                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 94-DP-01210-SCT
RONNIE LEE CONNER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:           7/27/90
TRIAL JUDGE:                HON. ROBERT BAILEY
COURT FROM WHICH APPEALED:  LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    ANDRE DEGRUY
                            JAMES W. CRAIG
                            JULIE ANN EPPS
ATTORNEYS FOR APPELLEE:     OFFICE OF THE ATTORNEY GENERAL
                            BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:          NA
NATURE OF THE CASE:         CRIMINAL - DEATH PENALTY - POST CONVICTION
DISPOSITION:                AFFIRMED - 6/13/96
MOTION FOR REHEARING FILED: 7/3/96
MANDATE ISSUED:             9/26/96




     EN BANC.


     McRAE, JUSTICE, FOR THE COURT:


               ON APPLICATION FOR LEAVE TO FILE MOTION TO VACATE

                          CONVICTION AND/OR DEATH SENTENCE

¶1. Ronnie Lee Conner was convicted of capital murder for the kidnap, robbery and murder of an elderly
woman, Celeste Brown, by a jury of the Lauderdale County Circuit Court. His conviction and death
sentence were affirmed by this Court in Conner v. State, 632 So. 2d 1239 (Miss. 1993), cert. denied,
Conner v. Mississippi, 115 S.Ct. 314 (Miss. 1994). We now deny Conner's motion for post-conviction
relief.

                                   STATEMENT OF THE CASE

¶2. Conner filed his Motion to Vacate Conviction and/or Death Sentence pursuant to Miss. Code Ann. §
99-39-7 (1994), the Mississippi Uniform Post-Conviction Collateral Relief Act, in the Lauderdale County
Circuit Court on December 2, 1994. By an order of this Court dated December 5, 1994, Conner's
December 7, 1994 execution date was postponed pending the outcome of his Application for Leave to File
Motion to Vacate Judgment and Death Sentence, Motion to Vacate Judgment and Death Sentence, and
Memorandum in Support Thereof.

¶3. In support of his motion, Conner now asserts:

      I. Conner's Right to Effective Assistance of Counsel at the Sentencing Phase was violated by his
      Attorney's Failure to Investigate, Prepare and Present Compelling Mitigation Evidence;

      II. Because His Counsel Was Ineffective in Failing to Object to the Prosecutor's Use of the
      Peremptory Challenges in a Racially Discriminatory Manner, Conner Is Entitled to an Evidentiary
      Hearing on the Question of Whether the Prosecutor's Use of Peremptory Challenges to Exclude
      Blacks from Conner's Trial Jury Was Race-Neutral;

      III. Conner Was Deprived of His Right to Effective Assistance of Counsel and Due Process of Law
      by Trial Counsel's Inadequate Voir Dire of Prospective Jurors;

      IV. Trial Counsel's Failure to Object and Otherwise Preserve Reversible Error Constitutes Ineffective
      Assistance of Counsel under Strickland;

      V. This Court's Refusal to Vacate Conner's Death Sentence after Willie v. State Established the
      Proper Statutory Use of the "Robbery" and "Pecuniary Gain" Aggravating Factors Deprived Conner
      of Meaningful Appellate Review.

¶4. Conner also filed a motion to proceed in forma pauperis. The State was granted a thirty-day extension
of time in which to respond, but no response was received. Conner's motion to proceed in forma pauperis
is denied.

                             ARGUMENTS AND DISCUSSION OF LAW

¶5. The first four issues Conner raises challenge the effectiveness at trial of his appointed attorney. To
succeed on these claims, he must satisfy the two-part test articulated in Strickland v. Washington, 466
U.S. 668 (1984) and adopted by this Court in Stringer v. State, 454 So. 2d 468 (Miss. 1984). Conner
bears the burden of showing (1) that counsel's performance was deficient, and (2) that his defense was
prejudiced by the deficient performance. Roland v. State, 666 So. 2d 747, 750 (Miss. 1995);
McQuarter v. State, 574 So. 2d 585, 687 (Miss. 1990); Stringer v. State, 454 So. 2d at 476.
Moreover, Conner must show that but for counsel's errors, the outcome of his case would have been
different. Nicolaou v. State, 612 So. 2d 1080, 1086 (Miss. 1992); Ahmad v. State, 603 So. 2d 843,
848 (Miss. 1992). He faces "a strong but rebuttable presumption that counsel's performance falls within the
broad spectrum of reasonable professional assistance." Moody v. State, 644 So. 2d 451, 456 (Miss.
1994).

¶6. On review, we look with deference upon counsel's performance, considering the totality of the
circumstances to determine whether it was both deficient and prejudicial. Moody, 644 So. 2d at 456;
Carney v. State, 525 So. 2d 776, 780 (Miss. 1988). If the petitioner raises questions of fact regarding
counsel's deficiencies or any prejudice resulting therefrom, he is entitled to an evidentiary hearing. Moody,
644 So. 2d at 456; Alexander v. State, 605 So. 2d 1170, 1173 (Miss. 1992). When we find that
counsel's performance was ineffective, the case will be remanded for a new trial. Moody, 644 So. 2d at
456.

                 I. Counsel's Failure to Investigate and Present Mitigating Evidence

¶7. Conner first asserts that his attorney was deficient in failing to develop and present evidence of his
mental illness during the sentencing phase of his trial. He contends that expert testimony that he was
schizophrenic with a history of psychotic episodes and not taking his medication at the time Celeste Brown
was murdered would have entitled him to instruct the jury to consider two additional mitigating factors
pursuant to Miss. Code Ann. § 99-19-101(6) when determining his sentence: that the offense was
committed while under the influence of extreme mental or emotional disturbance; and, that the capacity of
the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of
the law was substantially impaired. The State counters that Conner's attorney did not shirk his duty to
investigate his mental health, especially in light of the evaluation made in response to Conner's motion for a
mental examination.

¶8. The issue of Conner's mental health and low intelligence level arose in several contexts throughout the
course of his trial, as well as on direct appeal. Conner raised the matter in charging that the circuit court
erred in not ordering a competency hearing; that his sentence was disproportionate; that important mitigating
evidence was excluded; and that the circuit court erred in denying his motion to compel disclosure of
information regarding both aggravating and mitigating circumstances. Conner, 632 So. 2d at 1247-51,
1265, 1267, 1275. Conner was evaluated at Whitfield State Hospital in March, 1990 by order of the
circuit court. In relevant part, the evaluation stated that:

      The staff was unanimous in the opinion that he is competent to stand trial at the present time. He
      appears to have a rational as well as factual understanding of the charges against him and he appears
      capable of assisting his attorney in preparing a defense. With regard to his sanity at the time of the
      crime, the staff was unanimous in the opinion that he knew the difference between right and wrong in
      relation to his actions.

      Mr. Conner has been treated at the [Weems] Mental Health Center for a number of years and has a
      Schizophrenic diagnosis. We have retained this diagnosis, although he has shown few if any of the
      symptoms of this disorder during his stay in the hospital. He is on medication and this could account
      for the lack of symptoms. We have given him a diagnosis of Personality Disorder Not Otherwise
      Specified to reflect a long-standing pattern of social discomfort, excessive dependency, and a
      tendency to take out his anger in indirect and passive ways.

Conner, 632 So. 2d at 1251.

¶9. Conner relies primarily on Woodward v. State, 635 So. 2d 805 (Miss. 1993) to support his assertion
that his attorney's alleged failure to investigate and present evidence of his mental illness constitutes
ineffective assistance of counsel. In Woodward, as distinguished from the case sub judice, the attorney
presented Woodward's mental illness as the sole mitigating factor. Woodward, 635 So. 2d at 810. The
defense's sole witness throughout the case, who, in his affidavit, indicated that Woodward suffered from a
severe psychotic disorder at the time of the crime, was questioned by Woodward's attorney only as to the
results of his testing and not about the history or details of Woodward's illness. Noting the attorneys'
ineptitude, the Court noted:
      By not realizing that they could offer Dr. Thurman's testimony about the [sic] Woodward's mental
      illness without opening the door to unlimited character evidence, Woodward's trial counsel were
      ineffective. Having made a tactical decision to rely solely on mental illness as a mitigating
      factor, counsels' failure to offer all of the evidence they had was inexcusable.

Woodward, 635 So. 2d at 810. Similarly, in Lloyd v. Smith, 899 F.2d 1416 (5th Cir. 1990), a habeas
action upon which Conner also relies, the ineffectiveness of counsel issue arose from the petitioner's
attorney's ignorance of the law. The Fifth Circuit stated that:

      The district court wholly failed to address the state court's implicit finding that the failure to properly
      investigate stemmed, at least in part, from Hackman's ignorance as to the admissibility of
      statutory mitigating evidence of mental disease or defect which did not reach the level of
      insanity under the McNaughten rule. Had Hackman understood the relevance of mitigating
      evidence, an attempt to develop such testimony could have begun at an earlier stage.

Lloyd, 899 F.2d at 1425. The court further noted that the district court was correct in stating that Lloyd's
attorney had no duty to find an expert who would testify as he wished, but found such a statement to be
incongruous in light of the fact that "at least one of Lloyd's attorneys was wholly unaware of the admissibility
of statutory mitigating circumstances, such as mental disease or defect not rising to the level of insanity." Id.

¶10. As distinguished from Lloyd and Woodward, there is no indication that Conner's attorney acted in
ignorance of the law when he failed to call any mental health professionals as witnesses. Based on the
evaluation from Whitfield, supra, it hardly seems that further evidence of Conner's alleged personality
disorders was necessary. Further, the affidavits of the experts Conner now claims should have been called
to testify do little more than establish that he once had been diagnosed as schizophrenic, apparently failed to
take his medication on a regular basis and had a history of substance abuse.

¶11. With the benefit of hindsight, Conner's attorney concedes that, believing his client to be innocent, he
devoted all of his energies to the guilt phase of the trial and did not contact any mental health professionals
in preparation for the sentencing phase. By the time he realized that evidence of mental illness might be the
only hope for reducing Conner's sentence, he was unable to secure the necessary expert witnesses. While it
might be tempting to argue that Conner was prejudiced by his attorney's lack of foresight, Conner fails to
show that but for the presentation of evidence of his alleged mental illness, the outcome of his trial might
have been different. See Billiot v. State, 655 So. 2d 1, 17-18 (Miss. 1995)(rejecting argument that death
row inmate suffering from paranoid schizophrenia is not competent to be executed).

           II. Counsel's Failure to Object to Prosecutor's Use of Peremptory Challenges

¶12. On direct appeal, Conner complained that the State exercised its peremptory challenges against five
women, three of whom were black. We refused to address the issue because Conner raised no objections
to those challenges at trial. Conner v. State, 632 So. 2d 1239, 1264 (Miss. 1993). Conner now contends
that counsel was ineffective in failing to object to the State's peremptory challenges.

¶13. At least two of the jurors seated were black, as was one of the alternates, and five of the jurors, as
well as both alternates, were female. The State asserts that since it only used five of its twelve peremptory
challenges, had it sought to strike blacks from the jury, it had sufficient strikes remaining to do so.
¶14. For counsel's performance to be deemed ineffective, Conner must demonstrate that his case was
prejudiced by the failure to raise any challenges pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). To
establish that he was prejudiced, Conner must show:

      [H]e is member of a cognizable racial group, and that the prosecutor has exercised peremptory
      challenges to remove from the venire members of the defendant's race. Second, the defendant is
      entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute
      a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Finally
      the defendant must show that these facts and any other relevant circumstances raise an inference that
      the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96 (citations omitted). Conner makes no attempt to demonstrate that the State
exercised its peremptory challenges in a racially-discriminatory manner. Our reading of the record indicates
that the peremptory challenges all were made for race-neutral reasons.

¶15. We likewise reject Conner's reliance on Ex parte Yelder, 575 So. 2d 137, 139 (Ala. 1991), where
the Alabama Supreme Court held that "the failure of trial counsel to make a timely Batson objection to a
prima facie case of purposeful discrimination by the State in the jury selection process through its use of
peremptory challenges is presumptively prejudicial to a defendant." As distinguished from the case sub
judice, where the State exercised two or three of its peremptory challenges against blacks, the State, in
Yelder, had used its peremptory challenges to strike seventeen of eighteen black jurors, without any
objection by Yelder's attorney. Id. at 137. There being no prima facie case of purposeful discrimination,
Conner's attorney's failure to object to the State's peremptory challenges can hardly be said to be
presumptively prejudicial.

                              III. Counsel's Inadequate Voir Dire of Jurors

¶16. Conner next contends that counsel's voir dire of the jury was inadequate; to wit, although voir dire
covered fifty-three pages of the transcript, his attorney's questioning fills only three pages. The circuit court
and the prosecution thoroughly questioned the jury on all matters, particularly with regard to its scruples
about the death penalty. Conner's attorney then queried prospective jurors about any prejudices they might
harbor against a black man accused of murdering an elderly white woman; whether they could consider the
case objectively without being swept away by the emotional impact of the crime committed; and if they
could listen to both sides of the case with an open mind.

¶17. Conner relies on Moody v. State, 644 So. 2d 451 (Miss. 1994) for the proposition that counsel's
failure to conduct a lengthy voir dire renders his assistance ineffective. In contrast to the case sub judice,
where Conner's attorney asked questions which supplemented those posed by the court and the
prosecution, the attorney for Moody and Garcia merely stated, " I have no voir dire for the jury." The
record indicates that any additional questioning of the jurors by Conner's attorney would have been
redundant. Moreover, Conner does not indicate that he was prejudiced by his attorney's failure to conduct
a more extensive voir dire. Accordingly, there is no merit to this issue.

                            IV. Other Deficiencies in Counsel's Performance

¶18. On direct appeal, several assignments of error were found to be waived because they were not
properly preserved at trial. Conner specifically complains of his attorney's failure to request a lesser-
included offense instruction; his failure "to give meaningful closing arguments;" and his failure to object to an
"inflammatory line of questioning" on cross-examination. Conner, however, has failed to show that he was
prejudiced by counsel's performance.

                               a. The Lesser-Included Offense Instruction

¶19. Conner first asserts that counsel should have requested a lesser-included offense instruction on simple
murder. In Conner, we found that the evidence in the record did not support a lesser-included offense
instruction since "[t]he evidence of the three component crimes in the capital murder charge are so
intertwined as to be virtually inseparable." Conner, 632 So. 2d at 1255. See Mackbee v. State, 575 So.
2d 16, 23 (Miss. 1990)(lesser-included offense instruction required only "where a juror could not on the
evidence exclude the lesser-included offense beyond a reasonable doubt"). As we further found, any error
in failing to give a lesser-included offense instruction was cured by the inclusion of an instruction requiring
the jury to find Conner guilty beyond a reasonable doubt of every element of the capital crime with which he
was charged. Id. at 1255. Since the evidence did not support a lesser-included offense instruction, Conner
cannot show that he was prejudiced.

                                            b. Closing Arguments

¶20. Conner next contends that his attorney failed to object to the time limits placed on closing arguments
by the circuit court and as a result, did not even have time to summarize the evidence. He was allotted forty-
five minutes for the guilt phase and fifteen minutes for the sentencing phase. Conner, 632 So. 2d at 1276.
His attorney made no proffer of what would have been said, provided no indication that the time allotted
was inadequate and made no mention of the issue in his motion for a new trial. Id.

¶21. The length of time allotted for closing arguments is within the discretion of the trial court. Conner, 632
So. 2d at 1275-1276. Willie v. State, 585 So. 2d 660, 676 (Miss. 1991). Moreover, Conner fails to
suggest how a lengthier closing argument might have changed the outcome of his case. Therefore, this
argument likewise affords him no relief.

                      c. Failure to Object to "Inflammatory" Cross-Examination

¶22. On direct appeal, Conner asserted that the circuit court erred in allowing cross-examination during the
penalty phase of the trial about whether he had ever been convicted for displaying a weapon. Without
more, he now asserts that "[t]his Court should now reach the Hosford [v. State, 525 So. 2d 789 (Miss.
1988)] issue or, at the very least, remand this case to the circuit court for an evidentiary hearing." This is the
sum, substance and total content of his assertion. Absent any meaningful argument, this Court is not
obligated to entertain an assignment of error. Baine v. State, 604 So. 2d 249, 255 (Miss. 1992).

                               V. Prospective Application of Willie v. State

¶23. In his final assignment of error, Conner contends that this Court violated the principle of meaningful
appellate review by applying prospectively the finding of Willie v. State, 585 So. 2d 660, 661 (Miss.
1991) that a jury could not be instructed on both robbery and pecuniary gain as separate aggravating
circumstances. On direct appeal, Conner had argued that the circuit court erred in allowing as separate
aggravating factors robbery as well as pecuniary gain as a motive, asserting that the pecuniary gain
aggravator was vague and overbroad. Miss. Code Ann. § 99-39-21(3)(1994) provides that the doctrine of
res judicata applies to petitions for post-conviction relief. Section 99-39-21(2) further provides that:
      The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or
      theories shall constitute a waiver of all other state or federal legal theories which could have been
      raised under said factual issue; and any relief sought under this chapter upon said facts but upon
      different state or federal legal theories shall be procedurally barred absent a showing of cause and
      actual prejudice.

Thus, issues raised and decided on direct appeal cannot be raised again under the Post-Conviction Relief
Act using a different legal theory. Wiley v. State, 517 So. 2d 1373, 1377 (Miss. 1987); Mann v. State,
490 So. 2d 910 (Miss. 1986). Accordingly, this issue is procedurally barred.

                                               CONCLUSIONS

¶24. Conner fails to show that he was prejudiced by his attorney's performance or that but for the
inadequacies alleged, the outcome of the trial might have been different. Accordingly, we deny his motion
for post-conviction relief.

¶25. CONNER'S APPLICATION FOR LEAVE TO FILE MOTION TO VACATE
CONVICTION AND/OR DEATH SENTENCE DENIED.

LEE, C.J., PITTMAN, ROBERTS, SMITH AND MILLS, JJ., CONCUR. BANKS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER AND
SULLIVAN, P.JJ.

      BANKS, JUSTICE, DISSENTING:


¶26. Because I believe that Conner should have an opportunity to present his case to the trial court on the
question whether counsel rendered ineffective assistance with respect to the presentation of mitigation
evidence concerning Conner's mental state, I dissent.

¶27. In the absence of an evidentiary hearing, this Court is ill equipped to assess a claim based upon what
was available and not presented during the trial of a case and whether the failure to have presented it rises
to the level of ineffective assistance. What we know is that Conner has been diagnosed as suffering from
schizophrenia. We also know that he failed to present any medical testimony at trial. Counsel confesses that
his failure to further investigate and present evidence on this issue was due to his neglect of sentencing issues
in favor of concentrating on guilt issues. The extent of that neglect and the reasonableness of the choice of
priorities is a matter which should be assessed in the first instance by the trial court. I would grant the
petition to seek post-conviction relief in the trial court. See Woodward v. State, 635 So. 2d 805 (Miss.
1993); Loyd v. Smith, 899 F. 2d 1416 (5th Cir. 1990); Wilson v. Butler, 813 F. 2d 664, 671 (5th Cir.
1987); Jones v. Thigpen, 788 F. 2d 1101 (5th Cir. 1986).

PRATHER AND SULLIVAN, P.JJ., JOIN THIS OPINION.
