one described by the witnesses at the second crime scene) lying on the back seat of the car and noticed a live rifle cartridge lying on the car's floorboard.

¶ 21. The officers knocked on the door at Turner's house. Turner opened the door at which time boxes of rifle shells were visible lying on the floor inside the house. Turner then asked the law enforcement officers inside. Once inside, the officers asked Turner whether anyone else was in the house to which Turner replied that his buddy was in the back bedroom. Turner started back towards that bedroom but was stopped by the law officers who then went back to the bedroom themselves. They found Stewart in the bed and observed two rifles lying on two couches in that bedroom.

¶ 22. Then both Turner and Stewart were handcuffed, wearing nothing but their underwear. Turner and Stewart were Mirandized according to the arresting officer, and Turner refused to talk. The question is were they under arrest at this time when they were handcuffed and led away to the police patrol cars?

¶ 23. This Court in Riddles v. State, 471 So.2d 1234 (Miss.1985), outlined the test to be used here. If the potential arrestee “could not have believed under such circumstances that he was free to leave,” then the arrestee is in fact under arrest. Given the facts of the present case, Turner and Stewart could not reasonably have believed that they were free to leave. Therefore, they were under arrest when they were handcuffed at Turner's house by the law enforcement officers and carried away in police cars. [2]

¶ 24. The issue then becomes, was this an illegal arrest since the officers had no arrest warrant at this time? Mississippi Code Ann. § 99–3–7(1) (Supp.1998), regulates when arrests may be made without a warrant:

An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit. .... (emphasis added).

¶ 25. According to Stewart's testimony at the trial, the police officers told them that morning that they were under arrest and then sat them down in the living room and began asking them questions after being handcuffed. Stewart testified the police wanted them to sign a piece of paper (presumably a waiver of rights form). Turner and Stewart refused to sign it. Importantly, the record does not reflect that either Turner or Stewart requested to speak with an attorney. The officers told Turner and Stewart at that time that they suspected them of having been involved in the tragic deaths of the two victims in this case, Curry and Brooks.

¶ 26. The officers in the present case complied with the statute, Miss.Code Ann. § 99–3–7, in arresting Turner without an arrest warrant. First, a felony had been committed. Two men had been slain in the process of two separate armed robberies. Secondly, a large body of evidence was known at the time of the arrest, including: 1) an abandoned vehicle which fit the description down to the exact license tag number of Stewart's Toyota which had been driven recklessly in Leflore County the night before the early morning killings which had resulted in two John Doe arrest warrants for two young white males; 2) a trail of footprints from that abandoned vehicle which led to Doyle Carpenter's house; 3) Doyle Carpenter having told the officers that he had carried Turner and a friend of Turner's to Turner's house around midnight December 12, 1995; 4) upon the officers arriving at the Turner house, they noticed a white hockey mask lying on the back seat of Turner's vehicle as well as a live rifle round lying on the floorboard in plain view—viewed through the window of the car; 5) upon knocking on the door and Turner opening it, a box of rifle shells were seen in plain view; 6) Turner invited the officers into the house and upon entering the house more shells were visible in plain view lying on the floor; 7) when asked if Turner was alone, Turner replied that his buddy was in the back bedroom, and upon going to the back bedroom to find this person, Stewart was found in the bed and two rifles were seen in plain view lying on two couches in the bedroom.

¶ 27. All of this evidence, coupled with the knowledge that two murders had occurred in the early morning hours of that same day with a high-powered rifle, perpetrated by two young white males (one wearing a white hockey mask) amounted to “reasonable ground[s] to suspect and believe the person proposed to be arrested to have committed it [the felony]....” Miss.Code Ann. § 99–3–7(1) (Supp.1998). Therefore, Turner's arrest without a warrant was legal. This result is properly reached even disregarding the much contested evidence concerning whether Turner was wearing a white towel around his neck during the murders in the early morning hours of December 13, 1995, as testified to by some witnesses.

¶ 28. Furthermore, even had the arrest been found improper (which it has not), that error would have been harmless since no evidence flowed from that arrest which was crucial to the conviction.

B. SEARCH WARRANT

¶ 29. Having determined that the arrests were legal, the next issue is whether the seizure of the evidence by means of a search warrant later that same day was proper. Turner argues that since the police had no probable cause to arrest him that morning, it follows that any evidence derived as a result of the illegal arrest is tainted. At the time that the officers restrained Turner's and Stewart's movement in the house they were under arrest. Riddles v. State, 471 So.2d 1234 (Miss.1985). At that moment, the officers would have been justified in seizing the evidence which was in plain view. However, out of an abundance of caution they did not seize or even touch the items of evidence in the house.

¶ 30. Turner's argument fails due in large part to the fact that his arrest was legal. Therefore, the evidence discovered as a result of that arrest was not tainted. Furthermore, by the time the affidavit for a search warrant was presented to the magistrate more evidence had been obtained, not the least of which was the confession of Stewart, Turner's partner in crime.

¶ 31. This Court stated in Fisher v. State, 690 So.2d 268, 274 (Miss.1996), that “[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” In Branch v. State, 347 So.2d 957, 958 (Miss.1977), this Court stated, “the burden is on the appellant to demonstrate some reversible error to this Court. It is the appellant's duty to see that all matters necessary to his appeal, such as exhibits, witnesses' testimony, and so forth, are included in the record, and he may not complain of his own failures in that regard.”

¶ 32. The trial judge, in regard to Turner's Motion to Suppress Evidence, concluded: [T]he Sheriff went to the, went and prepared an affidavit and search warrant together with the underlying facts and circumstances. He has testified here today. The Court has examined the underlying facts and circumstances and finds no material contradiction between the facts, underlying facts and circumstances in the affidavit, accompanying the affidavit, or with what Sheriff Whitfield testified to today. Although the Court finds it's not necessarily material as to whether or not those statements were true, the question is were the facts presented to the Magistrate sufficient for her to have probable cause to issue the warrant. I find the material facts are true though, and I find that the underlying facts and circumstances presented to the Magistrate are more than adequate to give her probable cause to issue the warrant. And therefore, the Motion to Suppress is overruled.

¶ 33. The trial judge allowed Turner's counsel ample opportunity to cross-examine the State's witnesses about the events surrounding the discovery of the rifles and the clothing. Turner failed to establish any fault with the law enforcement officers' work. For these reasons, the arrest of Turner was legal pursuant to Miss.Code Ann. § 99–3–7 (Supp.1998), and the subsequent search and seizure pursuant to a search did not violate the Fourth and Fourteenth Amendments to the United States Constitution and their Mississippi Constitutional counterparts.

II. COUPLING A VAGUE INDICTMENT WHICH DID NOT FAIRLY APPRISE THE DEFENDANT WITH NOTICE OF WHICH UNDERLYING FELONY WOULD BE PURSUED ALONG WITH A DUPLICITOUS JURY INSTRUCTION VIOLATED THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS.

¶ 34. The indictment in the present case is as follows: The Grand Jurors of the State of Mississippi, taken from the body of good and lawful citizens of said [Carroll] County, elected, summoned, empaneled, sworn and charged to inquire in and for the county aforesaid, at the term aforesaid of the Court aforesaid, in the name and by the authority of the State of Mississippi, upon their oath present that

Count I - Edwin Hart Turner late of the First Judicial District of Carroll County, Mississippi, on or about the 13 th day of December, 1995, in the county, judicial district, and state aforesaid, and within the jurisdiction of this Court, while acting in concert with and/or aiding, abetting, or assisting one Paul M. Stewart, did unlawfully, wilfully, feloniously, and either with or without the deliberate design to effect death, kill and murder Eddie Brooks, a human being, by shooting him with a rifle, while engaged in the commission of the felony crime of armed robbery in violation of Miss.Code Ann. Section 97–3–79 and Section 97–3–19(2)(e) (as amended) and constituting a series of related acts or transactions or a common scheme or plan, and against the peace and dignity of the State of Mississippi.

Count II - Edwin Hart Turner late of the First Judicial District of Carroll County, Mississippi, on or about the 13 th day of December, 1995, in the county, judicial district, and state aforesaid, and within the jurisdiction of this Court, while acting in concert with and/or aiding, abetting, or assisting one Paul M. Stewart, did unlawfully, wilfully, feloniously, and either with or without the deliberate design to effect death, kill and murder Everett Curry, a human being, by shooting him with a rifle, while engaged in the commission of the felony crime of armed robbery in violation of Miss.Code Ann. Section 97–3–79 and Section 97–3–19(2)(e) (as amended) and constituting a series of related acts or transactions or a common scheme or plan, and against the peace and dignity of the State of Mississippi.

¶ 35. Turner's argument on this issue centers on the premise that on Count II, he is unaware (based upon the indictment) whether the death of Everett Curry was effected during the armed robbery of Everett Curry or of the gas station where Curry was outside pumping gas. At trial, Turner contends the State introduced evidence of two separate armed robberies: one of Curry and one of the gas station. Turner argues that since the proof at trial went to two separate armed robberies at the scene where Everett Curry was killed, and since the indictment does not apprise Turner of which alleged armed robbery is the basis of the underlying felony, it cannot be said with any certainty that he had fair notice with which to prepare his defense. For support of this argument, Turner relies heavily upon State v. Berryhill, 703 So.2d 250 (Miss.1997).

¶ 36. Berryhill is readily distinguishable from the facts in the instant case. In Berryhill, Anthony Berryhill was indicted for capital murder while engaged in the commission of a burglary. Id. at 252. In Berryhill, this Court held that “capital murder indictments that are predicated upon the underlying felony of burglary must assert with specificity the felony that comprises the burglary.” Id. at 258. However, this Court in Berryhill also distinguished capital murder cases predicated upon burglary from all other capital cases:

Simply put, the level of notice that would reasonably enable a defendant to defend himself against a capital murder charge that is predicated upon burglary must, to be fair, include notice of the crime comprising the burglary. Burglary is unlike robbery and all other capital murder predicate felonies in that it requires as an essential element the intent to commit another crime. While it is true that the general rule finds indictments that track the language of the criminal statute to be sufficient, Ward v. State, 479 So.2d 713, 715 (Miss.1985)(charging aggravated assault), the fairer rule in case of capital murder arising out of burglary is that which we intimated in Moore, and would require the indictment to name the crime underlying the burglary in addition to tracking the capital murder statute.... Id. at 256. (emphasis added).

¶ 37. This Court in Berryhill very clearly addressed Turner's issue here. Only in capital murder cases predicated upon the felony of burglary will this Court require a more detailed indictment: to the extent of noticing the defendant with what felony was intended in the burglary. This is a capital case with the predicate felony being armed robbery. The indictment certainly put Turner on notice of this fact and was, therefore, adequate.

¶ 38. A more analogous case to the present one is Mackbee v. State, 575 So.2d 16 (Miss.1990). In that case, Mackbee's capital murder indictment allge[d] that the murder of Montgomery was committed while Mackbee was ‘engaged in the commission of the crime of robbery’.... Mackbee argue[d] that the capital murder indictment was void for failure to specify overt facts committed during the course of the robbery.... Mackbee contend[ed] the lack of notice concerning the underlying felony render [ed] his conviction void. Id. at 34–35.

¶ 39. This Court held that “[o]n the merits, Mackbee's argument ... fails because the indictment further read, ‘contrary to and in violation of § 97–3–19(2)(e) of the Mississippi Code of 1972’ which is the statutory provision for capital murder.” Id. at 35. Similarly, in the present case, the indictment contains the important “in violation of ... § 97–3–19(2)(e)” language. Id. Furthermore, as in Mackbee, since Turner failed to raise this issue at the trial level, it is barred under Miss.Code Ann. § 99–7–21(Rev.1994), which states: All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward. The court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.

¶ 40. Not only is Turner's argument barred since he failed to raise any objection at the trial level, but it also fails on the merits.

III. THE LOWER COURT ERRED IN DENYING TURNER'S PROPOSED LESSER INCLUDED OFFENSE INSTRUCTION.

¶ 41. Turner argues that the jury should have been given a lesser included offense instruction on simple murder. Turner contends, based on the testimony of Stewart as to Count I of the indictment, that the clerk was shot prior to any robbery or attempted robbery. The moment that Turner entered the store was when the shot was fired. Turner claims that whether or not an armed robbery occurred after that time is not the issue.

¶ 42. Similarly, Turner contends that a lesser included offense instruction of simple murder should also have been given as to Court II. Turner again relies on Stewart's testimony that before Stewart could even make his way into the store and brandish his weapon, Turner had killed Everett Curry, a non-employee pumping gas outside the store. Turner argues that it is plausible that the jury could have found that Everett Curry was not killed in furtherance of a robbery of him or the store.

¶ 43. The State contends that this issue is totally without merit. The State points to the fact that the trial judge heard extensive arguments from both sides as to whether this lesser included offense instruction should be given, and he found that the record was devoid of any proof which would warrant such an instruction.

¶ 44. This Court in Ormond v. State, 599 So.2d 951, 960–61 (Miss.1992), stated [a] lesser included offense instruction is proper only if the record supports finding an evidentiary basis for the instruction. Mease v. State, 539 So.2d 1324, 1330 (Miss.1989); Lee v. State, 469 So.2d 1225, 1230 (Miss.1985); Ruffin v. State, 44[444] So.2d 839, 840 (Miss.1984). Such instructions should not be indiscriminately granted, Mease, 539 So.2d at 1330, nor should they be based upon pure speculation, Fairchild v. State, 459 So.2d 793, 801 (Miss.1984); Mease, 539 So.2d at 1330. Under the appropriate standard: 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 reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge). Mease, 539 So.2d at 1330 ( quoting Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)).

¶ 45. Applying these criteria to the facts in the present case, no error was committed by the trial judge in denying the lesser included offense charge of simple murder. The facts from the record simply do not support that theory of the case. The testimony of Stewart—the same testimony Turner relies upon as the basis of his argument for the lesser included offense of simple murder instruction—clearly details how the intent and purpose of Turner in the early morning hours of December 13, 1995, was to rob a store.

¶ 46. This testimony from Stewart as to intent was uncontradicted by any other testimony. Therefore, taking this uncontradicted testimony as true, it was Turner's specific intent throughout the events of those early morning hours, up to and including the times of both murders, to commit armed robbery.

¶ 47. Furthermore, Turner's argument fails on this issue because Mississippi recognizes the “one continuous transaction rationale” in capital cases. West v. State, 553 So.2d 8 (Miss.1989). There this Court stated: In Pickle v. State, 345 So.2d 623 (Miss.1977), we construed our capital murder statute and held that ‘the underlying crime begins where an indictable attempt is reached....’ 345 So.2d at 626; see also Layne v. State, 542 So.2d 237, 243 (Miss.1989); Fisher v. State, 481 So.2d 203, 212 (Miss.1985); and Culberson v. State, 379 So.2d 499, 503–04 (Miss.1979).... An indictment charging a killing occurring ‘while engaged in the commission of’ one of the enumerated felonies includes the actions of the defendant leading up to the felony, the attempted felony, and flight from the scene of the felony. West v. State, 553 So.2d at 13.

¶ 48. Applying one continuous transaction rationale to the evidence in the present case, the actions of Turner were all related to, and motivated by his desire to rob someone in those early morning hours of December 13, 1995. Therefore, the time of death of Eddie Brooks and Everett Curry—be it before or after the money was taken—is irrelevant. It is clear that these two innocent men died during the commission of armed robberies perpetrated by Stewart and Turner. For these reasons, this issue is without merit.

IV. THE PROSECUTOR ENGAGED IN WHOLLY IMPROPER CROSS–EXAMINATION OF SENTENCING PHASE WITNESSES SOLELY FOR THE PURPOSE OF INJECTING PREJUDICE TO INFLAME THE JURY.

¶ 49. Turner argues that during the sentencing phase, the State, on cross-examination of Turner's witnesses, brought up instances of Turner's conduct of which he was never convicted solely for the improper purpose of inflaming and prejudicing the jury. Specifically, according to Turner, the prosecutor sought to elicit responses from the witnesses concerning Turner's alleged beating of his mother, threats to kill his stepfather, and the contacting of local law enforcement officers in response to these alleged threats and other uncharged alleged misconduct. By failing to object to this questioning of these witnesses, Turner has waived the issue for appeal.

¶ 50. Nevertheless, addressing the merits of the claim, Turner placed his character into evidence in the sentencing phase of the trial. The State was entitled to ask the mitigating witnesses questions that would rebut their testimony that he was the victim of abuse, not the abuser. The State is allowed to rebut mitigating evidence through cross-examination, introduction of rebuttal evidence or by argument. Bell v. State, 725 So.2d 836, 1998 WL 334709 (Miss.1998); Davis v. State, 684 So.2d 643, 655 (Miss.1996).

¶ 51. The trial judge allowed Turner to put on witnesses who testified as to what a wonderful child he was and as to how this heinous crime was everyone's fault but Turner's. In response to this, on cross-examination, the State then is allowed to bring up the not so favorable instances from Turner's past, such as his threats of abuse towards his mother and step-dad. Therefore, Turner's arguments on this issue are meritless.

V. THE TRIAL COURT ERRED IN EXCLUDING RELEVANT MITIGATION EVIDENCE IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS AND STATE LAW.

¶ 52. Turner argues that during the sentencing phase of the trial, the defense attempted to elicit testimony from three mitigation witnesses related to the defendant's upbringing and relationship with his mother. The prosecution objected on the grounds of hearsay, and the trial court sustained the objections. Turner claims that in light of Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam), the action by the trial court in sustaining the objections was erroneous.

¶ 53. This Court in Ballenger v. State, 667 So.2d 1242, 1263 (Miss.1995) cert. denied, 518 U.S. 1025, 116 S.Ct. 2565, 135 L.Ed.2d 1082 (1996), held that it was too broad an interpretation of Green to say merely that a state evidentiary rule cannot operate to exclude otherwise relevant mitigating evidence. This Court has held that Green v. Georgia does not open the door to just any type evidence in mitigation; “unique circumstances” must exist to overcome the evidentiary rule against hearsay. Ballenger, 667 So.2d at 1262–63.

¶ 54. Turner has not pointed out what special or unique circumstances make the hearsay he wanted to introduce in mitigation admissible. He points to three instances in the sentencing phase where the trial court sustained objections to hearsay by the prosecution. These came during the testimony of Marsha Sanders Shaw, Turner's aunt, Pamela Sanders Crestwell, Turner's aunt, and Kenneth Crestwell, Turner's uncle.

¶ 55. Turner made no proffer as to what Mrs. Shaw would have testified to had she been allowed to answer the question. When a trial court rules so as to prevent certain testimony from being introduced, it is incumbent on the party to make a proffer of what the witness would have testified to or the point is waived for appellate review. Evans v. State, 725 So.2d 613, 1997 WL 562044 (Miss.1997). In Evans, this Court stated:

In Gayton[ Gayten] v. State, 595 So.2d 409, 413 (Miss.1992), this Court held that the failure to seek a definitive ruling on objections or to seek corrective action by the defendant waives the issue for the purposes of appeal. See also Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g denied, 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989); Cummings v. State, 465 So.2d 993, 996 (Miss.1985). Moreover, this Court has repeatedly held that ‘when testimony is excluded at trial, a record must be made of the proffered testimony in order to preserve the point for appeal.’ Gates v. State, 484 So.2d 1002, 1008 (Miss.1986). In Settles v. State, 584 So.2d 1260, 1265 (Miss.1991), this Court stated ‘if a proffer is required in the face of an erroneous ruling, surely no less is required to preserve the issue where no ruling is made.’ Evans' failure to seek a definite ruling by the trial court combined with the lack of a proffer of Giles' testimony waives this issue. This issue is without merit. Evans v. State, 725 So.2d 613, 1997 WL 562044,

¶ 239 (Miss.1997). See also Holland v. State, 705 So.2d 307, 348

¶ 172 (Miss.1997); Kolberg v. State, 704 So.2d 1307, 1321

¶ 67 (Miss.1997); Wilcher v. State, 697 So.2d 1087, 1093 (Miss.1997); Williams v. State, 684 So.2d 1179, 1194 (Miss.1996). The point has not been preserved for appellate review and is therefore waived. The same is true of the other two instances cited in the record by Turner. At neither instance did Turner make a proffer of what the testimony would have shown. Therefore, both assignments of error for appellate review have been waived.FN2 This issue is, therefore, without merit.

FN2. It is interesting to note that the first two assignments of error dealt with hearsay testimony where the defense was trying to elicit what Turner's mother had said to Turner. Turner's mother was present at trial, but did not testify in her son's behalf. Had this testimony been so crucial, the witness in the best position to testify to the conversation was the mother. However, for whatever reason, Turner chose not to call his mother. Similarly, the third assignment of error dealt with what he had said to Pam Crestwell. Instead of asking Pam Crestwell what Turner had told her, the defense asked her husband what Turner had told Pam. Had Turner desired for the jury to hear what he told Pam, he should have asked Pam, who had just finished testifying right before her husband.

VI. THE LOWER COURT ERRED IN LIMITING CONSIDERATION OF MENTAL CAPACITY MITIGATING CIRCUMSTANCE TO “SUBSTANTIAL IMPAIRMENT.”

¶ 56. Turner argues that during the instruction conference at the sentencing phase, Turner offered a form of the verdict which was essentially the same as the one approved by the lower court and offered by the State with one major exception. The defense instruction told the jury that they may consider as a mitigating circumstance “whether the capacity of Mr. Turner to appreciate the criminality of his conduct or to conform conduct to the requirements of the law was impaired at the time of the offense”. This instruction was refused. The State's instruction limited the consideration of this mitigator by requiring the jury to find that his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law had to be “substantially impaired”. Turner alleges that the instruction as given unconstitutionally limited the jury's consideration of Turner's emotional state and psychological problems, since a rational jury could have concluded that in order for his mental state to be a mitigating factor, a threshold of “substantial impairment” would have to be crossed.

¶ 57. This very issue was addressed by this Court in Berry v. State, 703 So.2d 269, 286–87 (Miss.1997). There, this Court held that the “catch-all” instruction ensured that the jury was allowed to consider all the mitigating circumstances. This Court has further held that when the “catchall instruction” is given the trial court can reject instructions on specific mitigating factors that are not supported by the evidence or that are in dispute. Lester v. State, 692 So.2d 755, 799 (Miss.1997). In Lester, this Court held, “[a] catchall instruction is sufficient to encompass nonstatutory mitigating factors. Lester, 692 So.2d at 799 (citing Blystone v. Pennsylvania, 494 U.S. 299, 308, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); Taylor v. State, 672 So.2d 1246, 1276–77 (Miss.1996)).

¶ 58. For these reasons, this claim is without merit.

VII. THE INSTRUCTIONS TO THE JURY AND THE INTRODUCTION OF THE GUILT PHASE EVIDENCE AT THE SENTENCING PHASE VIOLATED STATE LAW AND THE FEDERAL AND STATE CONSTITUTIONS.

¶ 59. At the start of the sentencing phase, the State moved that all evidence from the guilt phase of the trial be adopted and considered by the jury. The defense objected to the wholesale adoption of both the guilt phase testimony and nearly two hundred exhibits. The defense objection was overruled. The jury was instructed (SS–4) at the close of the case that it could consider all evidence from the guilt phase in determining the sentence to impose. Turner contends that the admission of all guilt phase evidence at the sentencing phase allowed the jury to sentence him to death based on non-statutory aggravating circumstances.

¶ 60. This Court in Jackson v. State, 337 So.2d 1242 (Miss.1976), outlined the procedure for the introduction of evidence in the sentencing phase of a capital murder trial. Regarding the presentation of evidence at the sentencing phase, this Court held:

At the sentencing hearing, the question to be decided by the jury is whether the defendant shall be sentenced to death or to life imprisonment. At this hearing, the State may elect to stand on the case made at the first hearing, if before the same jury, or may reintroduce any part of the evidence adduced at the first hearing which it considers to be relevant to the particular question of whether the defendant shall suffer death or be sentenced to life imprisonment. Jackson v. State, 337 So.2d at 1256 (emphasis added). See also Evans v. State, 725 So.2d 613, 1997 WL 562044,

¶ 395–97 (Miss.1997); Holland v. State, 705 So.2d 307, 350 (Miss.1997); Williams v. State, 684 So.2d 1179, 1207 (Miss.1996); Davis v. State, 660 So.2d 1228, 1253–54 (Miss.1995); Mack v. State, 650 So.2d 1289, 1323–24 (Miss.1994); Foster v. State, 639 So.2d 1263, 1301 (Miss.1994); In re Jordan, 390 So.2d 584, 585 (Miss.1980). Further, this Court has held that it is “preferable” for the State to move for the reintroduction of the evidence produced at the guilt phase at the beginning of the sentencing phase. Mack v. State, 650 So.2d 1289, 1323–24 (Miss.1994). However, failure to move for this reintroduction is not fatal error. Id. For these reasons, Turner's claim here is without merit.

VIII. THE LOWER COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THERE IS A PRESUMPTION THAT NO AGGRAVATING CIRCUMSTANCES EXIST.

¶ 61. Sentencing instruction number one contains the language in the initial paragraph that in reaching their decision, the jury “may objectively consider the detailed circumstances of the offense for which the defendant was convicted....” Turner alleges that by instructing the jury that it can consider the ‘detailed circumstances of the offense for which the defendant was convicted’ allows the jury to venture outside the boundaries of aggravating and mitigating circumstances.

¶ 62. As in Davis v. State, 660 So.2d 1228 (Miss.1995), a thorough reading of the entire jury instruction cures the alleged error. Sentencing instruction one states in relevant part: Consider only the following elements of aggravation in determining whether the death penalty should be imposed: 1. The capital offense was committed for pecuniary gain during the course of an armed robbery. You must unanimously find, beyond a reasonable doubt, that the preceding aggravating circumstance exists in this case to return the death penalty. If the aggravating circumstance is found not to exist, the death penalty may not be imposed....

¶ 63. This instruction unmistakably informs the jury that this particular aggravating circumstance must be found, beyond a reasonable doubt, in order to impose the death penalty.

¶ 64. Further, in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the United States Supreme Court held: Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974)(“The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is ‘innocent,’ but, on the [506 U.S. at 400, 113 S.Ct. 853] contrary, as one who has been convicted by due process of law of two brutal murders.

¶ 65. For these reasons, this issue is without merit.

IX. THE LOWER COURT ERRED IN INSTRUCTING THE JURY AT SENTENCING IT COULD CONSIDER “THE DETAILED CIRCUMSTANCES OF THE OFFENSE.”

¶ 66. Sentencing instruction number one contains the language in the initial paragraph that in reaching their decision, the jury may objectively consider the detailed circumstances of the offense for which the defendant was convicted. Turner argues that instructing the jury that it can consider the “detailed circumstances of the offense for which the defendant was convicted” allows the jury to venture outside the boundaries of aggravating and mitigating circumstances.

¶ 67. On the contrary, the use of the language “you may objectively consider the detailed circumstances of the offense for which the defendant was convicted” in the sentencing instruction is not error, but is recognized by this Court as a proper instruction. Doss v. State, 709 So.2d 369, 1997 WL 770606 (Miss.1996); Carr v. State, 655 So.2d 824, 856–57 (Miss.1995), cert. denied, 516 U.S. 1076, 116 S.Ct. 782, 133 L.Ed.2d 733 (1996); Foster v. State, 639 So.2d 1263, 1301 (Miss.1994), cert. denied 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221, reh'g denied, 514 U.S. 1123, 115 S.Ct. 1992, 131 L.Ed.2d 878 (1995); Evans v. State, 422 So.2d 737, 742 (Miss.1982). See Tuilaepa v. California, 512 U.S. 967, 979, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994)(circumstances of a particular offense [are] constitutionally indispensable parts of the process of inflicting the penalty of death); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); United States v. Flores, 63 F.3d 1342, 1372 (5th Cir.1995).

¶ 68. This claim is without merit.

X. THE LOWER COURT VIOLATED THE EIGHTH AMENDMENT AND STATE LAW BY INSTRUCTING THE JURY TO DISREGARD SYMPATHY IN REACHING ITS SENTENCING DECISION.

¶ 69. Sentencing instruction number one, contained the following sentence: “You should consider and weigh any aggravating and mitigating circumstances, as set forth later in this instruction, but you are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” Turner argues that this instruction violated state law in that it limited the jury's consideration of mitigation evidence, which in turn violated the Eighth and Fourteenth Amendments to the United States Constitution.

¶ 70. This Court on numerous occasions has held that a capital defendant is not entitled to a sympathy instruction. Like a mercy instruction, it results in a verdict based on “whim and caprice.” Holland v. State, 705 So.2d 307, 351–52 (Miss.1997); Lester v. State, 692 So.2d 755, 798 (Miss.1997); Jackson v. State, 684 So.2d 1213, 1239 (Miss.1996); Walker v. State, 671 So.2d 581, 612–13 (Miss.1995); Ballenger v. State, 667 So.2d 1242, 1264–65 (Miss.1995); Mack v. State, 650 So.2d 1289, 1330–31 (Miss.1994); Willie v. State, 585 So.2d 660, 677 (Miss.1991); Ladner v. State, 584 So.2d 743, 759–62 (Miss.1991). See Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993); Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Jenkins v. State, 607 So.2d 1171, 1181 (Miss.1992). The words “pity” and “mercy” are synonyms to “sympathy.” Jackson v. State, 684 So.2d 1213, 1239 (Miss.1996). An instruction that informs the jury “not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling,” is proper and not objectionable. Evans v. State, 725 So.2d 613, 1997 WL 562044,

¶ 357 (Miss.1997); Holland v. State, 705 So.2d 307, 351–52 (Miss.1997); Blue v. State, 674 So.2d 1184, 1224–25 (Miss.1996); Willie v. State, 585 So.2d 660, 667 (Miss.1991). This claim is, therefore, without merit.

XI. THE EIGHTH AMENDMENT AND STATE LAW WERE VIOLATED WHEN THE LOWER COURT ALLOWED IN ESSENCE BOTH THE ROBBERY AND PECUNIARY GAIN AGGRAVATING CIRCUMSTANCES TO BE CONSIDERED BY THE JURY.

¶ 71. In sentencing instruction number one, only one aggravating factor was offered for the jury's consideration: 1. The capital offense was committed for pecuniary gain during the course of an armed robbery. Turner contends that under Willie v. State, 585 So.2d 660, 680–81 (Miss.1991), this Court will not allow the jury “the opportunity to doubly weigh the commission of the underlying felony and the motive behind the underlying felony as separate aggravators.” Turner alleges that in the present case sentencing instruction number one violated the spirit, if not the exact letter of the law.

¶ 72. In Jenkins v. State, 607 So.2d 1171, 1182 (Miss.1992), this Court held, “in Willie, we clearly rejected the use of robbery and pecuniary gain aggravators finding that they were, in essence, just one.” See also Ladner v. State, 584 So.2d 743, 762 (Miss.1991); Willie v. State, 585 So.2d 660, 680–81 (Miss.1991). For these reasons, this issue is without merit.

XII. THE STATE'S MISCONDUCT IN THE CLOSING ARGUMENT WARRANTS REVERSAL OF THE DEATH SENTENCE.

¶ 73. During the prosecutor's closing argument at the sentencing phase, his last comment to the jury was as follows: And I ask that that (sic) is what you do and that you return into court and tell this defendant through your sentence that he is going to have to suffer death just like the two people that he killed and didn't give an opportunity to come to court.

¶ 74. This comment was objected to by Turner, and the objection was overruled. Turner argues that this remark violates the Fourteenth Amendment requirement for due process and a fair trial.

¶ 75. This Court has held that where the comment is “isolated” and “no other portion of the closing argument focused on the exercise of constitutional rights by the defendant, the comment [does] not warrant a reversal of the jury's verdict.” See Wells v. State, 698 So.2d 497, 511 (Miss.1997); Davis v. State, 684 So.2d 643, 654–55 (Miss.1996). Therefore, this issue is without merit. XIII. THE STATE IMPROPERLY ARGUED STATUTORY AGGRAVATING CIRCUMSTANCE WHEN IT HAD PREVIOUSLY ON THE RECORD ELECTED TO ONLY PROCEED ON THE PECUNIARY GAIN AGGRAVATOR AND HAD NOT SOUGHT TO PROCEED WITH THE HEINOUS, ATTROCIOUS AND CRUEL AGGRAVATOR IN THE SENTENCING INSTRUCTION.

¶ 76. Turner argues that early in the pre-trial proceedings, the State elected to pursue only the aggravating circumstance that the capital offense was committed for pecuniary gain during the course of an armed robbery. The sentencing instruction adopted by the trial court only listed the pecuniary gain aggravator. Turner alleges that, notwithstanding the State's singular election, the closing argument is inundated with references to other aggravating circumstances outside the parameters of the pecuniary gain argument. Turner opines that these comments made by the prosecutor during his closing argument during the sentencing stage had no connection whatsoever to the pecuniary gain aggravator submitted to the jury in the sentencing instruction.

¶ 77. The State, in its closing argument during the sentencing phase did refer to the gruesome nature of the killings. However, Turner made no objection to the State's argument during the first two instances. Where there is no contemporaneous objection made to closing arguments at trial, the issue cannot be raised for the first time on appeal. Mack v. State, 650 So.2d 1289 (Miss.1994); Chase v. State, 645 So.2d 829 (Miss.1994); Foster v. State, 639 So.2d 1263 (Miss.1994); Cole v. State, 525 So.2d 365 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g denied, 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989).

¶ 78. Following the third reference to the gruesomeness of the crime Turner raised an objection which the trial court overruled. The State argues that their comments were not objectionable. Gruesome was an apt and proper description of the circumstances of these slayings. This Court has held that the State can present the detailed circumstances of the murder committed by the defendant during the sentencing phase or during a resentencing phase even though the facts of the crime do not support one of the aggravating factors. Holland v. State, 705 So.2d 307, 327 (Miss.1997); Russell v. State, 670 So.2d 816, 832–35, 837–38 (Miss.1995). See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Thus, the State was entitled to argue these facts and draw inferences from the facts in order to prove that Turner actually killed, attempted to kill, intended the killing take place or that deadly force was contemplated. Miss.Code Ann. § 99–19–101(7)(Supp.1994).

¶ 79. In any event the jury was instructed on only one aggravating circumstance in this case. That factor was that the murders were committed while the defendant committed the capital offenses for pecuniary gain during the commission of armed robbery. The jury had no way under the instructions to base their sentence of death on any argument that the crime was “especially heinous” as it was not listed as an aggravating factor. There was no error, therefore, in overruling Turner's motion. This issue without merit.

PROPORTIONALITY REVIEW

¶ 80. Mississippi Code Annotated § 99–19–105(3) requires that a proportionality review be conducted by this Court when affirming a death sentence in a capital case. Section 99–19–105(3)(Supp.1998) 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. (emphasis added).

¶ 81. It does not appear that Turner's death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor. Neither does it appear, upon comparison to other factually similar cases where the death sentence was imposed, that the sentence of death is disproportionate in this case.

¶ 82. Having given individualized consideration to Turner and the crimes in the present case, this Court concludes that there is nothing about Turner or his crimes that would make the death penalty excessive or disproportionate in this case. See Blue v. State, 674 So.2d 1184, 1234–35 (Miss.1996) (death sentence proportionate where defendant abused drugs and alcohol at an early age, came from dysfunctional family, and had no positive role models at home); Foster v. State, 639 So.2d 1263, 1304 (Miss.1994) (death sentence proportionate where defendant was mentally impaired); Lanier v. State, 533 So.2d 473, 492 (Miss.1988) (death sentence was proportionate where defendant had been institutionalized twice for alcoholism and drug abuse); Neal v. State, 451 So.2d 743, 761 (Miss.1984) (death sentence affirmed where defendant had been institutionalized at young age, had learning and family difficulties, and was not loved or supervised at home); Evans v. State, 422 So.2d 737, 739 (Miss.1982) (death sentence was proportionate where defendant robbed and shot victim); Doss v. State, 709 So.2d 369 (Miss.1997) (death sentence was proportionate where defendant robbed and shot victim).

CONCLUSION

¶ 83. For these reasons, this Court affirms Turner's two convictions for capital murder and his two sentences of death and a new date for the execution of the sentence of death will be set according to the dictates of Miss.Code Ann. § 99–19–105(7)(Supp.1998).

¶ 84. CONVICTION OF CAPITAL MURDER (TWO COUNTS) AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99–19–105(7) (SUPP.1998) AND M.R.A.P. 41(a). PRATHER, C.J., SULLIVAN, P.J., BANKS, McRAE, JAMES L. ROBERTS, Jr., SMITH, MILLS and WALLER, JJ., CONCUR.

Turner v. State, 953 So.2d 1063 (Miss. 2007). (PCR)

Background: Defendant filed both counseled and pro se petitions for postconviction relief after his convictions on two counts of capital murder and his sentences of death were affirmed, 732 So.2d 937.

Holdings: The Supreme Court, en banc, Randolph, J., held that: (1) defense counsel did not render ineffective assistance by requesting that venue be transferred to another county; (2) defendant did not show that defense counsel rendered ineffective assistance by not raising a Batson challenge; (3) trial court acted within its discretion in overruling defendant's motion for severance; (4) prosecutor's guilt-phase closing comment about calling witnesses was a fair response to defendant's closing argument; (5) defense counsel did not render ineffective assistance with respect to presenting mitigation evidence at sentencing phase; and (6) sentences of death were not disproportionate. Petitions denied.

EN BANC.
RANDOLPH, Justice, for the Court.

¶ 1. Edwin Hart Turner (Turner) shot and killed Eddie Brooks and Everett Curry during robberies of two convenience stores in Carroll County. A jury first found him guilty of two counts of capital murder and subsequently found that Turner should be sentenced to death for both murders. Turner's appeal from those convictions and sentences was affirmed by this Court, and rehearing was denied. Turner v. State, 732 So.2d 937 (Miss.1999). The United States Supreme Court denied certiorari. Turner v. Mississippi, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999).

¶ 2. Both through counsel and pro se, Turner now asks this Court to grant him post-conviction relief pursuant to Miss.Code Ann. Sections 99-39-1, et seq. He raises numerous issues, primarily related to effectiveness of his attorneys at trial and on appeal. After a thorough review of the claims raised in the petitions, the Court finds that Turner failed to establish that his attorneys were ineffective and that the other claims raised in the petitions lack merit. Accordingly, the petitions are denied.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3. Turner's accomplice, Paul Murrell Stewart (Stewart), confessed his involvement in the robberies and murders. Stewart pled guilty to two counts of capital murder and received consecutive life sentences without parole. As part of his plea agreement, he agreed to testify. At trial, Stewart testified that he and Turner spent the night of December 12 and the early morning hours of December 13, 1997, driving around Carroll and Leflore Counties drinking beer and smoking marijuana. They decided to rob a convenience store. Turner was armed with a 6 millimeter rifle, and Stewart was armed with a .243 rifle. They drove to Mims One Stop on U.S. Highway 82 between Carrollton and Greenwood. After surveying the scene, they decided that the store was too crowded so they left and drove west to another convenience store on Highway 82. The second store, Mims Turkey Village Truck Stop, was occupied only by one clerk, Eddie Brooks. As Turner and Stewart entered the store, Turner ordered Brooks to get down on the floor. Before Brooks could comply, Turner shot him in the chest with the 6 millimeter rifle. However, neither Turner nor Stewart could open the cash register. Both fired their rifles into the cash register, but it still wouldn't open. Meantime, Brooks was still alive, lying wounded on the floor. Before they fled the scene, Turner placed the barrel of his rifle to Brooks's face and pulled the trigger. The second shot proved to be fatal.

¶ 4. After failing to obtain money from the cash register, Turner and Stewart decided to return to Mims One Stop. They parked behind the store and headed toward the door. Stewart went into the store and ordered the cashier to open the cash register. Turner encountered Everett Curry pumping gas in front of the store. While Stewart was inside robbing the store, Turner ordered Curry to the ground and took cash from Curry's wallet. As Curry laid on the ground pleading for his life, Turner unmercifully shot him in the head. Meanwhile, Stewart took approximately $400 from the cash register. The two fled the scene and returned to Turner's house. Curry was abandoned to die.

¶ 5. Based on their investigation of the robberies and killings, law enforcement officers suspected Turner in the murders. One witness had reported that one of the perpetrators had a white towel wrapped around his face. Turner was known to wrap a towel around his face to conceal his disfigurement from a botched suicide attempt. Turner was also a suspect in a motor vehicle violation and for fleeing police in Leflore County the night of the shootings. A warrant had been issued for his arrest on those charges.

¶ 6. Therefore, officers sought to question Turner. Turner allowed them into the house where two rifles were observed. In a car outside the house, officers found two items-a white plastic mask like one reported to be used in one of the robberies and a rifle shell. After obtaining a warrant, the officers seized a 6 millimeter rifle and a .243 rifle, along with several boxes of ammunition. The State's firearms expert later testified that the shell casings found at the scene of Brooks's murder came from the two rifles found in Turner's home. Additionally, Turner's fingerprints were found on the 6 millimeter rifle. Finally, the cashier at Mims One Stop identified Turner.

¶ 7. Turner was indicted for two counts of capital murder. The trial court granted the defense's motion for a transfer of venue. The case was tried in Forrest County. Turner was convicted of both counts. After hearing evidence of mitigation, the jury found that Turner had actually killed Brooks and Curry, that he had attempted to kill both victims, that he had intended that the killings take place, and that in both instances, he had contemplated that lethal force would be employed. Finally, the jury found that both killings were committed for pecuniary gain during the armed robberies. On both counts, the jury found that the mitigating factors did not outweigh the aggravating factors and that Turner should be sentenced to death.

ANALYSIS

¶ 8. In his petition for post-conviction relief, Turner raises ten issues. All but two of those claims are allegations of ineffective assistance of counsel. The issues raised in the petition are:

I. Venue transfer from Carroll County.

¶ 9. Turner retained two renowned attorneys, John Collette of Jackson and James K. Dukes of Hattiesburg. Collette continued to represent Turner in the direct appeal. Collette and Dukes enjoy a statewide reputation of respect and competency, and both are well seasoned trial attorneys with years of experience in representing criminal defendants.

¶ 10. The standard for determining if a criminal defendant received constitutionally effective counsel is well established. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his attorney's actions were deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984), citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052. The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.

Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ Stringer, 454 So.2d at 477, citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Defense counsel is presumed competent. Johnson v. State, 476 So.2d 1195, 1204 (Miss.1985)

Then, to determine the second prong of prejudice to the defense, the standard is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). This means a “probability sufficient to undermine the confidence in the outcome.” Id. ...

There is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991). Davis v. State, 743 So.2d 326, 334 (Miss.1999), citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996).

¶ 11. Turner first argues that his attorneys were ineffective in asking that venue be transferred from Carroll County. Upon the advice of counsel, Turner knowingly waived his right to be tried in Carroll County. In retrospect, Turner now maintains that Carroll County residents and potential jurors likely would have known about his troubled family history and his psychiatric treatments. His unpersuasive argument is that Carroll County jurors might have been more lenient than the jurors of Forrest County.

¶ 12. The only case cited by Turner is State v. Caldwell, 492 So.2d 575 (Miss.1986). In Caldwell, the defendant's death penalty trial was transferred to another county at the defendant's request. He was convicted and sentenced to death. Ultimately, the United States Supreme Court reversed the death sentence and remanded for a new sentencing hearing. Upon remand, Caldwell requested that the hearing be held in the original county. That request was denied by the trial judge. This Court found that Caldwell had the right to be tried in the county where the crime occurred and the fact that he had previously waived that right was not binding, after an appellate court later reversed for a new trial. Id. at 577.

¶ 13. Caldwell is distinguishable, as it did not involve issues of attorney effectiveness. The issue there was whether the defendant had the right to “undo” a previous request to transfer venue from where the crime was committed in a subsequent proceeding. The Court found that he still had the right to be tried in that county. Turner had the right to be tried in Carroll County. However, he waived that right and venue was properly transferred to Forrest County. In the absence of remand, the issue of where he would like to be tried is moot.

¶ 14. Turner asserts that his attorneys were ineffective in requesting that venue be transferred, but fails to offer proof that would demonstrate that the attorneys' performance was deficient. Any prejudice claimed by Turner is entirely hypothetical. Turner has not shown, and we ponder, how it could be shown, that a Carroll County jury would have found differently. See Cabello v. State, 524 So.2d 313, 317 (Miss.1988); Gilliard v. State, 462 So.2d 710, 714 (Miss.1985) (finding that petitioners had shown no prejudice in attorneys' failure to seek transfer of venue).

¶ 15. Additionally, Turner cannot overcome the presumption that, under the circumstances, seeking a change of venue was sound trial strategy. See Knox v. State, 901 So.2d 1257, 1262 (Miss.2005)(citing Stringer v. State, 454 So.2d 468, 477 (Miss.1984)). In Wilcher v. State, 863 So.2d 719, 750 (Miss.2003) this Court held that “defense counsel is under no duty to attempt to transfer venue and, therefore, the decision not to would fall within the realm of strategy. We find that, likewise, the decision to obtain a venue change is within the realm of strategy.” (Internal citations omitted).

¶ 16. Turner's attorneys filed a motion in which they alleged that there had been “a great deal of highly prejudicial and adverse pervasive publicity in this case, including both media and word of mouth publicity, making a fair trial impossible.” On the day after the murders, the Greenwood Commonwealth printed a story about the crimes with a picture of Turner in handcuffs after his arrest. The attorneys' decision that Turner was more likely to get a better result in another county was more than justified. The question is whether counsel's strategic advice resulted in such a breakdown in the adversarial process so that the conviction and sentence were rendered unreliable. Stringer v. State, 454 So.2d 468, 477 (Miss.1984). We find that there were valid strategic reasons for the attorneys' decision to request a change of venue from Carroll County. We find no deficiency in the performance of Turner's attorneys on that claim.

II. Failure to raise a Batson challenge.

¶ 17. Turner claims that during jury selection, his lawyers should have made a motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record is silent about the racial breakdown of the members of the jury pool. Turner's attorneys did file a pre-trial motion to prevent the State from excluding jurors based on the juror's race. Turner and his accomplice Stewart are white. The murder victims were African-American.

¶ 18. Once again, the attorneys' performance is presumed to be competent. Hansen v. State, 649 So.2d 1256, 1258 (Miss.1994), and there is a strong presumption that the attorneys' decisions are reasonable and strategic. Taylor v. State, 682 So.2d at 359, 363 (Miss.1996). Juror selection depends on strategic considerations. To overcome the presumption of competence, Turner is required to produce more than mere speculation of a Batson violation. Turner makes no specific claim as to any individual juror and he offers no specific questionable peremptory challenge utilized by the State. We find that Turner has neither shown that his attorneys were ineffective nor that he was prejudiced as a result of a hypothetical deficiency. Once again, he fails to satisfy either prong of the Strickland test.

¶ 19. Turner cites Triplett v. State, 666 So.2d 1356 (Miss.1995). In Triplett, the defendant was convicted of manslaughter. On appeal, this Court determined that his attorney had failed to investigate the evidence and was unfamiliar with the State's witnesses and the scene of the crime, had failed to file a motion to suppress the defendant's statement, had failed to properly challenge jurors for cause, had failed to submit an instruction entailing the defense's theory that the killing had been accidental, and failed to make a Batson motion. In sum, the Court found that the attorney had failed to perform “any act basic to the defense of the accused.” Id. at 1361. The Court concluded that the attorney was ineffective only after “considering the totality of his performance”. Id. at 1363.

¶ 20. Triplett is clearly distinguishable. There, the attorney was ill-prepared to go forward with trial and the defendant was prejudiced by his attorney's multiple deficiencies. The Court there found a “marked failure of counsel to fulfill his adversarial role” and under the totality of the circumstances, Triplett had not been afforded a fair trial. The failure to make a Batson motion was only one factor considered in the overall failure of the attorney to adequately represent his client. This Court has previously distinguished Triplett. See Le v. State, 913 So.2d 913, 953 (Miss.2005); Wilcher v. State, 863 So.2d 719, 741 (Miss.2004). Triplett is narrowly applied to cases alleging multiple instances of ineffective, deficient conduct by an attorney.

¶ 21. In Smith v. State, 877 So.2d 369, 383 (Miss.2004), this Court held that “[j]ury selection is generally a matter of trial strategy, and an attorney's decision not to make a Batson challenge does not amount to ineffective assistance of counsel absent a showing of prejudice to the defendant.” (citing Burns v. State, 813 So.2d 668, 676 (Miss.2002)).

¶ 22. Turner has shown no prejudice resulting from his attorneys' decision not to make a Batson challenge, even if we presume a basis existed for the exercise of such a challenge.

III. Failure to raise severance of the indictment on appeal.

¶ 23. Turner was charged in one indictment with two separate capital murders. Turner was charged with the murder of Eddie Brooks while he and his cohort attempted to rob the first convenience store and with the murder of Everett Curry during a robbery at the second convenience store. Turner's attorneys moved to sever the charges. The motion to sever was overruled. Turner alleges that his attorneys were ineffective in failing to appeal the trial judge's decision not to grant a severance.

¶ 24. Miss.Code Ann. § 99-7-2 provides that: (1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan. (2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding. Rule 7.07 of the Uniform Rules of Circuit and County Court Practice contains similar provisions.

¶ 25. At the motion hearing, the State argued that the two murders were part of a common scheme or plan. The State argued that on the night of the murders, Turner and Stewart decided to rob a store. They drove to the first store and left after deciding that it was too crowded. They drove straight to the second store which was only four miles away. There, Turner murdered Eddie Brooks. When they couldn't get the cash register open, they went directly back to the first store where Turner murdered Everette Curry. The same guns, masks, vehicle, and modus operandi were involved in the two murders, minutes apart.

¶ 26. The requirements for multiple counts in a single indictment were discussed at length by this Court in Eakes v. State, 665 So.2d 852 (Miss.1995). There, the Court held that: When a multi-count indictment has been returned and the defendant requests severance, a hearing should be held on the issue. Corley v. State, 584 So.2d 769, 772 (Miss.1991). ‘The State bears the burden of a prima facie showing that the offenses are within the language of Miss.Code Ann. § 99-7-2 (1994), which allows multi-count indictments.’ Corley, 584 So.2d at 772. If this burden is met by the State, the defense ‘may rebut by showing that the offenses were separate and distinct acts or transactions.’ Id. The trial court should consider the time period between the offenses, whether evidence proving each offense would be admissible to prove the other counts, and whether the offenses are interwoven. Id. ‘If this procedure is followed, this Court will give deference to the trial court's findings on review, employing the abuse of discretion standard.’ Corley, 584 So.2d at 772. Eakes, 665 So.2d at 861. See also McCarty v. State, 554 So.2d 909, 915-16 (Miss.1989).

¶ 27. At the hearing, the defense argued that the two incidents were separate. The State maintained that the murders were part of the same scheme. The murders took place during the execution of Turner and Stewart's common plan to commit robberies. The time frame involved was approximately twenty minutes. Much of the evidence at trial related to both crimes. Clearly, the two murders were interwoven. The trial court did not abuse its discretion in its decision not to sever the counts. Accordingly, the attorneys' failure to raise that issue on appeal is of no consequence.

¶ 28. Turner's reliance on Flowers v. State, 773 So.2d 309 (Miss.2000) is misplaced. There, this Court's reversal was based not on the failure to sever multiple counts, but rather on the State's introduction of evidence of other murders, while trying the defendant on a single indictment.

IV. Failure to raise on appeal the question of whether the district attorney's closing argument amounted to an improper comment on the defendant's failure to testify and call witnesses.

¶ 29. Turner called no witnesses during the guilt phase of the trial. In closing argument, Turner's attorney argued that the case boiled down to the credibility of Stewart. Turner also argued that the State should have called more witnesses, including people who were at the second store during the Curry killing. During his closing argument, the District Attorney responded: We put on 17 witnesses. On one hand the Defense counsel says we shouldn't have put on but one. On the other hand, they say we should have put on more. We put on the witnesses that we thought y'all needed to hear to make your decision. We could have probably put on forty witnesses, but why? We wanted to make sure that you had the facts that you needed to have. And one thing I want to make sure that y'all understand; both sides have the right to subpoena witnesses, and you can bet if there was anything that was inconsistent, they would have put these other witnesses on. They had the right to do that. At that time, the defense objected, asserting that the prosecutor's argument amounted to a comment on the defendant's failure to testify and impinged on the defendant's right to remain silent. The trial judge overruled the objection and instructed the District Attorney to stick to the evidence. Turner claims that the prosecutor's statement was an improper comment on Turner's decision not to testify. Turner maintains that this issue should have been raised on direct appeal and that his attorney on appeal was ineffective for failing to raise that claim.

¶ 30. Turner cites Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), Griffin v. State, 557 So.2d 542 (Miss.1990), and other cases which hold that a defendant's Fifth Amendment right against self-incrimination is violated if the prosecutor makes a comment about or alludes to the defendant's failure to testify at trial. This Court has repeatedly held that attorneys on both sides are allowed wide latitude in their closing arguments and that there is an obvious difference between a comment on the defendant's failure to testify and a comment on defendant's failure to put on a credible defense. Underwood v. State, 919 So.2d 931, 939-40 (Miss.2005) (citing Howell v. State, 860 So.2d 704, 751-52 (Miss.2003)). The prosecutor's comment here was a fair response to the defense's claim that the State failed to call some witnesses who could have been helpful to the jury. As in Underwood, the argument did not specifically mention the defendant or refer to his failure to testify. As the closing argument was not improper, the appellate attorney was not required to raise that issue on appeal. We find that the attorney was not ineffective in failing to raise this issue on direct appeal.

V. Presentation of the lesser-included offense issue on appeal.

¶ 31. At trial, the defense offered jury instructions on the lesser-included offense of simple murder. The State objected on the basis that there was no evidentiary basis for a finding of simple murder on either count. The trial court refused the instruction. On direct appeal, Turner argued that the trial court erred in refusing a simple murder instruction. This Court considered that issue and analyzed the criteria for giving a lesser-included offense instruction. The Court found that: no error was committed by the trial judge in denying the lesser included offense charge of simple murder. The facts from the record simply do not support that theory of the case. The testimony of Stewart-the same testimony Turner relies upon as the basis of his argument for the lesser included offense of simple murder instruction-clearly details how the intent and purpose of Turner in the early morning hours of December 13, 1995, was to rob a store. This testimony from Stewart as to intent was uncontradicted by any other testimony. Therefore, taking this uncontradicted testimony as true, it was Turner's specific intent throughout the events of those early morning hours, up to and including the times of both murders, to commit armed robbery. Turner, 732 So.2d at 949.

¶ 32. Turner argues that his attorney was ineffective in failing to argue in the appellant's reply brief that Stewart's testimony was subject to extensive cross-examination and that the testimony was not uncontradicted. Whether Turner was entitled to a lesser-included offense instruction has been addressed and is now barred from further consideration. Miss.Code Ann. § 99-39-21(2); Lockett v. State, 614 So.2d 888, 893 (Miss.1992).

¶ 33. Turner now asserts that this Court would have reached a different result if his attorney had properly addressed it in the reply brief. The claim, in essence, is that the attorney should have argued in the reply brief that Stewart was cross-examined extensively and that his testimony was not “uncontradicted.” We find this claim to be without merit.

¶ 34. This plea relies on a false presumption, i.e., this Court failed to fully review Stewart's testimony, including his cross-examination. All testimony was reviewed in detail. No contradictions were found then, and, after a second review, we again find that Stewart's testimony was uncontradicted. Turner alludes to no specific testimony where Stewart said anything other than that he and Turner planned to rob a store with rifles, and that Curry and Stewart were murdered in furtherance of that armed robbery plan. No lesser included offense instruction was warranted. No amount of argument could change that fact.

VI. Evidence of mitigation.

¶ 35. Turner claims that his attorneys failed to present an adequate case in the mitigation phase of his trial. The defense called four witnesses. The petitioner claims that several more witnesses should have been called; and that the witnesses who did testify should have been better prepared.

¶ 36. Generally, an attorney's decision to call certain witnesses and ask certain questions “falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Bell v. State, 879 So.2d 423, 434 (Miss.2004) (quoting Jackson v. State, 815 So.2d 1196, 1200 (Miss.2002)). There is no absolute requirement to put on mitigation witnesses, and the “failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel.” Williams v. State, 722 So.2d 447, 450 (Miss.1998), citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997). The fact that an attorney's strategic choices did not result in a good outcome is not in and of itself definitive evidence of ineffective assistance of counsel. “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003) (collecting cases).

¶ 37. Further, this Court has held that: Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the “constitutionally protected independence of counsel” at the heart of Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. We base our conclusion on the much more limited principle that “strategic choices made after less than complete investigation are reasonable” only to the extent that “reasonable professional judgments support the limitations on investigation.” Id., at 690-691, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. A decision not to investigate thus “must be directly assessed for reasonableness in all the circumstances.” Id. at 691, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Wiggins, 539 U.S. at 533, 123 S.Ct. 2527, 156 L.Ed.2d 471. Under Wiggins, counsel may make strategic decisions to introduce, pursue or ignore certain evidence, but these decisions may amount to ineffective assistance if made based on an inadequate or unreasonable investigation. Byrom v. State, 927 So.2d 709, 716-17 (Miss.2006).

¶ 38. Of the witnesses the defense called in the penalty phase, three were family members who testified about the difficult childhood Turner had experienced. Their testimony included the following: (1) Turner's father was killed in an accident when Turner was twelve years old; (2) Turner's mother drank excessively; (3) and (4) she and her second husband physically and verbally mistreated Turner and his brother, and neglected them badly; (5) Turner's suicide attempts; (6) his disfigurement caused by shooting himself in the jaw; (7) Turner had been institutionalized for psychiatric problems on several occasions without benefit; (8) Turner had been a loving child; (9) he had made good grades; and (10) he had always been kind and respectful to family members.

¶ 39. Finally, the defense called Dr. Rodrigo Galvez, a psychiatrist. Dr. Galvez testified that he had reviewed Turner's voluminous psychiatric records and concluded that Turner had been involuntarily committed to psychiatric hospitals on three occasions. He was diagnosed as suffering from major depression, borderline personality disorder and substance abuse problems. Prozac was prescribed for the depression, but Dr. Galvez testified that the personality disorder had never been treated. Dr. Galvez attributed Turner's problems to Turner's parents and to society in general. Dr. Galvez opined that as a result of Turner's raising and his psychiatric problems, Turner was left with inadequate “moral brakes” to control his behavior. Coupled with alcohol and drug use, the lack of “brakes” led Turner into serious crimes. Dr. Galvez testified that, in his opinion, Turner never got the psychiatric care that he really needed.

¶ 40. Turner asserts that defense counsel failed to perform more than a cursory investigation of Turner's background prior to presenting the mitigation case. However, the record reveals that the defense interviewed numerous witnesses and reviewed Turner's extensive medical and psychiatric files. We find no evidence that defense counsel's pre-trial investigation was insufficient.

¶ 41. Turner has submitted affidavits from numerous family members who did not testify at trial. Much of the proposed testimony in those affidavits is repetitive of what was presented to the jury. The jury received testimony about Turner's mother's alcohol problems and the abuse suffered by Turner as a child. Further testimony about Turner's difficult childhood, his suicide attempts, his disfigurement, or the death of his father would only have been cumulative. We find that the lawyers were well within their discretion not to call these additional witnesses.

¶ 42. After a review of the remaining non-cumulative testimony, we find that Turner has failed to show any deficiency in his attorneys' performance. Claims that additional witnesses should have been called are disfavored. See Leatherwood v. State, 473 So.2d 964, 970 (Miss.1985). The record reveals that the attorneys interviewed many family members in addition to those called at trial. Those who were deemed to be the most effective witnesses by counsel were called and testified for Turner. The decision not to call the remaining witnesses falls within the range of trial strategy, and we find that the attorneys were not ineffective in making that choice.

¶ 43. Under the totality of the circumstances here, the Court finds that Turner has not shown that the attorneys were ineffective.

VII. Failure to object to allegations of prior bad acts brought out in cross-examination of mitigation witnesses.

¶ 44. Turner argues that his attorneys were ineffective in the presentation of the mitigation case by “opening the door” to evidence of prior instances of bad conduct. The State cross-examined Turner's mitigation witnesses, who had testified that Turner had been a good child, by inquiring whether they knew that Turner had assaulted his mother and stepfather. On direct appeal, this Court found that Turner placed his character into evidence by calling witnesses who testified that he had been a good child. The Court found that the State was entitled to rebut that testimony by presenting evidence that Turner was the abuser and not the abused, at least on a couple of occasions. Turner, 732 So.2d at 950.

¶ 45. Turner maintains that his attorneys could have presented the evidence of abuse without opening the door to the prior bad acts testimony. He cites Woodward v. State, 635 So.2d 805 (Miss.1993). In Woodward, the Court found that the defendant's attorneys had been ineffective in their presentation of the mitigation case. The defense called a psychiatrist to testify about Woodward's mental illness. Out of fear that they would open the door to damaging character evidence, the defense limited the psychiatrist's testimony to the results of mental testing. The psychiatrist was not allowed to provide critical information about Woodward's history which apparently contributed to his mental problems which had been revealed in the psychiatrist's examination of Woodward. The Court held that counsel had improperly limited the testimony and that Woodward had been prejudiced as a result.

¶ 46. Turner claims that Woodward is indistinguishable. We find otherwise. Woodward holds that the attorneys who called the psychiatrist should have allowed him to give a complete picture of the results of his examination of the defendant including critical background history. That failure, coupled with an inadequate closing argument that failed to address the statutory mitigating factors, amounted to ineffective assistance. Here, there is no allegation that Turner's general background was not provided to the jury. The defense called the family members and Dr. Galvez who testified extensively about Turner's history. Further, there is no claim involving inadequate closing argument.

¶ 47. Turner argues that counsel could have put on the good character evidence without risking cross-examination about the bad character proof. He offers no authority to explain how counsel could have accomplished that. On one hand, Turner claims that his attorneys should have put on more character evidence witnesses, yet on the other, he argues that his attorneys were ineffective in failing to limit character evidence, so as to preclude opening the door to the bad acts questioning. We find no evidence in the record that counsel were ineffective in their presentation of the case in mitigation.

VIII. Failure to move for a mistrial when the district attorney questioned mitigation witnesses about alleged bad conduct of the defendant.

¶ 48. Turner maintains that his attorneys should have requested a mistrial when the district attorney asked defense witnesses if they were aware of allegations that Turner had beaten his mother and threatened his stepfather. Turner argues that the questioning was improper in that the State never offered proof that the damaging allegations were true. He claims that counsel were ineffective in failing to cite Flowers v. State, 773 So.2d 309 (Miss.2000). The State points out that the Flowers decision was handed down after Turner's case was decided by this Court. Citing Flowers, therefore, would have been impossible.

¶ 49. We again note that this Court dealt with the same issue on direct appeal. The Court found that Turner had put his character into play by introducing evidence that he was a good and normal child. The Court found that the State was authorized to rebut that testimony with evidence of bad conduct. Turner, 732 So.2d at 950. As the Court has already found that the questions were permissible, Turner cannot show that his attorneys were ineffective in failing to seek a mistrial on that issue.

IX. The death sentence imposed by the jury was based in part on facts not specifically found by the jury.

¶ 50. The State chose to present to the jury one aggravating factor justifying the death penalty. The State asked the jury to return a sentence of death if it found that the murders were committed for pecuniary gain and if the aggravating factors outweighed the evidence in mitigation. The State did not ask that the jury be instructed on other statutory aggravating factor. However, the State did argue in its closing statement in the penalty phase that the killings were “brutal and gruesome”. Turner argues that the State's argument about the brutality of the crime allowed the jury to return its verdict on evidence outside the pecuniary gain aggravating factor. Turner claims that the sentencing was therefore based on proof outside that found by the jury and that the sentence must be voided under the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Turner's direct appeal was decided in 1999 before the decisions in Apprendi, Ring and Blakely were handed down. The State argues that no federal court has applied Apprendi and its progeny retroactively. We conclude that Apprendi, Ring and Blakely do not apply here.

¶ 51. Turner also claims that the State's arguments about the brutality of the offense were prohibited by various Mississippi decisions. See Walker v. State, 740 So.2d 873 (Miss.1999); Balfour v. State, 598 So.2d 731 (Miss.1992). This issue was decided on direct appeal. The Court determined that the State was entitled to “present the detailed circumstances of the murder committed by the defendant” and that the State could “argue these facts and draw inferences from the facts in order to prove that Turner actually killed, attempted to kill, intended the killing take place or that deadly force was contemplated.” Turner, 732 So.2d at 955-56. Accordingly, this issue is without merit.

X. Proportionality review in the direct appeal.

¶ 52. Turner claims that this Court's review of the proportionality of the death sentence on direct appeal was inadequate. He claims that few other Mississippi death penalty cases involve circumstances in which the jury was asked to find only one statutory aggravating factor. Miss.Code Ann. § 99-19-105(3) requires this Court to review the proportionality of each death sentence before that sentence can be affirmed. In the direct appeal, this Court conducted the statutorily mandated proportionality review and found as follows: It does not appear that Turner's death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor. Neither does it appear, upon comparison to other factually similar cases where the death sentence was imposed, that the sentence of death is disproportionate in this case. Having given individualized consideration to Turner and the crimes in the present case, this Court concludes that there is nothing about Turner or his crimes that would make the death penalty excessive or disproportionate in this case. Turner, 732 So.2d at 956. To the extent that Turner asks this Court to analyze the proportionality of the sentence of death again, the Court finds that that issue has already been decided and is procedurally barred. In post-conviction relief proceedings, “[t]he doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.” Miss.Code Ann. § 99-39-21. Notwithstanding the procedural bar, the Court once again finds that the sentence imposed is not disproportionate. In his course of robbing two stores, Turner killed two men without provocation. Both men were shot in the head at close range during robberies. The jury's finding that the murders were done for pecuniary gain is unequivocal. A jury, properly instructed after hearing the evidence, freely determined that Turner's punishment should be death. A review of relevant Supreme Court decisions in other capital cases confirms that the punishment here is proportionate.

CONCLUSION

¶ 53. Turner murdered Eddie Brooks and Everett Curry during the course of two robberies. After considering the evidence against him and the competing mitigating and aggravating factors, a jury determined that he should be put to death. The Court finds no error requiring alteration of that judgment. Turner is twice guilty of capital murder. He has not demonstrated any deficient performance by his trial or appellate attorneys. The Court finds that Turner is not entitled to seek post-conviction relief. Therefore, Turner's request for post-conviction relief is denied.

¶ 54. THE PETITION FOR POST-CONVICTION RELIEF AND THE PRO SE PETITION FOR POST-CONVICTION RELIEF ARE DENIED.

Turner v. Epps, Slip Copy, 2010 WL 653880 (N.D. Miss. 2010) (Habeas)

W. ALLEN PEPPER, JR., District Judge.

Edwin Hart Turner is an inmate confined to the Mississippi Department of Corrections who has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the otherwise final capital murder convictions and two sentences of death imposed on him by the Circuit Court of Forrest County, Mississippi, sitting on change of venue from Carroll County, Mississippi. Having considered the alleged circumstances, the cited authorities, and the record in this matter, the Court DENIES the application for the reasons set forth below.

Applicable Law

This petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (AEDPA applies to all federal habeas applications filed on or after April 24, 1996). Pursuant to the AEDPA's scope of review, habeas corpus relief cannot be granted in connection with any claim adjudicated on the merits in State court proceedings unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); and 28 U.S.C. § 2254(d)(1) & (2). The factual findings of the State court are presumed correct, and Petitioner bears the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

The “contrary to” and “unreasonable application” clauses of 28 U.S.C. § 2254(d) have been held to have independent meanings. See, e.g., Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Federal habeas relief may be granted under the “contrary to” clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08; see also Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). Whether a decision is “unreasonable” is an objective inquiry, and it does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.”); Williams, 529 U.S. at 410-11; Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir.2004) (habeas relief merited where state decision both incorrect and objectively unreasonable).

A petitioner must exhaust his remedies in State court prior to seeking federal habeas relief. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.2001); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001); 28 U.S.C. § 2254(b)(1). A petitioner has exhausted his claim when he has fairly presented the claim for which he seeks relief to the highest court of the State. See Morris v. Dretke, 379 F.3d 199, 204 (5th Cir.2004). The federal claims presented for habeas relief must be the substantial equivalent of those presented to the State court in order to satisfy the requirement of fair presentation. See Morris, 379 F.3d at 204-05; Fisher v. Texas, 169 F.3d 295, 302 (5th Cir.1999). A claim is not exhausted for purposes of federal habeas review if a petitioner presents the federal court with different legal theories or factual claims from those pursued in State court. See Wilder, 274 F.3d at 259 (“[W]here petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement.”); Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001). A federal court may not grant federal habeas relief on an unexhausted claim, but relief may be denied on an unexhausted claim. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); see also Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir.1999).

Where a petitioner fails to exhaust his State remedies, but it is clear that the State court to which he would return to exhaust the claim would find the claim procedurally barred, the claim is procedurally defaulted for purposes of federal habeas corpus relief. See, e.g., Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001); Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.1995). Likewise barred from federal habeas review are claims that the State court held procedurally barred on review on the basis of independent and adequate State law grounds. See, e.g., Coleman, 501 U.S. at 729-30 (“The doctrine applies to bar federal habeas claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests upon independent and adequate state procedural grounds.”); Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In order to receive federal habeas review of procedurally defaulted claims, Petitioner must demonstrate “ ‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’ ” Coleman, 501 U.S. at 749-50 (internal citations omitted).

In order to demonstrate cause, a petitioner must show “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). In some instances, counsel's ineffectiveness may suffice to establish “cause” for failure to exhaust a claim on appeal, but the claim of ineffectiveness must itself be brought as an independent claim and exhausted in state court. See Edwards v. Carpenter, 529 U.S. 446, 452, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Prejudice may be demonstrated by showing that the errors “worked to [the petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Carrier, 477 U.S. at 494 (internal quotations omitted). If a petitioner is unable to demonstrate cause and prejudice, he may obtain review of his claim by demonstrating that the application of the procedural bar would result in a miscarriage of justice because he is actually innocent of the crime. See House v. Bell, 547 U.S. 518, 537-38, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). An allegation of actual innocence requires that a petitioner support his claim “with new, reliable evidence that was not presented at trial and show that it was more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Fairman v. Anderson, 188 F.3d 635, 655 (5th Cir.1999) (citing Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). In terms of the sentencing phase, “miscarriage of justice” also means that, but for constitutional error, no reasonable juror would have found Petitioner eligible for the death penalty under the applicable state law. Sawyer v. Whitley, 505 U.S. 335, 336 (1992).

Where a State court holds a claim barred on independent and adequate State law grounds and reaches the merits of the claim in the alternative, the bar imposed by the State court is not vitiated. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Hughes v. Dretke, 412 F.3d 582, 592-93 (5th Cir.2005) (alternate holding on merits by state court did not preclude imposition of bar on federal habeas review for petitioner's failure to contemporaneously object on federal constitutional grounds in state court); Thacker v. Dretke, 396 F.3d 607, 614 (5th Cir.2005) (procedural bar imposed for petitioner's failure to contemporaneously object and preserve claim for review not circumvented by State court's alternative holding that constitutional claim lacked merit). Finally, the Court notes that the AEDPA imposes the burden of obtaining an evidentiary hearing in federal court on the petitioner, and it limits the circumstances in which an evidentiary hearing may be granted for those petitioners who fail to diligently seek to establish the factual bases for their claims in state court. See Williams, 529 U.S. at 433-34 (prisoners at fault for deficiency in state court record must satisfy heightened standard to obtain evidentiary hearing); Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir.2000); McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998); 28 U.S.C. § 2254(e)(2). Even where an evidentiary hearing is not precluded due to a petitioner's lack of diligence, the decision to grant an evidentiary hearing is discretionary. See, e.g., Clark, 202 F.3d at 765-66. In order to be entitled to an evidentiary hearing in federal court, a petitioner must demonstrate that he was denied a “full and fair hearing” in State court and persuade the Court that his allegations, if true, would warrant relief. Id. at 766 (citations omitted).

Facts and Procedural History

On the evening of December 12, 1995, Edwin Hart Turner and Paul Murrell Stewart were drinking beer and smoking marijuana while driving around in Stewart's automobile. When the vehicle became stuck in a ditch, Petitioner and Stewart abandoned the vehicle and walked to the nearby home of Doyle Carpenter, a friend of Petitioner's. After Carpenter was unsuccessful in helping the pair free the vehicle from the ditch, he took them to Petitioner's home on Spring Lake. Petitioner and Stewart then decided to rob some stores in Carroll County, Mississippi. They first drove to Mims Truck Stop and, finding it too crowded, left and drove to Mims Turkey Village Truck Stop, some four miles away. At approximately 2:00 a.m. on December 13, 1995, the pair entered Mims Turkey Village Truck Stop wearing masks and carrying rifles. Petitioner carried a 6mm rifle, while Stewart carried a .243 rifle. After walking into the store, Petitioner shot the store clerk, Eddie Brooks, in the chest, and he fell to the floor behind the counter. Petitioner and Stewart tried unsuccessfully to open the cash register. Petitioner struck the register with the butt of his gun, and then both men shot the cash register. When the register still did not open, Petitioner placed the barrel of his rifle inches away from Mr. Brooks' head and shot him.

Petitioner and Turner then drove back to Mims One Stop. Everett Curry was outside of the store pumping gas, and several people were inside of the store. While Stewart went inside of the store, Petitioner ordered Curry to the ground and shot him in the head. Testimony was offered at trial to support a conclusion that Petitioner also robbed Curry of the money in his wallet. Stewart, inside of the store, grabbed some of the store's cash after the clerk opened the register and put the money into a paper bag. Petitioner came into the store while pointing his gun at the people inside, and Stewart stated at trial that he told Petitioner there was no need to kill anyone else because he had the money. The pair left the store and returned to Petitioner's house, putting the guns inside. Stewart testified that he counted the money, which the pair split, while Petitioner prepared something to eat. After eating, they went to sleep. They awoke to law enforcement officers knocking on the door the next morning.

A 6mm and .243 rifle were discovered in Petitioner's home, and the State's firearms expert matched the shell casings found at the scene of Brooks' murder to the rifles in Petitioner's home. Petitioner's fingerprints were also found on the 6 mm rifle, and the hockey mask Stewart had been wearing during the robberies was found in the backseat of Petitioner's car. Petitioner and Stewart were arrested and taken to the Carroll County Sheriff's Department. Stewart gave a full confession. He pled guilty to two counts of capital murder and received consecutive life sentences without parole. As part of his plea, he agreed to testify against Petitioner. Petitioner's trial on two counts of capital murder while engaged in armed robbery began on February 10, 1997, with John Collette and James K. Dukes serving as retained trial counsel. The jury found Petitioner guilty of both counts of capital murder and imposed the death penalty. Petitioner's convictions and death sentences were affirmed on direct appeal. Turner v. State, 732 So.2d 937 (Miss.1999), cert. denied, Turner v. Mississippi, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999) (“ Turner I ”). Petitioner sought post-conviction relief, which was also denied. Turner v. State, 953 So.2d 1063 (Miss.2007) (“ Turner II ”). The instant petition followed.FN1

FN1. The Court notes that the claims raised in the petition in this cause differ somewhat from the claims briefed in the memorandum of law filed in support of the petition. This Court considers Petitioner's claims as they were briefed in his memorandum. Petitioner states that his memorandum “sets forth the factual and legal arguments for granting any or all of the fifteen claims for relief pled in the Petition. The memorandum also discusses two claims that have not heretofore been pled, but which this Court may consider in the first instance.” (Pet. Memo 2). The Court notes that issues raised in the petition but not briefed are considered abandoned by this Court. See, e.g., Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993).

I. Ineffective Assistance of Counsel

Petitioner here claims, as he did in State court, that he received the ineffective assistance of counsel at various stages of his trial and direct appeal. A criminal defendant has the constitutional right to effective counsel, both at trial and on direct appeal. U.S. Const. amend. VI, XIV; Strickland v. Washington, 466 U.S. 688, 688 (1984); Evitts v. Lucey, 469 U.S. 387, 393-95, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In order to establish that he was denied effective counsel, Petitioner must show that his attorney rendered constitutionally deficient performance that actually prejudiced him. Strickland v. Washington, 466 U.S. at 687. This requires Petitioner to show (1) that counsel's performance fell below an objective standard of reasonableness in light of the prevailing professional norms, and (2) that, but for counsel's deficient performance, the result of the proceeding would have been different. See id. at 688, 695. Judicial scrutiny of counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct fell within the range of reasonable professional assistance or sound trial strategy. See id. at 668, 688-89. Both the “deficiency” and the “prejudice” prongs must be satisfied, or it cannot be said that the adversarial process was so lacking that it rendered an unreliable result, thereby denying Petitioner a fair trial. See id. at 687. On habeas review, the issue is whether the Strickland decision reached in State court was contrary to or an unreasonable application of clearly established federal law. See Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.2003) (holding that “the test is whether the state court's decision-that [the petitioner] did not make the Strickland-showing-was contrary to, or an unreasonable application of, the standards, provided by the clearly established federal law ...”). The Court notes that Petitioner retained the services of John Collette and James K. Dukes, men called by the Mississippi Supreme Court as “renowned attorneys” who “enjoy a statement reputation of respect and competency,” to serve as his trial counsel. Turner II, 953 So.2d at 1067. John Collette also served as counsel for Petitioner during his direct appeal. See id.

A. Ineffective Assistance of Counsel Pre-Trial
1. Waiver of right to maintain venue

Before trial, defense counsel moved for a change of venue from Carroll County, citing the “great deal of highly prejudicial and adverse pervasive publicity in this case, including both media and word of mouth publicity, making a fair trial impossible in this district.” (SCP vol. 1, 89).FN2 The motion was granted, and venue was changed to Forrest County, Mississippi. In his habeas petition, Petitioner argues that trial counsel was ineffective in agreeing with the State for the change of venue, as his family was long-established and well-known in Carroll County. He maintains that counsel failed to fulfill their duty of considering the reduced prejudices of the citizens of Carroll County, and that he had the right to be tried in the venue where the crime occurred. Citing State v. Caldwell, 492 So.2d 575 (Miss.1986), he argues that he had the absolute right under State law to be tried where the crime occurred, and that Petitioner's wavier of that right was involuntary due to counsel's ineffectiveness.

FN2. The transcript in this case is comprised of fifteen consecutively numbered volumes. Volumes one through five are State court papers, hereinafter designated as “SCP vol. ----, ----.” Volumes six through fourteen contain the trial transcript, hereinafter designated as “Trial Tr. vol. ----, ----.” Volume fifteen is the “Report of the Trial Judge Where Death Penalty Imposed.”

On post-conviction review, the Mississippi Supreme Court noted that Petitioner knowingly waived his right to be tried in Carroll County upon the advice of his trial counsel. Turner II, 953 So.2d at 1068. The court found his argument that Carroll County jurors might have been more familiar to his troubled family history and psychiatric problems and thus more lenient unpersuasive. See id. The court noted that in State v. Caldwell, 492 So.2d 575 (Miss.1986), the issue was whether a defendant had the right to “undo” his prior venue transfer request in a subsequent proceeding. See id. Petitioner, however, waived his right to be tried in Carroll County, and “[i]n the absence of remand, the issue of where he would like to be tried is moot.” See id. The court found Petitioner's claims of prejudice by counsel's actions “entirely hypothetical” and found that he failed to demonstrate prejudice. See id. at 1068-69. The court also found that Petitioner failed to overcome the presumption that the decision to change venue was a sound trial strategy, as there was “a great deal” of prejudicial and adverse publicity in the case. See id. at 1069. As valid reasons existed for the attorneys' decision to request a change of venue, the court found no deficiency in counsel's performance. See id.

Petitioner argues that controlling precedent requires that decisions such as that of changing venue require “sufficient awareness of the relevant circumstances and likely consequences.” (citing McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). Petitioner maintains that an analysis involving counsel's advice to waive local venue is analogous to the issue of counsel's advice in waiving a trial by jury, which is governed by precedent as set forth in McMann v. Richardson, 397 U.S. 759, 790, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Petitioner maintains that he is entitled to habeas relief in light of the controlling precedent, as the appropriate inquiry for the Mississippi Supreme Court's prejudice determination should have been whether, had he been competently advised, Petitioner would have decided not to waive his right to be tried in the local venue. He also argues that counsel performed deficiently, as he did not investigate prior to advising Petitioner that a change of venue was in his best interests.

Petitioner has not demonstrated that the rejection of his Strickland claim was contrary to or involved an unreasonable application of clearly established federal law. At a pre-trial hearing on August 6, 1996, the trial court inquired whether Petitioner understood the change of venue motion that had been filed on his behalf and whether he had any objection to the motion. ( See Trial Tr. vol. 6, 25-26). In support of the motion, counsel argued that the pervasive publicity, both by media and word of mouth, made a fair trial impossible in Carroll County. ( See SCP vol. 1, 89). Petitioner stated he understood the motion and had no objection. ( See Trial Tr. vol. 6, 25-26). In Faraga v. State, 514 So.2d 295, 306-07 (Miss.1987), the Mississippi Supreme Court stated that whether to change venue was a strategic decision that required the attorney to “weigh the odds” in such a manner that it would be second-guessed only in extreme circumstances. Petitioner has not demonstrated that it was unreasonable for the Mississippi Supreme Court to find counsel had not been deficient in seeking a change of venue. Moreover, the federal constitutional right at issue is that of a fair trial by impartial jurors. U.S. Const. Amend. VI. The Fifth Circuit has determined that the Sixth Amendment's venue provision does not apply to the states. See Martin v. Beto, 397 F.2d 741, 748 (5th Cir.1968). Counsel's tactical decision did not lessen or obscure any constitutional safeguard for Petitioner, and his argument of prejudice is hypothetical. See Cook v. Morrill, 783 F.2d 593, 596 (5th Cir.1986). Petitioner has therefore also failed to demonstrate that the rejection of this claim on prejudice grounds was unreasonable, and this claim shall be dismissed.

2. Failure to raise Batson objection

Petitioner maintains that his trial counsel rendered ineffective assistance in failing to object to any of the State's peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) or otherwise make a record of the race of the venire members. He argues that as trial counsel filed a pre-trial motion to prevent the prosecution from the discriminatory use of peremptory challenges, counsel did not make a strategic decision to forego challenging the prosecution's strikes. Moreover, he argues that the absence of a record on the race of the venire members establishes ineffective assistance by appellate counsel, as well. Petitioner maintains that the rejection of this claim during State court proceedings is an unreasonable application of clearly established Supreme Court precedent, as well as an unreasonable determination of facts presented to the State court.

On post-conviction review, the Mississippi Supreme Court noted that the racial makeup of the members of the jury pool was not part of the record, though it noted that Petitioner and his accomplice are white and that the murder victims were both black. See Turner II, 953 So.2d at 1069. The court noted the presumption of competency afforded the attorneys' performance, and that “Turner makes no specific claim as to any individual juror and he offers no specific questionable peremptory challenge utilized by the State.” See id. The court found no prejudice as a result of Petitioner's claimed “hypothetical deficiency,” and that he failed to satisfy either prong of Strickland. See id. at 1069-70.

On post-conviction review, Petitioner sought a Batson hearing, but he did not avail himself to procedures to reconstruct the racial makeup of the venire or the strikes exercised at trial. ( See PCR Pet. at 5, ¶ 18). Respondents argue, and this Court agrees, that Petitioner's failure to factually develop his claim in State court precludes the Court from now holding a hearing on the claim. See 28 U.S.C. § 2254(e)(2). Petitioner did not develop this claim in State court and cannot here seek further development. See Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). The Court otherwise notes that the fact that counsel did not make a record on the race of the jury panel is not per se ineffective assistance of counsel. See also Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.2001) ( “[E]rrors of tactics or omission do not necessarily mean that counsel has functioned in a constitutionally deficient manner.”). Petitioner bears the burden of proving racial discrimination in jury selection, and he must make out a prima facie case of racial discrimination to shift the burden to the State to provide a race-neutral explanation for the strike. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). As Petitioner cannot establish that any minority venireperson was struck by the State, much less that they were struck with a discriminatory intent, he cannot establish ineffective assistance of counsel on this conclusory argument. See Medellin v. Dretke, 371 F.3d 270, 278 (5th Cir.2004) (reasoning that where underlying Batson claim necessarily fails, so does the ineffectiveness claim based upon the alleged error); see also Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.2000). Petitioner has not demonstrated that he is entitled to relief on the basis of the State court's adjudication of this claim, and it shall be dismissed.

3. Failure to press severance issue

Petitioner was charged with the murder of Eddie Brooks and Everett Curry in conjunction with two separate armed robberies at two separate convenience stores. At trial, defense counsel moved to sever the multi-count indictment against Petitioner, and the trial court denied the motion. Petitioner maintains that counsel rendered ineffective assistance in not pursuing the claim on direct appeal, as the two counts were not “based on the same acts or transactions” and were not “part of a common plan” as required for a multi-count indictment under Mississippi law. Petitioner's argument is that had counsel conducted a pre-trial investigation, counsel could have presented evidence that Petitioner was acting on bipolar mania at the time of the crime. This evidence, Petitioner maintains, would have demonstrated not only the absence of a plan, but also that Petitioner was acting in a Prozac-driven mania. Specifically, Petitioner notes that the declaration of Paul Murrell Stewart, his co-defendant, states that Stewart thought Petitioner had gone insane the night of the murders. ( See Pet. Memo, Ex. 16). Petitioner argues that the Mississippi Supreme Court's decision unreasonably applied Strickland, as it failed to consider that there was no plan, which was evidence a proper investigation would have revealed. Moreover, he argues that the evidence that was presented was unreasonably determined in light of that evidence, as under the State's theory, there would almost never be two crimes committed on the same night that could not be tried together.

Petitioner argued on post-conviction review that his attorneys were ineffective in failing to appeal the trial judge's decision not to sever the counts. Turner II, 953 So.2d at 1070. The Mississippi Supreme Court, citing Eakes v. State, 665 So.2d 852 (Miss.1995), recited the requirements for multiple counts in a single indictment. See id. at 1070-71. The Court noted that the State must first demonstrate that the offenses fall within the language of the statute allowing multi-count indictments. See id. at 1071. If the State makes out a prima facie case that the offenses fall within the statute, the defense may offer rebuttal to show that the offenses were separate and distinct acts. See id. The trial court then “should consider the time period between the offenses, whether evidence proving each offense would be admissible to prove the other counts, and whether the offenses are interwoven.” Id. The trial court's finding, if the correct procedure is followed, is given deference by the Mississippi Supreme Court on review. See id.

Reiterating the evidence presented to the trial court, the Mississippi Supreme Court noted that “[t]he murders took place during the execution of Turner and Stewart's common plan to commit robberies. The time frame involved was approximately twenty minutes. Much of the evidence at trial related to both crimes. Clearly, the two murders were interwoven. The trial court did not abuse its discretion in its decision not to sever the counts. Accordingly, the attorneys' failure to raise that issue on appeal is of no consequence.” Id. at 1071.

At a pre-trial hearing, defense counsel Collette presented the trial court with a motion to sever the indictment, arguing that the crimes occurred at two different locations, with two different victims, and at two different times. (Trial Tr. vol. 7, 185-86). He noted that there was no relation between the two locations, and that there were different facts and elements of proof at each location. ( See id. at 186). He maintained that trying the cases together would be highly prejudicial, as the jury would not be able to segregate the two cases for purposes of considering the evidence. ( See id. at 186-87). The State countered that the evidence proved that the defendants intended a robbery at one of the locations, which were 4.3 miles apart, and that the crimes occurred within minutes of one another. ( See id. at 187-88). After hearing the arguments, the trial court overruled the motion to sever the counts. ( See id. at 189).

The Mississippi Supreme Court found that Petitioner and Stewart had a plan to commit robberies, and that the time frame for both of the crimes was approximately twenty minutes. Turner II, 953 So.2d at 1071. The court noted that the same masks, weapons, vehicle, and modus operandi were involved in the crimes, and that the murders were interwoven. See id. The court found that as the trial court did not abuse its discretion in failing to sever the counts, the “attorneys' failure to raise that issue on appeal is of no consequence.” Id.

“[A]ppellate counsel is not constitutionally ineffective just because he does not raise every non-frivolous issue requested by the defendant.” Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir.1991) (citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). Rather, he must show that counsel was objectively unreasonable in failing to raise the non-frivolous issue and a reasonable probability that, if it had been raised, he would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Mississippi law provides that multiple charges may be tried together if “(a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.” Miss.Code Ann. § 99-7-2(1). Here, there was evidence of a plan to commit robbery, and much of the evidence pertained to both crimes, and the crimes occurred only a few miles apart and within less than a half-hour of one another. Petitioner's co-defendant testified that he and Petitioner decided to rob some stores while sitting at Petitioner's home. Petitioner has failed to demonstrate that it was unreasonable for the Mississippi Supreme Court to conclude that counsel did not perform ineffectively in failing to raise this issue on appeal, and this claim shall be dismissed.

B. Ineffective Assistance of Counsel at Guilt Phase
1. Failure to raise issue of silence Petitioner contends that trial counsel rendered ineffective assistance in not assigning on appeal as grounds for reversal that the prosecutor, in closing argument, made an indirect comment on Petitioner's failure to testify in violation of the Fifth Amendment. He maintains that the Mississippi Supreme Court made an unreasonable determination of facts in determining that the comments were not a suggestion to infer Petitioner's guilt from his silence.

The District Attorney stated the following in his closing: We put on 17 witnesses. On one hand the Defense Counsel says we shouldn't have put on but one. On the other hand, they say we should have put on more. We put on the witnesses that we thought ya'll needed to hear to make your decision. We could have probably put on forty witnesses, but why? We wanted to make sure that you had the facts that you needed to have. And one thing I want to make sure that ya'll understand; both sides have the right to subpoena witnesses, and you can bet if there was anything that was inconsistent, they would have put these other witnesses on. They had the right to do that. There is no sense in just keeping on and on-

BY MR. COLLETTE:-I object to that argument, Your Honor. I think it is beyond direct, and it also impinges on the Defendant's Fifth Amendment rights. BY THE COURT: I don't think it does that, but let's stick, let's just stick to the evidence in this case. (Trial Tr. vol. 13, 1144-45) (emphasis added).

On post-conviction review, Petitioner argued that the above-cited passage was an improper comment on Petitioner's failure to testify that counsel should have raised as a claim of error on appeal. See Turner II, 953 So.2d at 1071-72. The Mississippi Supreme Court noted the “obvious difference between the defendant's failure to testify and a comment on defendant's failure to put on a credible defense,” and it found the prosecutor's comments a “fair response to the defense's claim that the State failed to call some witnesses who could have been helpful to the jury.” Id. at 1072. The court found that the argument was not improper, and counsel was not ineffective in failing to raise the issue on appeal. See id.

A defendant's Fifth Amendment right, applicable to the states through the Fourteenth Amendment, is infringed upon if the prosecutor alludes to or comments on the defendant's failure to testify at trial. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). To be the denial of the right to remain silent, however, the comment must have been manifestly intended as a remark on Petitioner's silence, or the remark must have been of such a character that the jury would necessarily construe it as a comment on Petitioner's silence. See Cotton v. Cockrell, 343 F.3d 746, 751 (5th Cir.2003). If there is another, “equally plausible explanation for the remark,” the prosecutor's intent is not manifest. See id.; see also Barrientes v. Johnson, 221 F.3d 741, 780-81 (5th Cir.2000). Moreover, even if constitutional error is found, habeas relief cannot be granted unless Petitioner shows that the error “has substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Chapman v. California, 386 U.S. 18, 25, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding Griffin error subject to harmless error analysis).

In its closing argument, the defense argued that Stewart's testimony was “bought,” in that the District Attorney threatened Stewart with the death penalty if he did not testify against Petitioner. ( See Trial Tr. vol. 13, 1132-35). The comment complained of here was in response to defense counsel's argument that the State did not present the witnesses from the second store rather than rely upon Stewart's “bought” testimony. ( See id. at 1132-36). The argument by the District Attorney could be construed as a remark on the defense's failure to counter the State's presented evidence, which does not violate Petitioner's constitutional rights. See Montoya v. Collins, 955 F.2d 279, 287 (5th Cir.1992) (holding that a defendant's Fifth Amendment privilege is not violated where the comment is on the defense's failure, rather than the defendant's, to counter or explain the introduced evidence). As the jury would not have necessarily considered the District Attorney's statements as a comment on Petitioner's failure to testify, Petitioner's Fifth Amendment privilege was not violated. See Barrientes, 221 F.3d at 780. Moreover, the jury in this case was instructed not to consider the arguments of counsel as evidence, and it was instructed that it could not consider Petitioner's decision not to testify as evidence of guilt. ( See SCP vol. 4, 541, 544). Even if the argument could be construed as error, in light of the evidence of Petitioner's guilt and the instructions to the jury, Petitioner has not demonstrated it had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 623. Petitioner has failed to demonstrate that the decision of the Mississippi Supreme Court entitles him to relief on this claim under the AEDPA, and this claim shall be dismissed.

C. Ineffective Assistance at Sentencing Phase
1. Failure to prepare and present mitigation evidence

Petitioner contends that the full extent of his mental illness was not explored at trial due to counsel's failure to conduct an adequate investigation. As a result, he maintains, defense counsel presented inaccurate information and failed to present a full picture of Petitioner's upbringing and background. Petitioner maintains that counsel failed to uncover his family's lengthy history of mental illness, and he failed to interview and present witnesses who could have testified as to how his father's death affected his life. He contends that these witnesses could have also testified to the alcoholism in his family, as well as the abuse and neglect he and his younger brother suffered. He additionally argues that defense counsel presented Dr. Galvez's testimony that Prozac, the medication Petitioner had been prescribed at the Mississippi State Hospital, controlled his mental illness, while he argues that the medication actually triggered manic episodes. He maintains that these instances of deficient performance resulted in actual prejudice to him at the sentencing phase of trial.

In support of his claim, Petitioner attaches twenty-two exhibits that recount facts surrounding Petitioner's upbringing and family life, as well as various perceptions from family and friends of defense counsel's efforts at trial. ( See generally Pet. Memo Ex. 1-22). Petitioner argues that the affidavits attached to his federal habeas petition describe him as a bright, loving child who began a downward spiral in adolescence when the first symptoms of mental illness became apparent. He also attaches a declaration from Dr. Marc Zimmerman, a forensic psychologist who evaluated Petitioner in 2008, and who states that Petitioner “likely suffers from a bipolar disorder or possible schizoaffective disorder.” (Pet.Memo, Ex. 7).

The affidavits and records filed in this case recount a long history of mental and emotional upset in the Turner family. Petitioner is the son of Ladonna (“Donna”) and Edwin Turner, both of whom were excessive drinkers who engaged in violent fights after they had been drinking. (Ex. 3, 4, 6, 9).FN3 The affidavits of family members state that Petitioner and his younger brother, Trent, were often dirty, unkempt, and physically and verbally abused by Donna. (Ex. 1, 3, 5, 10). Family members note that Donna's drinking became heavier after she and Edwin divorced, and that she twice attempted suicide. (Ex. 1, 9). Family members note that when Edwin died in a dynamite explosion when Petitioner was twelve years old, Donna refused to allow the boys to grieve over the loss of their father and cut Petitioner off from the Turner family. (Ex. 1, 2, 11, 12). FN3. Unless otherwise noted, all of the exhibits referenced in this section are attached to Petitioner's memorandum of law filed in support of his petition for a writ of habeas corpus.

The affidavits recount that Donna's drinking became more excessive after she met and married Lewis Hodges, who did not appear to be fond of Petitioner or Trent. (Ex. 9, 12). Family members state that it was not unusual for Donna to forget to pick up the boys from school, and that it was not an infrequent occurrence for family members to find them wandering around town until someone arrived to get them. (Ex. 4, 6, 9). Hodges is alleged to be a “mean” drunk who beat Petitioner and his brother, and numerous family members note that Donna refused to let family help her care for her sons. (Ex. 1, 5, 10, 2, 11). Pam Creswell FN4, one of Donna's sisters, even notified the Department of Human Services of Donna's treatment of the boys, but the boys were not removed from the home. (Ex. 9, 11).

FN4. The trial transcript designates her as “Crestwell,” but the affidavit filed in State court and this Court uses the spelling “Creswell.”

Petitioner alleges that he began to display signs of mental illness by 1988, when he was fifteen years old. Petitioner was taken at least twice to Greenwood Leflore Hospital (“GLH”) for drug testing between 1988 and 1991 in response to his parents' complaint that he was “acting funny,” but the tests proved negative. (Ex. 7).FN5 On April 13, 1991, Petitioner attempted suicide by shooting himself with a rifle. Though the suicide attempt was unsuccessful, Petitioner was left severely disfigured by the blast. Hospital records from the admission for the suicide attempt note Petitioner's impulsivity, poor anger control, and “acting out” behaviors. (Ex. 7). Petitioner was admitted to St. Joseph Hospital and prescribed an antidepressant before being discharged in August 1991 with a diagnosis of Major Depression and a “fair to poor” prognosis. (Ex. 7). It was noted in the records that Petitioner had a poor relationship with his mother, who often failed to appear for family therapy sessions. (Ex. 7). Petitioner was readmitted to St. Joseph's in September 1991 exhibiting a myriad of symptoms associated with depression, hostility, and denial. (Ex. 7). It was noted that he had wrecked the car of his stepsister and the car of his stepfather since his last hospitalization, and when he was discharged after three weeks, it was with a diagnosis of Dysthymic Disorder and with notations as to his irritability and denial. (Ex. 7).

FN5. The facts surrounding Petitioner's various mental and medical treatments are summarized in Dr. Zimmerman's affidavit, which is attached as Exhibit 7 to Petitioner's memorandum. The actual records, however, were filed in State court as exhibits to the petition for post-conviction relief. ( See PCR Ex. P-S).

Petitioner suffered head trauma from a single-vehicle accident on November 27, 1991, approximately two months after leaving St. Joseph's, and he was intoxicated at the time. (Ex. 7; PCR Ex. S). A month later, he was admitted to GLH and diagnosed with alcoholism and agitated depression. (Ex. 7). The next day, on December 28, 1991, Petitioner was admitted to Parkwood Hospital under court order for Polysubstance Dependance, and he admitted his use of alcohol and illicit drugs. (Ex. 7). He was eventually discharged in February 1992. (Ex. 7). On January 26, 1993, Petitioner was taken to GLH with acute alcohol intoxication and was diagnosed as suffering with drug and alcohol intoxication as well as a possible personality disorder. (Ex. 7). Records describe him as suicidal, aggressive, hostile, and uncooperative. (Ex. 7). He was discharged four days later, and his “chronic agitated depression” was noted on the records. (Ex. 7).

Petitioner attempted suicide a second time on June 25, 1995, by cutting his wrists. He was taken to GLH, where he admitted he had been drinking alcohol prior to the accident. (Ex. 7). He claimed that he had not been planning a suicide attempt, and that he had been feeling well in the days leading up to the incident. (Ex. 7). Staff notes indicate that Petitioner needed psychiatric care for what they believed to be an impulse disorder. (Ex. 7). Petitioner was discharged on July 2, 1995, and the treating physician noted on the discharge summary Petitioner's chronic depression, unresolved childhood issues, anger, and very poor family relationships. (Ex. 7). He was readmitted two months later pursuant to a court order and prescribed 20 mg of Prozac daily, a dose that was doubled before he was discharged to the Mississippi State Hospital. (Ex. 7). At the Mississippi State Hospital, Petitioner was found to have Major Depressive Disorder and Borderline Personality Disorder. (Ex. 7). The treating psychologist noted that “self-destructive behavior in the future would not be surprising” from Petitioner. (Ex. 7). He was released from the State Hospital on October 23, 1995, under an order for outpatient therapy and referred to Dr. Barbara Goff. (Ex. 7). He was prescribed Prozac and cautioned not to drink alcohol. (Ex 7). Petitioner failed to comply with the conditions of his release, and the murders occurred about six weeks after his release from the State Hospital.

Petitioner argues that his mother's callous attitude toward Petitioner worsened his mental illness. He maintains that his father's family was not allowed to see him in the hospital following his first suicide attempt. (Ex. 1, 2, 3, 5, 12). At one point, Petitioner's parents threw him out of the lake house he and his brother owned, and his aunt Marsha and her husband found him living in a tent in the woods. (Ex. 9, 11). Another aunt, Pam Creswell, notes that Petitioner could have used the principal from the trust left to him by his father for medical treatment, but that Donna would not take steps to get him better medical care. (Ex. 9). Current habeas counsel, Lori Bell, maintains that Petitioner's mother tried to sabotage his relationship with Lori, telling him that no one could possibly love him because of his disfigurement. (Ex. 15). He maintains that most of this evidence was not presented to the jury for its consideration, and that the information that was elicited was inadequately presented.

Additionally, Petitioner maintains that Prozac is not recommended for people with Bipolar Disorder and may trigger manic episodes. He maintains that there existed evidence to support the conclusion that he was in a manic episode at the time of the crime, and that trial counsel failed to investigate the possibility. For example, Petitioner notes that before the crimes he was staying up all night, describing to family that he could not “think right,” that his mind was going too fast, and friends noted he was acting more irritated and outrageous. (Ex. 9, 13, 15, 16). Petitioner also failed to keep his appointment with Dr. Goff for court-ordered outpatient therapy. (Ex. 17). Petitioner argues that though his grandmother and great-grandmother were hospitalized and diagnosed as schizophrenic, his genetic predisposition to mental illness was not explored by trial counsel. (Ex. 18, 19). Petitioner contends that the medical history that was presented at trial was insufficient, and that the testimony presented through his expert, Dr. Galvez, was inaccurate and damaging. He maintains that counsel did not speak to relatives on his father's side of the family or to Lori Bell, despite their willingness to testify. (Ex. 1, 2, 3, 5, 6, 10, 12, 13, 14, 15). He maintains that an investigator was sent to interview his relatives from his mother's side of the family, but that the family members were hesitant to speak openly because Donna was present. (Ex. 9). Later meetings, according to the family, were cancelled by defense counsel. (Ex. 9).

Petitioner notes that during his pre-trial competency hearing, Dr. Reb McMichael, testifying for the State, stated that the Prozac prescribed to Petitioner would have added to his impairment on the night of the murders, particularly as it was combined with the use of alcohol and marijuana. ( See Trial Tr. vol. 7, 230). At sentencing, the jury was instructed to consider two statutory mitigating factors relevant to Petitioner's mental state at the time of the crime. One, they were to consider whether “[t]he offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Miss.Code Ann. § 99-19-101(6)(b). Two, they were to consider whether “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Miss.Code Ann. § 99-19-101(6)(f). Petitioner maintains that counsel was ineffective in failing to seek a pharmacologist to testify to the effects of the drugs on Petitioner's mental state and thereby offer support for two statutory mitigating circumstances that were considered by the jury.

During his State court proceedings, Petitioner presented the affidavit of Dr. Anthony J. Verlangieri, a biochemical toxiocologist/pharmacologist, who states that a pharmacological examination is warranted in Petitioner's case. ( See Pet. Memo, Ex. 8, Aff. of Anthony J. Verlangieri, March 4, 2002). Dr. Verlangieri notes that Prozac can trigger mania in some people with mental disorders, opines with reasonable likelihood that Petitioner suffers some type of brain dysfunction, and notes that Petitioner's attorneys are making arrangements to have him tested. ( See id. ¶ 11). Dr. Verlangieri notes that he cannot perform the needed examination until a full history and neuropsychological battery have been conducted. ( See id.).

In this Court, Petitioner has submitted for the first time in any proceeding the declaration of Dr. Marc Zimmerman, who opines that Petitioner would have met the above-cited statutory mitigating circumstances at the time of his trial, as there is evidence that the administration of Prozac triggered a manic episode in Petitioner. (Ex. 7). Dr. Marc Zimmerman's declaration states that “Prozac should not be prescribed to patients who exhibit signs of mania. There are numerous indications that [Petitioner] was in a manic phase for a great deal of the time from his discharge until the crime. Based on the materials available to me, I conclude to a reasonable degree of medical certainty that the Prozac triggered mania.” (Pet. Memo, Ex. 7 ¶ 54, October 13, 2008). He also concludes that, at the time of the offense, Petitioner “was under the influence of extreme mental or emotional disturbance” and his capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” ( See id. ¶ 57). Petitioner argues that counsel's failure to retain the expert services necessary to present testimony that Petitioner became manic after his discharge due to the effects of Prozac was deficient performance that prejudiced him at trial. Moreover, Petitioner maintains that the testimony that was presented failed to draw a connection between Petitioner's behavior and that of his parents, and that the testimony did not include an exploration of the mental illness suffered by Petitioner's grandmother and great-grandmother.

At the sentencing phase of Petitioner's trial, three family members and one expert testified for the defense. These witnesses testified to Petitioner's loving, respectful nature as a child; his popularity in school; the physical and verbal abuse he was subjected to at home; that he had been institutionalized several times; that he had attempted suicide twice; that he was kicked out of the home left to him by his deceased father and forced to live in the woods; that family members had called the Department of Human Services to report the abuse and neglect Petitioner and his brother suffered; that Petitioner's mother favored Trent over Petitioner; that the State failed to properly treat his illnesses; that family members met with a judge to try to get Petitioner sentenced somewhere he would receive proper care; that family members attempted to take Petitioner and Trent, but Donna refused to allow them to go live with family members; and that Petitioner's family life, medical treatment, and untreated personality disorder led to this crime. ( See Trial Tr. vol. 13, 1158-1199; Trial Tr. vol. 14, 1200-27).

Also testifying for the defense at the sentencing phase was Dr. Rodrigo Galvez, a psychiatrist. ( See Trial Tr. vol. 14, 1206). He was initially hired by the defense to interview Petitioner to determine his competency to stand trial and whether he was sane at the time of the offenses. ( See id. at 1208). Dr. Galvez reviewed all of Petitioner's prior medical records and evaluations and determined that he was competent to stand trial and not insane at the time of the crimes. ( See id.). Dr. Galvez testified in mitigation about Petitioner's three prior involuntary commitments and the court-ordered requirements of his release from the State Hospital in October of 1995. ( See id. at 1208-1210). At the time of his release from the State Hospital, as noted by Dr. Galvez, Petitioner was ordered to comply with outpatient therapy, refrain from the use of drugs and alcohol, and take his prescribed medication. ( See id. at 1209-10). He testified that Petitioner's actions on the night of the murders was not the result of Prozac, but due to his untreated personality disorder along with his consumption of alcohol and marijuana. ( See id. at 1211-19).

Dr. Galvez testified that Petitioner suffered from Major Depression and “probably substance abuse,” as well as Borderline Personality Disorder. ( See id.). Dr. Galvez discounted the probability that Petitioner's prescribed medication contributed to the crimes, as the Prozac was prescribed for, and in his opinion was successfully treating, Petitioner's depression. ( See id.). Dr. Galvez opined that it was Petitioner's untreated personality disorder that led to the crimes, and that Petitioner's numerous hospital records clearly indicated its presence and need for treatment. ( See id. at 1212-13). Dr. Galvez also testified that he was not surprised to hear accounts of Petitioner's abusive and neglected childhood, as personality disorders are created by circumstance. ( See id. at 1213). Dr. Galvez testified that though Petitioner knew what he did was wrong at the time of the crimes, he lacked the ability of someone who was not suffering from mental illness to stop his behavior. ( See id. at 1218). He maintained that Petitioner's “per se” lack of “moral brakes,” combined with beer and marijuana, made him incapable of controlling his behavior the night of the crimes. ( See id. at 1219). Dr. Galvez testified that family, society, and medicine all failed Petitioner, as he never got the treatment he needed to keep the crime from occurring. ( See id. at 1220).

On cross-examination, Dr. Galvez maintained that while Petitioner was legally sane at the time of the murder, he was suffering an extreme mental or emotional disturbance at the time of the murders due to his personality disorder. ( See id. at 1222-26). Dr. Galvez testified that Petitioner's resentment toward authority, anger, and destructive behavior are all part of the disorder. ( See id. at 1227).

In rebuttal to Dr. Galvez's testimony, the State presented the testimony of Dr. Reb McMichael, a psychiatrist and Director of Forensic Services of the Mississippi State Hospital. ( See id. at 1230). He testified that Petitioner knew what he was doing and was not under an extreme mental or emotional disturbance at the time of the crimes. ( See id. at 1231-32). Dr. McMichael conceded that Petitioner's ability to appreciate and conform his conduct on the night of the crimes might have been substantially impaired, but he stated it was due to Petitioner's intoxication. ( See id. at 1232, 1237). He also agreed that Petitioner has a personality disorder, but he maintained that the disorder did not excuse Petitioner's behavior. ( See id. at 1233). On cross-examination, Dr. McMichael conceded that Petitioner was discharged from the State Hospital with specific instructions that were not followed, but that no one sought to enforce the order. ( See id. at 1239-40).

The Mississippi Supreme Court considered Petitioner's claim on post-conviction review and found no evidence that counsel's pretrial investigation was insufficient. Turner II, 953 So.2d at 1073-74. The court noted that Petitioner's family members testified concerning Petitioner's background and character, and that Dr. Galvez provided testimony concerning Petitioner's mental illness and lack of culpability for the crimes. See id. The court found that the record supported a determination that counsel had consulted voluminous records and interviewed numerous witnesses, and that counsel was not ineffective in calling to testify only those witnesses they thought would be most effective. See id. The court noted that numerous affidavits were submitted in post-conviction proceedings, and it determined that “[m]uch of the proposed testimony in those affidavits is repetitive of what was presented to the jury .... [and further exploration and testimony] would only have been cumulative.” See id.

Petitioner argues that it was unreasonable for the State court to determine that the evidence offered on post-conviction was cumulative of the witness testimony presented at trial and within the realm of trial strategy, as Petitioner's counsel failed to interview numerous witnesses and discover the available, pertinent information. Respondents maintain that most of the information Petitioner has presented to this Court by way of family and friend affidavits was presented to the jury at his trial, with the exception of his family's history of mental illness and Petitioner's isolation from the Turner family after his father's death. Respondents argue that as Petitioner worked in his paternal uncle's business before the instant crimes, he was not completely “cut off” from his father's family. ( See Ex. 2, Aff. of Dent Turner). Respondents also note that the affidavits, while mostly hearsay, otherwise contain information that would have been damaging if revealed in cross-examination. Respondents also maintain that Petitioner's medical records would have been damaging if they had been introduced. Respondents, arguing that counsel provided reasonable professional assistance by not presenting the evidence, note that:

• Petitioner had a trust fund but was afraid to work for fear of losing government assistance that paid for his facial reconstruction. (Pet.Memo, Ex. 2) • Petitioner's hospital records reveal violent outbursts and oppositional behavior, that he exaggerated his symptoms, and that he has a tendency to blame others for his problems. (PCR Ex. O). • Petitioner has a long history of substance dependence, did not complete the substance abuse program in which he was enrolled, and he made threats to kill his stepfather. (PCR Ex. P). • Petitioner was in denial about his antisocial acts, which included that he threatened to kill his brother, kicked open the door to his brother's car, and pulled a gun on a cashier. (PCR Ex. R). • Petitioner wrecked both his stepfather's car and his stepsister's car prior to his second admission to St. Joseph's in September 1991. (PCR Ex. Q). • On the seventh night of his treatment at GLH following his second suicide attempt, Petitioner overpowered a nurse and escaped from his room, and he was later discharged against medical advice. (PCR Ex. S).

Respondents also argue that Dr. Verlangieri's affidavit fails to conclude that Prozac caused a manic episode in this case, but rather, he states that additional testing is needed to reach a conclusion. They argue that counsel either failed to have testing performed, or that the testing results were not favorable to Petitioner, as the results are not presented to the Court. Respondents also contend that Dr. Zimmerman's affidavit is only a disagreement with trial counsel's expert of choice and is insufficient to provide Petitioner with habeas relief. FN6. Respondents also maintain that Petitioner failed to use due diligence to obtain the information in Dr. Zimmerman's report.

Having considered the evidence that was presented at trial and the evidence that was omitted, the Court finds that it was not objectively unreasonable for the Mississippi Supreme Court to conclude that counsel was not ineffective in failing to investigate or present mitigating evidence at Petitioner's trial. The Court has recounted the evidence actually presented at trial. ( See also Trial Tr. vol. 13, 1158-1199; Trial Tr. vol. 14, 1200-27). The information offered in the affidavits of Petitioner's friends and family would have been largely cumulative to that presented at trial, and its omission does not render the decision that counsel was not ineffective unreasonable. See Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir.2007) (holding counsel's decision not to present cumulative testimony is not ineffective assistance); United States v. Harris, 408 F.3d 186, 191 (5th Cir.2005) (“This Court has previously refused to allow the omission of cumulative testimony to amount to ineffective assistance of counsel.”). Additionally, Petitioner has not shown that it was unreasonable for the court to conclude that counsel interviewed many family members but only called the most effective witnesses to give testimony. See Bobby v. Van Hook, --- U.S. ----, ----, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009) (the Court holding it was not unreasonable “for his counsel not to identify and interview every other living family member or every therapist who once treated his parents.”).

Moreover, it is clear from the testimony given at trial that Dr. Galvez had and reviewed Petitioner's medical and psychiatric records. Counsel elicited from the State's rebuttal expert that Petitioner's ability to conform his actions to the requirements of the law was impaired at the time of the crimes, as well as the fact that the court system failed to act on Petitioner's noncompliance with the conditions of his release from the State Hospital. ( See id. at 1237-38, 1240). The argument that Petitioner's prescribed medication led to the crimes is speculative and, as Respondents argue and this Court agrees, reflects only a disagreement between experts.FN7 Counsel was entitled to rely upon his expert's reasonable opinion that it was Petitioner's personality disorder, and not the medication, that led to the crimes. See Smith v. Cockrell, 311 F.3d 661, 676-77 (5th Cir.2002). Moreover, it is speculative that a jury would have assessed Petitioner's culpability any differently with the additional testimony that Prozac can trigger mania. The additional evidence offered is not of a character so compelling that there exists a reasonable probability that at least one juror would have decided he was less culpable and deserving of a lesser sentence. See Neal v. Puckett, 286 F.3d 230, 241 (5th Cir.2002) (stating that the inquiry for the prejudice prong requires asking whether “the additionally mitigating evidence [is] so compelling that there is a reasonable probability at least one juror could reasonably have determined that, because of [Petitioner's] reduced moral culpability, death was not an appropriate sentence?”). Trial counsel presented testimony from Petitioner's expert that Petitioner's personality disorder rendered him incapable of conforming his conduct to the requirements of the law. ( See Trial Tr. vol. 14, 1208-1227). Petitioner has failed to present clear and convincing evidence of error in the court's factual findings, and he has failed to demonstrate that the decision reached by the Mississippi Supreme Court was contrary to or based upon an unreasonable application of Strickland and its progeny. This claim shall be dismissed.

FN7. This Court granted Petitioner's two requests to allow Dr. Zimmerman contact with Petitioner for the purpose of conducting a mental health evaluation.

2. Inviting damaging evidence in sentencing

Petitioner presented testimony from three of his family members at the sentencing phase of his trial, and each testified regarding his good character traits. ( See, e.g., Trial Tr. vol. 13, 1158-1200; 1201-04). On cross-examination, the State inquired of the witnesses whether they knew that Petitioner had assaulted his mother and step-father. ( See Trial Tr. vol. 13, 1169, 1182). Both witnesses denied knowing any such fact, and both indicated that Donna was not afraid of Petitioner. ( See id.). Petitioner maintains that counsel rendered ineffective assistance in dealing with the improper questions posed by the prosecutor. Petitioner notes that his mother denies the abuse and would have rebutted the inference if she had been questioned. (Pet. Memo, Ex. 21, Declaration of Ladonna Sanders Turner, October 20, 2008). He otherwise argues that under Woodward v. State, 635 So.2d 805, 810 (Miss.1993), counsel could have presented good character evidence without opening the door to negative evidence. He argues that counsel was ineffective for not realizing they could proffer mitigating evidence without making Petitioner's prior bad acts admissible, and that counsel was ineffective for failing to object to the questions posed on cross-examination.

On direct appeal, Petitioner raised the issue of the prosecutor's questions as one of prosecutorial misconduct. Turner I, 732 So.2d at 950. The court noted that counsel had failed to object to the issue and had waived it for purposes of appeal. See id. The court otherwise found that Petitioner put his character into evidence, and that the State was entitled to ask the witnesses questions designed to rebut their “good character” testimony. See id. On post-conviction review, the court rejected Petitioner's claim that his attorneys could have presented the evidence of abuse without opening the door to prior bad acts testimony. See Turner II, 953 So.2d at 1075. The Court found that Petitioner's reliance on Woodward was inappropriate given that Petitioner's general background was provided to the jury and there was no allegation that counsel gave an inadequate closing argument. See id. The court noted that Petitioner had offered “no authority to explain how counsel could have accomplished” putting on good character evidence without risking cross-examination about the bad character proof. See id. The court found no evidence that counsel was ineffective and rejected the claim. See id. Petitioner maintains that he did, however, claim in post-conviction that his background was not adequately presented to the jury, so the court unreasonably determined the facts of the case.

The Court first notes that Petitioner has not demonstrated how trial counsel could have prevented the prosecutor from posing the complained of questions to the witnesses, as Woodward is distinguishable from the instant case. In Woodward, a psychiatrist, Dr. Thurman, was the only witness called by the defense, and he would have testified that Woodward suffered from a mental disturbance at the time of the crime. See Woodward, 635 So.2d at 810. However, counsel would not allow Dr. Thurman to testify to Woodward's history and background, but only to the results of the testing. See id. Counsel was relying “solely on mental illness as a mitigating factor” but failed to offer all of the available evidence. Id. The court found that counsel's failure to present the evidence in conjunction with the deficient closing argument counsel presented was prejudicial error. See id. Though Petitioner takes issue with the extent of the evidence offered, his trial counsel did present background information and evidence of Petitioner's mental illness in this case.

Under Mississippi law, when an accused offers evidence of a positive character trait he opens the door for the prosecution to “rebut the same.” See Miss. R. Evid. 404(a)(1). Petitioner has not demonstrated why the prosecutor's questions were objectionable, and counsel does not perform ineffectively in failing to lodge a baseless objection. See Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir.2002) (holding counsel not deficient in failing to object to admission of testimony admissible under then-existing precedent); Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir.1990) (noting that prejudice does not flow from counsel's failure to raise a meritless claim). Petitioner has not demonstrated that the Mississippi Supreme Court's decision was based upon an unreasonable determination of facts, nor that it involved an objectively unreasonable application of controlling federal law. This claim shall be dismissed.

3. Failure to move for mistrial on cross-examination

Petitioner maintains that the State was obligated to support their allegations that Petitioner threatened his stepfather and abused his mother with proof, and that counsel performed ineffectively in not requiring Petitioner to back up the statements with evidence. In State court, Petitioner argued that Flowers v. State, 773 So.2d 309, 326-27 (Miss.2006), requires that counsel have a good faith basis for asking a question on cross-examination, and that the right to a fair trial is impinged otherwise. On post-conviction review, the Mississippi Supreme Court found that as the State was allowed to rebut the testimony given by defense witnesses with evidence of bad conduct, counsel was not ineffective in failing to seek a mistrial in light of permissible questions. See Turner II, 953 So.2d at 1075-76 (citing Turner I, 732 So.2d at 950). In reaching this conclusion, the court noted that Flowers could not have been cited by trial counsel, as it was decided after Petitioner's case was decided. See id. at 1075.

Petitioner argues that the precedent upon which Flowers relies is long-standing and well-founded, and that Petitioner's sentence would have been vacated had the issue been raised on appeal. Petitioner also maintains that the Mississippi Supreme Court's adjudication of this claim involved two incorrect premises. First, he argues, the reasoning he relies upon in support of the claim dates back to 1973, over twenty years before Petitioner's trial. Second, he maintains that the court mischaracterized his claim, as the court's analysis did not focus on the fact that it violates fundamental fairness to allow a prosecutor to pose questions based on facts not shown to be true.

The evidentiary rulings of a State court, even if erroneous, are not grounds for federal habeas corpus relief unless those errors denied Petitioner fundamental fairness under the Due Process Clause. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir.2007); Neal v. Cain, 141 F.3d 207, 214 (5th Cir.1998). This Court cannot conclude that Petitioner was denied a fundamentally fair trial as a result of the questions posed by the prosecutor. Moreover, Petitioner cannot support his claim of ineffective assistance of counsel or any underlying due process claim by having the court presume that no evidence supported the question. Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir.1998).

No offer of proof was made by the prosecution because no objection was lodged by defense counsel, but the record nonetheless reveals some support for finding the questions relevant. Donna's sisters, Marsha Shaw and Pam Creswell, both testified at the sentencing phase of Petitioner's trial. When asked whether Petitioner had ever threatened or abused his mother and stepfather, each of them denied that Petitioner threatened violence toward his mother and stepfather. ( See Trial Tr. vol. 13, 1169, 1182). Each of them also stated that they had discussions with Donna about whether Petitioner was violent toward her or made her feel afraid of him. ( See id.). During the prosecution's cross-examination of Martha Shaw, the prosecutor asked whether she was “aware of the fact that [Petitioner's] mother and stepfather have had to both go to the Sheriff's Department?” Mrs. Shaw stated that she was, as she had seen it in the paper and asked Donna about the incident. (Trial Tr. vol. 13, 1171). Additionally, Petitioner's records from the Mississippi State Hospital contain a notation of a “homicidal threat” Petitioner made to his stepfather. (PCR Ex. P).FN8 The Mississippi Supreme Court's rejection of Petitioner's Strickland claim based upon counsel's failure to seek a mistrial has not been shown unreasonable, and this claim shall be dismissed.

FN8. The Court also notes that Petitioner's mother signed a declaration on October 20, 2008, denying that Petitioner had ever abused her. ( See Pet. Memo, Ex. 21). The Court notes that this declaration was not presented to the Mississippi Supreme Court, and it does not otherwise prove that there was no support for the questions posed.

II. Sentencing on Factors/Facts Not Found by Jury
1. Unconstitutional aggravating circumstances/skewing of aggravating circumstances

At Petitioner's trial, the sole aggravating circumstance sought by the State was that “[t]he capital offense was committed for pecuniary gain” See Miss.Code Ann. § 99-19-101(5)(f). Petitioner maintains that the prosecutor did not limit his closing argument to the pecuniary gain aggravator, as he argued that the brutality of the crime as a factor that justified the death penalty. He argues that though the jury was encouraged to consider the brutal nature of the crime in reaching their decision, the jury was not required to agree on the factor, and the factor was not defined for the jury. He maintains that his jury was given unbridled discretion as a result, as the Eighth Amendment forbids the use of the “especially heinous, atrocious or cruel” aggravator without a limiting instruction. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). Petitioner argues that counsel was deficient in failing to object to this argument, and the Mississippi Supreme Court reached decisions contrary to clearly established precedent in failing to properly limit the jury's consideration of aggravating factors.

Petitioner cites the following passages from the prosecutor's closing in support of his argument: Because of the gruesomeness of this crime, because of the way it was conducted, that [death] is the only appropriate sentence for this crime. * * * Ya'll remember how this crime was committed. You remember how gruesome it was. (Trial Tr. vol. 14, 1279) * * * This Defendant for no reason shoots him. And as we already know, that shot would have killed him. But that wasn't enough ... [T]his Defendant is the type person that has such an anger that the fact that he couldn't get the cash register open was enough to stick a gun up to his face and shoot him in the face again. This is the kind of Defendant that we are dealing with. This is why we are asking for the death penalty in this case. Then we go to the second store ... We have got a man that is minding his own business trying to pump gas in his car.... This Defendant goes up to him with the same rifle. He begs him not to kill him. He tries to give him his money.... And what does [Petitioner] do? He puts the rifle up to the side of his head and blows his brains out with the rifle for no reason. This again is why we are asking you to return the death penalty in this case. This is a very brutal and gruesome case. (Trial Tr. vol. 14, 1280) * * * This person decided he would go out and brutally kill these people during the commission of an armed robbery ... I submit to you that he is a monster. (Trial Tr. vol. 14, 1296)

On direct appeal, the Mississippi Supreme Court considered Petitioner's argument that the prosecutor insinuated the especially heinous, atrocious and cruel aggravator in his closing argument, and it noted that trial counsel made no objection to the State's argument during the first two comments made by the prosecutor. See Turner I, 732 So.2d at 955. The court found these instances of alleged error waived due to counsel's failure to contemporaneously object. See id. The court noted that Petitioner did object to the third reference to the gruesome nature of the killing, and that the trial court overruled the objection. See id. The court found that “[g]ruesome was an apt and proper description of the circumstances of these slayings. This Court has held that the State can present the detailed circumstances of the murder committed by the defendant during the sentencing phase or during a resentencing phase even though the facts of the crime do not support one of the aggravating factors.” See id. at 955-56. The court found that the State could properly argue facts and draw inferences in order to prove that Petitioner had the requisite culpable intent under the statute. See id. at 956. The court also noted that the jury was instructed on one aggravating circumstance and “had no way under the instructions to base their sentence of death on any argument” not listed as an aggravating factor. See id.

On post-conviction review, the court considered whether the jury was allowed to return its verdict on evidence outside of the aggravating factor listed at trial. See Turner II, 953 So.2d at 1076. The court rejected Petitioner's argument that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) FN9; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) FN10 and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) FN11 applied, as they were not handed down until Petitioner's direct appeal was final and are not retroactively applied. See id. at 1076. The court also noted that the arguments about the brutality of the offense were decided on direct appeal and found without merit. See id.

FN9. Petitioner cites to Apprendi for the holding that a defendant cannot be exposed “to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” See Apprendi, 530 U.S. at 483. FN10. Ring applied Apprendi to capital cases. FN11. Blakely dealt with a sentence in excess of the standard range under Washington's Sentencing Reform Act based on the trial judge's finding that Blakely acted with deliberate cruelty in carrying out the crime.

Respondents maintain that the legal arguments Petitioner presents for federal habeas review are barred from this Court's consideration, as they have never been presented to the State court. The claim raised on post-conviction review concerning trial counsel's ineffectiveness is clearly not the claim raised here, as Petitioner argued on post-conviction review that his Sixth Amendment right to have sentence-enhancing facts found by a jury was violated. Ordinarily, a claim not presented to the State court cannot be considered on federal habeas review. See Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003) (holding that the exhaustion requirement is not satisfied where petitioner presents new legal theories in his federal habeas petition); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001). In his direct appeal brief, however, Petitioner argued that the verdict was based on “arbitrary and undefined factors” as a result of the prosecutor's argument concerning the brutality of the crime. ( See “Appellant Turner's Brief” at 44, No. 97-DP-0583-SCT). Out of an abundance of caution that Petitioner's current claim merely supplements the claims raised in State court, the Court will address its merits. Anderson, 338 F.3d at 386-87 (holding that dismissal is not required on exhaustion grounds where claim does not fundamentally alter the claim presented to the state courts).

The cases cited by Petitioner hold that the Constitution requires a limiting instruction with the use of the “especially heinous” aggravator to avoid it being unconstitutionally vague. See Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The jury in this case was not instructed on the “especially heinous” aggravator, and therefore, had no way to give it any weight. See Miss.Code Ann. § 99-19-101(5). Moreover, Petitioner's jury was instructed not to consider the arguments of counsel as evidence, and juries are presumed to follow their instructions. See Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Petitioner has not demonstrated that counsel performed ineffectively in failing to object to the prosecutor's description of the crime, and as the jury was not instructed to consider the brutality of the crime in aggravation, he was not prejudiced. This claim does not warrant federal habeas relief, and it shall be dismissed.FN12

FN12. The Court finds Petitioner has abandoned the argument he made on post-conviction review in support of this claim. To the extent such a claim is raised herein, it does not provide Petitioner with relief. Apprendi, Ring, and Blakely were all decided after Petitioner's direct appeal became final, and they have no retroactive application in Mississippi. ( See Turner II, 953 So.2d at 1076).

2. Proportionality review based on facts not found by jury

The Mississippi Supreme Court is mandated to conduct a proportionality review in each case resulting in a sentence of death to determine whether the sentence is excessive to the penalty imposed in similar cases, while considering both the crime and the defendant. See Miss.Code Ann. § 99-19-105(3)(c). Petitioner notes that only one aggravator was found by the jury in his case, and that the Mississippi Supreme Court's proportionality review included a comparison of seventy-two cases. Only one of those cases, Petitioner argues, involved only one aggravating circumstance, and he notes that it was ultimately vacated on habeas corpus review. Petitioner also argues that the facts relied upon by the court in finding the sentence proportional on post-conviction review were not found by the sentencing jury, as the jury only found that he had participated in two killings in the course of robberies and for pecuniary gain.

On post-conviction review, the Mississippi Supreme Court found Petitioner's claim as to the inadequacy of its proportionality review barred as having been addressed on direct appeal. See Turner II, 953 So.2d at 1076-77 (citing Turner I, 732 So.2d at 956). It otherwise determined that the sentence was not disproportionate and stated that Petitioner “killed two men without provocation. Both were shot in the head at close range during robberies. The jury's finding that the murders were done for pecuniary gain is unequivocal.” See id. at 1077. Petitioner maintains that this review violated the rules of Apprendi v. New Jersey, 530 U.S. 483 (2000), Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Blakeley v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which hold that the Sixth Amendment does not allow a defendant to be exposed to penalty exceeding that which he would receive if he were punished according to the sole facts reflected in the jury's verdict.

Petitioner is not entitled to federal habeas relief on this claim, as there is no federal constitutional right to a proportionality review. Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Petitioner supports his claim by maintaining that he is the only death-sentenced individual in Mississippi whose sentence has been affirmed based on the existence of one aggravating factor. Even if Petitioner's claim is accurate, he cannot “prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.” McCleskey v. Kemp, 481 U.S. 279, 306-07, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Petitioner also cannot obtain relief by suggesting that the Mississippi Supreme Court improperly considered nonstatutory aggravating factors in its proportionality review. Petitioner has not demonstrated that Mississippi sentencing procedures fail to adequately channel the jury's discretion, thus he cannot demonstrate that the sentence is disproportionate as contemplated by the Eighth Amendment. See id. at 308.

The Court additionally notes that the Mississippi Supreme Court expressly determined that Apprendi, Ring, and Blakely were not retroactively applied and were inapplicable to Petitioner's claim. See Turner II, 953 So.2d at 1076. Petitioner has not demonstrated that the court's decision entitles him to relief. See Danforth v. Minnesota, 552 U.S. 264,552 U.S. 264, 128 S.Ct. 1029, 1048, 169 L.Ed.2d 859 (2008) (“When questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions.”). Moreover, the Court notes that Petitioner's exposure to punishment was not increased by the proportionality review, as he was already under a sentence of death at the time it was performed. This claim shall be dismissed.

III. Errors on Direct Appeal
1. Prosecutorial misconduct

Petitioner maintains that his trial was rendered fundamentally unfair when the prosecutor was allowed to cross-examine witnesses at the sentencing phase of his trial concerning allegations that Petitioner had abused his mother and stepfather, and that they had called law enforcement for assistance. ( See Trial Tr. vol. 13, 1169, 1182). Petitioner maintains that his mother denies the allegations, and she could have rebutted the inferences had proper questions been posed. He argues that the prosecutor did not support the prejudicial allegations with evidence, thereby rendering his trial unfair. While he acknowledges this claim was found barred on direct appeal for counsel's failure to make a contemporaneous objection, he argues that counsel's ineffectiveness allows review of the merits of the claim.

On direct appeal, the court found that Petitioner had waived the issue by failing to object to the questioning at trial. Turner I, 732 So.2d at 950. The court otherwise found that Petitioner had placed his character into evidence, and that the State was allowed to rebut the good character testimony on cross-examination. See id. The Court finds that Petitioner's claim is here barred on the basis of an independent and adequate state procedural ground. See, e.g., Coleman, 501 U.S. at 729-30 (“The [state ground] doctrine applies to bar federal habeas claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests upon independent and adequate state procedural grounds.”); see also Stokes v. Anderson, 123 F.3d 858, 860-61 (5th Cir.1997) (finding Mississippi's contemporaneous objection requirement an independent and adequate procedural bar). The Court has already addressed Petitioner's allegations of trial counsel's deficiency with regard to this claim and found counsel not ineffective, therefore Petitioner has failed to demonstrate cause and prejudice for the default. See Coleman, 501 U.S. at 750.

Even if this claim were not barred, Petitioner could not obtain relief on his claim, as he would be entitled to relief only if the prosecutor's actions rendered proceedings against him fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Such unfairness is demonstrated if the Court finds that the prosecutor's comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Petitioner put his character into issue at sentencing, and the State was entitled to rebut the mitigating testimony offered. See, e.g., Davis v. State, 684 So.2d 643, 655 (Miss.1996). Petitioner has failed to show that the questions were improper. Moreover, the allegation of abuse was denied by each of the witnesses, and the prosecutor did not belabor the issue. Therefore, even if the questions were improper, Petitioner was not denied due process as a result of them being posed. This issue is barred, and it otherwise fails to entitle Petitioner to relief.

2. Improper limitation of mitigation evidence

Petitioner argues two trial court errors in this ground. First, he maintains that the trial court barred him from eliciting information from three witnesses about his relationship with his mother. Second, he maintains that the trial court instructed the jury that they could consider “whether the capacity of Mr. Turner to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.” Petitioner maintains that the instruction offered by the defense and refused by the trial court struck the word “substantially” from the instruction. He argues that the trial court's rejection of his instruction precluded him from presenting mitigating evidence and prohibited the jury's full consideration of that evidence.

On direct appeal, Petitioner argued that defense counsel attempted to elicit testimony about his relationship with his mother from three of his witnesses, but that the trial court improperly sustained the prosecutor's hearsay objection. See Turner I, 732 So.2d at 950. The court noted that Petitioner had failed to point out the special or unique circumstances that would make the hearsay admissible during the testimonies of Marsha Shaw, Pamela Creswell, and Kenneth Creswell. See id. at 951. The court found that, as Petitioner did not proffer what the testimony would have shown, the assignment of error as to the first two witnesses was waived. See id. The court also noted that the questions to Mrs. Shaw and Mrs. Creswell related to something Petitioner's mother said to Petitioner, and that his mother, who was present at trial, could have testified to what she said. See id. The court noted that the question posed to Mr. Crewsell involved something Mrs. Creswell had said, and that trial counsel could have asked her the substance of the statement, as she testified immediately prior to Mr. Creswell. See id. at n. 2.

Defense counsel questioned Marsha Shaw on direct examination about Petitioner's first failed suicide attempt that left him disfigured. (Trial Tr. vol. 13, 1165). Then defense counsel asked:

Q. Do you know of any occasion where he and his mother had a conversation about the grotesque nature of his appearance? A. Yes. I was told by- BY MR. EVANS:-I object to what she was told. She is going to have to testify what she knows firsthand. BY THE COURT: Yes, ma‘am. That is true. (Trial Tr. vol. 13, 1165). While questioning Pam Creswell, defense counsel asked her about Petitioner's disfigurement, and counsel asked whether she had any knowledge of a conversation between Petitioner and his mother about his appearance following the suicide attempt. (Trial Tr. vol. 13, 1179). The following exchange occurred: Q. Are you aware of a conversation [Petitioner] and his mother had about his physical appearance after he shot himself? BY MR. EVANS: Unless she was present, I would object. BY THE WITNESS: A. I'm not sure. I'm not, don't remember. I mean I don't know anything about their conversation. *26 Q. Do you know anything about a conversation they had about whether he could date other folks or anything? BY MR. EVANS: Your Honor, again, I would- BY MR. DUKES:-I'm asking- BY MR. EVANS:-I would ask that he have to ask questions about what this witness knows. BY MR. DUKES: That's what I'm asking. BY THE COURT: She must have- BY MR. DUKES:-Do you know and were you present at any conversation- A. I was not present at any conversation. Q. All right. Did your sister tell you what she told [Petitioner]? BY MR. EVANS: Which is exactly what I just objected to. I object to him asking her questions that are hearsay. BY THE COURT: Sustained. (Trial Tr. vol. 13, 1179).

Next, Pam Creswell's husband, Kenneth Creswell, testified. (Trial Tr. vol. 13, 1191-1200; Trial Tr. vol. 14, 1201-1204). When defense counsel attempted to ask Mr. Creswell about Petitioner's mental state after his return from the State Hospital, Mr. Creswell began to state what Petitioner had told Ms. Creswell. (Trial Tr. vol. 13, 1197). The State objected on hearsay grounds, and the trial court sustained the objection. ( See id.). Counsel did not make a proffer with any of the three witnesses.

Petitioner's claim is barred on the basis of an independent and adequate state law bar. See, e.g., Coleman, 501 U.S. at 729-30. Even in the absence of a bar, however, this claim would not warrant relief. In a capital case, the sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstance of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (adopted by a majority in Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)). However, a trial court is not required to allow a defendant to present evidence in any manner he wishes. The fact that Petitioner was not allowed to present evidence in the manner he wished to present it does not mean that he was prevented from presenting relevant mitigating evidence. Petitioner was not prevented from presenting evidence of his poor relationship with his mother. She was present throughout trial and could have been called to testify concerning any alleged statements. Additionally, Pam Creswell could have provided first-hand information about her conversation with Petitioner. Petitioner is not entitled to relief on this claim.

Petitioner's second allegation of error is that the trial court should have accepted his instruction that omitted the requirement that the jury consider whether Petitioner's mental impairment at the time of the crime was substantial. On direct appeal, the Mississippi Supreme Court noted that a “catchall” mitigating instruction was given in Petitioner's case, leaving the trial court free to reject disputed instructions on mitigating factors. See Turner I, 732 So.2d at 950-52. Errors in a state court's jury instructions do not form the basis for habeas relief unless the failure to give the proffered instruction “by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); see also Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The United States Supreme Court has held that where a sentencing scheme sufficiently narrows death eligible offenses and does not limit the sentencer's consideration of relevant mitigating circumstances, it is constitutionally permissible. See Blystone v. Pennsylvania, 494 U.S. 299, 308-09, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). In Blystone, the Court considered the argument that the trial court's instruction that the jury could consider whether the defendant suffered “extreme” or “substantial” impairments precluded the jury's consideration of lesser degrees of such impairments. See id. at 308. In rejecting the claim and finding that the defendant's presentation of relevant mitigating circumstances was not limited, the Court noted that the jury was instructed that it could consider “any other mitigating matter concerning the character or record of the defendant, or the circumstances of his offense.” Id.; see also Brown v. Payton, 544 U.S. 133, 141-42, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005); Boyde v. California, 494 U.S. 370, 382, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). The jury in this case was instructed to consider “catch-all” evidence. Where the jury is not precluded from considering constitutionally relevant evidence, there is no requirement that the jury be instructed on specific mitigating factors. See Buchanan v. Angelone, 522 U.S. 269, 276-79, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998). Petitioner has not demonstrated that the Mississippi Supreme Court's decision was either contrary to, or involved an unreasonable application of, clearly established federal law, and this claim shall be dismissed.

III. Lethal injection protocol

Petitioner contends that his sentence to die by lethal injection creates an unreasonable risk of inflicting serious harm in violation of the Eighth and Fourteenth Amendments to the United States Constitution, as the State's protocol lacks the necessary medical safeguards. He maintains that it is unclear whether the State has fully disclosed its accurate protocol for executions by lethal injection, and that the protocol itself has been a “moving target.” Petitioner notes that a set of protocols was disclosed in response to an Open Records Act request in 2006, and another protocol was disclosed in 2008 as part of the federal law suit, Walker v. Epps, No. 4:07-cv-00176-WAP (N.D.Miss). Petitioner argues that this Court should grant him discovery to determine whether the protocol disclosed in the Walker case is, in fact, the accurate and entire protocol. He also maintains that as the factual basis for the challenge to the protocol was not disclosed until 2006, this Court should stay his petition and allow Petitioner to exhaust this claim in a successive State post-conviction petition.

Petitioner's claim challenging the method by which the State of Mississippi plans to execute him is improper in a habeas action, as the claim does not concern the fact or duration of his sentence. See Hill v. McDonough, 547 U.S. 573, 583-84, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). Even if the Court were to consider this claim cognizable in federal habeas review, it is barred for Petitioner's failure to raise the issue in State court. See 28 U.S.C. § 2254(b)(1); Coleman, 501 U.S. at 735 n. 1. Moreover, Petitioner's conviction became final on November 1, 1999, when his petition for writ of certoriari was denied. See Turner v. Mississippi, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999). Petitioner would not be entitled to review of this claim if the Court treated it as a § 1983 claim, as Mississippi's three-year statute of limitations would bar the action. See Walker v. Epps, 550 F.3d 407, 414 (5th Cir.2008). Petitioner is not entitled to relief on this claim, and it shall be dismissed.

Certificate of Appealability

Under the AEDPA, Petitioner must obtain a certificate of appealability (“COA”) before he can appeal this Court's decision. 28 U.S.C. § 2253(c)(1). A COA will not issue unless Petitioner makes “a substantial showing of the denial of a constitutional right” of any claim rejected on its merits, which Petitioner may do by demonstrating that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where a petitioner's claim has been denied on procedural grounds, Petitioner must additionally demonstrate that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. This Court must issue or deny a COA upon its entry of an order adverse to Petitioner. See Rule 11 of the Rules Governing § 2254 Cases. The Court, resolving in Petitioner's favor any doubt as to whether a COA should issue, determines that Petitioner has not demonstrated that reasonable jurists would debate its procedural or substantive rulings on the claims raised by Petitioner. Therefore, a certificate of appealability will not issue from this decision.

Conclusion

For the reasons set forth above, Petitioner has not demonstrated that the denial of his State petition was contrary to, or involved an unreasonable application of, clearly established federal law, nor has the denial been shown to have been based on an unreasonable determination of facts in light of the evidence presented in the State court proceedings. Accordingly, it is hereby ORDERED that:

1. All federal habeas corpus relief requested by Petitioner is DENIED, and the instant petition shall be DISMISSED with prejudice.

2. Petitioner's request for an evidentiary hearing is DENIED.

3. All pending motions are DISMISSED as moot.

4. Petitioner is DENIED a Certificate of Appealability on all claims raised in the petition.

5. A separate Judgment in conformity with this Opinion and Order shall issue today. SO ORDERED.