                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 98-DR-00708-SCT

HENRY CURTIS JACKSON, JR.

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          9/14/1991
TRIAL JUDGE:                               HON. GRAY EVANS
COURT FROM WHICH APPEALED:                 LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR PETITIONER:                   DAVID P. VOISIN
                                           ROBERT RYAN
ATTORNEY FOR RESPONDENT:                   OFFICE OF THE ATTORNEY GENERAL
                                           BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                         FRANK CARLTON
NATURE OF THE CASE:                        CIVIL - DEATH PENALTY - POST
                                           CONVICTION
DISPOSITION:                               PETITIONS FOR POST-CONVICTION
                                           COLLATERAL RELIEF, DENIED - 08/07/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       McRAE, PRESIDING JUSTICE, FOR THE COURT:


¶1.    Henry Curtis Jackson, Jr., was convicted in the Leflore County Circuit Court in 1991

of capital murder and sentenced to death for the stabbing deaths of four children, his nieces

and nephews. This Court affirmed his conviction and sentence on direct appeal. Jackson v.

State, 684 So.2d 1213 (Miss. 1996), rehearing denied, 691 So. 2d 1026 (Miss. 1996), cert.
denied, 520 U.S. 1215 , 117 S. Ct. 1703, 137 L.Ed. 2d 828 (1997).1 Jackson has filed a Petition

for Post Conviction Relief in the Circuit Court of Leflore County and an application for leave

to file motion to vacate conviction and/or death sentence which are presently before this

Court. His petition and application are denied.

                                                   F ACTS

¶2.     Jackson murdered four children, two of his nieces and two of his nephews, in an attempt

to steal money kept in his mother’s safe in her home.2 On the evening of November 1, 1990,

Jackson’s mother, Martha, and four of her older grandchildren went to church. Martha’s

daughter, Regina Jackson, stayed home with her two daughters, five-year-old Dominique



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

        2
         The facts are summarized from those as set forth in this Court’s opinion in Jackson’s direct
appeal. Jackson v. State, 684 So.2d 1213 (Miss. 1996).

                                                       2
whom Jackson murdered that night, two-year-old Shunterica whom Jackson murdered, and four

other of their nieces and nephews, three-year-old Antonio whom Jackson murdered and two-

year-old Andrew whom Jackson murdered, and eleven-year-old Sarah and one-year-old Andrea

who were severely injured during these murders but survived.

¶3.    While Regina and the children were at the house watching television, Jackson parked

his car two blocks away, walked to the house, and cut the outside telephone line. He then

knocked on the door and was allowed inside. While inside, he picked up the phone and

indicated it was not working. Regina headed to a neighbor’s house to place a call to check the

phone. Before going very far, Jackson told Sarah to call Regina back. Regina came back in

and, followed by her daughter Shunterica, sought Jackson in the kitchen. Jackson told Regina

to take Shunterica back into the television room. She did so and upon her return to the kitchen

Jackson grabbed her from behind. With one hand around her neck and one around her waist,

he walked her down the hall to the boys’ room. He asked for her paycheck. Regina told him she

had no money. Jackson then asked for the combination to his mother’s safe. When Regina

said she did not know it, he pulled out knives and shoved them into her throat and waist. Regina

yelled for eleven-year old Sarah, who came running and jumped on Jackson's back. The three

struggled, during which Jackson told him that he had to kill them. Sarah begged him to just get

the safe and leave.

¶4.    Meanwhile, the smaller children had followed Sarah down the hall, and Jackson called

them into the room where they obediently remained. He then took Regina into an adjacent

room and tried to open the footlocker where he believed the combination to the safe was kept.

Jackson then began stabbing Sarah in the neck, then took Regina and Sarah into the boys' room


                                               3
where he tried to tie them up. Regina, who had already been stabbed several times, picked up

some iron rods that Jackson had brought in from the bathroom, and started hitting him with

them. Jackson then went and picked up the baby, one-year old Andrea, and used her as a shield.

Regina relinquished the rods and let him tie her up with a belt. He stabbed her again in the neck.

While Regina watched, Jackson picked up her daughter, two-year old Shunterica, by the hair,

stabbed her, killed her, and laid her on a bed.

¶5.    While Regina and Sarah were struggling to stay alive, Jackson started dragging the safe

down the hall which awakened five-year old Dominique. Dominique came down the hall calling

for her mother, at which time, as Regina testified, Jackson told Dominique that he loved her,

but then stabbed her, killed her and threw her on the floor. After killing Dominique, Jackson

walked over to Regina and again shoved a knife in her neck. Regina then pretended she was dead.

¶6.     Sarah tried to comfort her baby sister, Andrea, and told three-year old Antonio to run

for help. Jackson called Antonio back. Regina had fainted by this time and Jackson was trying

to wake her up. He then grabbed Sarah again and began stabbing her in the neck. After the knife

broke off in her neck, he ran to the kitchen, retrieved another knife, stabbed her again and threw

her on a bed. Sarah, too, then pretended she was dead. She heard Antonio yelling for help and

saw Jackson kneeling over him. While Sarah did not actually see Jackson stabbing him, she

testified that " I saw his hand moving when he was over him. I didn't see but I knew he was doing

something cause my little brother was hollering." She likewise did not witness the stabbing of

two-year old Andrew, but when she saw him, "[h]e was on the bottom of the bed and his eyes

were bulging and his mouth was wide open." Sarah was able to jump from the bed and escape




                                                  4
out the front door. She hid behind a tree across the street and watched as Jackson came

outside, looked around, and went back inside.

¶7.    Upon Jackson’s last view of the room, Regina and Andrea appeared dead, and the four

children, five-year-old Dominique, three-year-old Antonio, two-year-old Shunterica and two-

year-old Andrew, were all dead.

¶8.      Shortly after the murders, Angelo Geens, Martha Jackson’s cousin and neighbor,

returned to his home at about 8:30 p.m. Sarah ran to him from where she had been hiding and

told him that Regina and the others were in the house and that her uncle Jackson had killed

them all. Geens carried her into his house and called the police and an ambulance. Deputy

Sheriff J.B. Henry and Deputies Tindall, Berdin and Fondren arrived at the scene and

discovered the bodies of the four children. Leflore County Coroner James R. Hankins

pronounced the four children dead at the scene. From the house, the bodies of Shunterica,

Dominique, Andrew, and Antonio were sent to the Deputy State Medical Examiner for forensic

pathology examinations.

¶9.    Meanwhile, Jackson had become the subject of an extensive manhunt. While still at the

Jackson residence, Deputy Sheriff Tindall received a call from the Highway Patrol regarding

a wrecked car in Eupora just fifty yards from the site where the Eupora Police Department had

been conducting a routine license check. The car, a 1977 green Monte Carlo, bore a license

tag registered to Martha Jackson's 1973 brown Ford station wagon. A wallet containing

Jackson's identification was found on the front console, and his own license tag as well as a

long, dark trench coat were found in the trunk. Jackson had abandoned the car when he saw the




                                                5
roadblock and took off a foot. Eluding police, Jackson jumped a train from Eupora to West

Point.

¶10.     On Monday morning, November 5, 1990, Jackson turned himself in to the West Point

Police Department. Jackson gave a statement to Leflore County Sheriff Ricky Banks, who had

been summoned to West Point. Jackson stated that, knowing his mother would be at church,

he had gone to her house to get the safe because he needed more money to pay his bills. He

had brought a kitchen knife with him that was in the car and when he heard someone in the

house, went around the back to cut the telephone line. After stabbing Regina and the children,

he tried to move the safe and to find a second safe she had mentioned. Noticing lights at the

house across the street, he then climbed out the bathroom window and fled to his car.

¶11.     Dr. Steven Hayne, who performed autopsies on the children, testified that Shunterica

suffered three stab wounds to the neck and two shoulder abrasions. Her jugular vein was

severed, leading Dr. Hayne to opine that she ultimately bled to death. Andrew sustained three

stab wounds to the neck. The first cut through the carotid artery and the jugular vein. Another

missed the trachea, but went into his backbone and severed the spinal cord. Dr. Hayne opined

that such an injury "would require a considerable amount of strength" and noted the presence

of a pinpoint hemorrhage caused by force on the child's neck. Dominique, too, died of multiple

stab wounds to the neck. Three of the four stab wounds cut her jugular vein and trachea.

Antonio suffered four stab wounds and two slash wounds which cut through his trachea. Dr.

Hayne determined, however, that Antonio died from a stab wound that cut through his heart.

¶12.     Sarah underwent surgery for five serious stab wounds to her abdomen, chest and neck,

including a lacerated windpipe. Regina suffered five stab wounds to her neck. One-year-old


                                              6
Andrea suffered a single penetrating stab wound to her neck which caused a tracheal injury and

severely damaged her spinal cord. As a result, she is unable to walk and has no fine motor

control in her arms.

¶13.   On March 12, 1991, Jackson was indicted on four counts of capital murder, two counts

of aggravated assault and one count of armed robbery by a grand jury of the Leflore County

Circuit Court. Under counts one through four, Jackson was charged with the deaths of two-

year-old Shunterica, five-year- old Dominique, three-year-old Antonio and two- year-old

Andrew. In each count, Jackson was charged with killing while engaged in the commission of

the crime of felonious abuse and/or battery of a child in violation of Section 97-5-39(2),

Mississippi Code Annotated of 1972, as amended, or in any attempt to commit such felony;

in violation of Section 97-3-19(2), Mississippi Code Annotated of 1972, as amended. Counts

five and six charged Jackson with the armed robbery of Regina Jackson and with "unlawfully,

wilfully, feloniously and purposely caus[ing] bodily injury to Regina Jackson, a human being,

by stabbing said Regina Jackson with a deadly weapon, to wit: a knife." Under Count seven,

Jackson was likewise was charged with the stabbing of Sarah. Jackson was arraigned on April

29, 1991, and entered pleas of not guilty on all seven counts of the indictment.

¶14.   Trial was set for August 26, 1991. During voir dire, Jackson's attorney and the court

questioned the jurors regarding their exposure to the media coverage of the murders,

especially during the days immediately before the trial. Based on the responses, the court

advised Jackson's attorney that if he sought a change of venue it would be considered. On

August 29, 1991, the court entered an order changing venue to Copiah County and setting the

trial for September 9, 1991. The Copiah County jury found Jackson guilty on all seven counts


                                              7
and sentenced him to death on each of the four capital murder counts. On direct appeal we

affirmed Jackson’s conviction and sentence. Jackson v. State, 684 So.2d 1213 (Miss. 1996),

rehearing denied, 691 So. 2d 1026 (Miss. 1996), cert. denied, 520 U.S. 1215, 117 S. Ct.

1703, 137 L.Ed. 2d 828 (1997)

¶15.   Jackson collectively raises in his petition and application twenty alleged violations of

his federal and state constitutional rights. Duplicative claims are incorporated accordingly.

                                   STANDARD OF REVIEW

¶16.   Under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann.

§§ 99-39-1 to -29 (Rev. 2000 & Supp. 2002), post-conviction review “provide[s] prisoners

with a procedure, limited in nature, to review only those objections, defenses, claims,

questions, issues or errors which in practical reality could not be or should not have been

raised at trial or on direct appeal.” Id. § 99-39-3(2) (Supp. 2002); Cabello v. State, 524 So.2d

313, 323 (Miss. 1988). When claims which could have been but are not presented to the trial

court or to the Supreme Court on direct appeal, the claims will not be heard on post conviction

review absent cause and actual prejudice. Lockett v. State, 614 So.2d 888, 893 (Miss. 1992).

Additionally, “[t]he doctrine of res judicata shall apply to all issues, both factual and legal,

decided at trial and on direct appeal.” Miss. Code Ann. § 99-39-21(3) (Supp. 2002). In

Lockett, this Court reiterated:

       The procedural bars of waiver, different theories, and res judicata and the
       exception thereto as defined in Miss. Code Ann. §§ 99-39-21(1-5) are
       applicable in death penalty PCR Applications. Irving v. State, 498 So.2d 305
       (Miss.1986); Evans v. State, 485 So.2d 276 (Miss.1986). Rephrasing direct
       appeal issues for post-conviction purposes will not defeat the procedural bar of
       res judicata. Irving v. State, 498 So.2d 305 (Miss.1986); Rideout v. State, 496
       So.2d 667 (Miss.1986); Gilliard v. State, 446 So.2d 590 (Miss.1984). The

                                               8
       Petitioner carries the burden of demonstrating that his claim is not procedurally
       barred. Miss. Code Ann. §§ 99-39-21(6) (Supp.1991); Cabello v. State, 524
       So.2d 313, 320 (Miss.1988). However, "an alleged error should be reviewed, in
       spite of any procedural bar, only where the claim is so novel that it has not
       previously been litigated, or, perhaps, where an appellate court has suddenly
       reversed itself on an issue previously thought settled." Irving v. State, 498 So.2d
       305, 311 (Miss.1986).
614 So.2d at 893 (footnote omitted).3



¶17.   This Court has made clear that a petitioner seeking post-conviction relief cannot be

allowed to relitigate the same issues, nor may issues not raised on direct appeal or at the trial

court be reviewed. Such claims are procedurally barred.

¶18.   Excepted from this prohibition, however, are:




       3
        Miss. Code Ann. § 99-39-21 (Supp. 2002) states in its entirety:

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


                                                      9
        those cases in which the prisoner can demonstrate either that there has
        been an intervening decision of the Supreme Court of either the State of
        Mississippi or the United States which would have actually adversely
        affected the outcome of his conviction or sentence or that he has
        evidence, not reasonably discoverable at the time of trial, which is of
        such nature that it would be practically conclusive that had such been
        introduced at trial it would have caused a different result in the
        conviction or sentence.
Miss. Code Ann. §§ 99-39-23(6) & -27(9) (Supp. 2002). In grounds 1, 2, and 15, Jackson

alleges claims based on an intervening change in the law that did not become ripe until after

his direct appeal was decided.4 These issues will be addressed accordingly.

¶19.    Finally, Jackson has raised ineffective assistance of counsel claims, the standards of

reviewing which are also well-settled. As this Court stated in Woodward v. State, 843 So.2d

1 (Miss. 2003):

                "The benchmark for judging any claim of ineffectiveness [of counsel]
        must be whether counsel's conduct so undermined the proper functioning of the
        adversarial process that the trial cannot be relied on as having produced a just
        result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064,
        80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel's
        performance was deficient and that the deficiency prejudiced the defense of the
        case. Id. at 687, 104 S.Ct. at 2064. "Unless a defendant makes both showings,
        it cannot be said that the conviction or death sentence resulted from a
        breakdown in the adversary process that renders the result unreliable." Stringer
        v. State, 454 So.2d 468, 477 (Miss.1984), citing Strickland, 466 U.S. at 687,
        104 S.Ct. at 2064. The focus of the inquiry must be whether counsel's assistance
        was reasonable considering all the circumstances. Id.
               Judicial scrutiny of counsel's performance must be highly deferential.
        (citation omitted) ... A fair assessment of attorney performance requires that
        every effort be made to eliminate the distorting effects of hindsight, to


        4
          After decision in Jackson’s direct appeal, this Court granted relief in Kolberg v. State, 704 So.2d
1307 (Miss. 1997), based on an issue concerning the felony child abuse statute, which was identical to an
issue raised in Jackson’s direct appeal. In ground 2, petitioner relies on the intervening decision of West v.
State, 725 So.2d 872, 895 (Miss. 1998). Ground 15 rests on King v. State, 784 So. 2d 884 (Miss. 2001).
There, this Court held that it was error for a trial judge to instruct the jury that it was not to be swayed by
sympathy.

                                                      10
       reconstruct the circumstances of counsel's challenged conduct, and to evaluate
       the conduct from counsel's perspective at the time. Because of the difficulties
       inherent in making the evaluation, a court must indulge a strong presumption that
       counsel's conduct falls within the wide range of reasonable professional
       assistance; that is, the defendant must overcome the presumption that, under the
       circumstances, the challenged action "might be considered sound trial strategy."
       Stringer, 454 So.2d at 477, citing Strickland, 466 U.S. at 689, 104 S.Ct. at
       2065. Defense counsel is presumed competent. See Finley v. State, 725 So.2d
       226, 238 (Miss.1998), quoting Foster v. State, 687 So.2d 1124, 1130
       (Miss.1996). See also Johnson v. State, 476 So.2d 1195, 1204 (Miss.1985).
       Then, to determine the second prong of prejudice to the defense, the standard
       is "a reasonable probability that, but for counsel's unprofessional errors, the
       result of the proceeding would have been different." Mohr v. State, 584 So.2d
       426, 430 (Miss.1991). This means a "probability sufficient to undermine the
       confidence in the outcome." Id. The question here is whether there is a
       reasonable probability that, absent the errors, the sentence--including an
       appellate court, to the extent it independently reweighs the evidence--would
       have concluded that the balance of the aggravating and mitigating circumstances
       did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.
           There is no constitutional right then to errorless counsel. Cabello v. State,
       524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430
       (Miss.1991) (right to effective counsel does not entitle defendant to have an
       attorney who makes no mistakes at trial; defendant just has right to have
       competent counsel). If the post-conviction application fails on either of the
       Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281
       (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991). Davis v. State, 743
       So.2d 326, 334 (Miss.1999), citing Foster v. State, 687 So.2d 1124, 1130
       (Miss.1996).
843 So. 2d at 7.

                                   LAW AND ANALYSIS

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

¶20.   Jackson claims he was entitled to a manslaughter instruction. This claim was raised on

direct appeal in two separate propositions and decided adversely to Jackson. See 684 So.2d

at 1226-28, 1228-29. Therefore, the claim is res judicata and cannot be relitigated. Miss.

Code Ann. § 99-39-21(3). However, Jackson claims that this Court’s decision in Kolberg v.

                                             11
State,704 So. 2d 1307 (Miss. 1997), is an intervening decision which allows him to raise the

claim again.

¶21.   In Jackson’s direct appeal, this Court, relying on Butler v. State, 608 So.2d 314 (Miss.

1992), decided adversely to Jackson on the manslaughter instruction issue. In Butler, this

Court held that failure to give manslaughter instruction was overwhelmingly prejudicial where

jury ultimately found that defendant had caused child's death, but not that he either attempted

to kill child or intended death. Id. at 320. Butler was charged with the murder of her child

after the child presented to the hospital with severe internal injuries and died several days later.

Butler argued that the CPR efforts caused the child injuries. Experts disagreed. Butler was

indicted for capital murder under the felony child abuse statute. In Jackson’s direct appeal,

this Court distinguished Butler and held that “[a] lesser-included offense instruction is

required only "where a reasonable juror could not on the evidence exclude the lesser-included

offense beyond a reasonable doubt." Jackson, 684 So.2d at 1228 (citing Mackbee v. State,

575 So.2d 16, 23 (Miss.1990); Boyd v. State, 557 So.2d 1178, 1181 (Miss.1989)).

¶22.   Following Jackson, this Court again relying on Butler ruled in Kolberg, a case almost

factually identical to Butler, that a trial court’s failure to provide a manslaughter instruction

in addition to the child abuse/capital murder instruction was reversible error because the

elements of each crime were identical. 704 So.2d at 1315. Specifically, the jury ultimately

found that Kolberg had caused the child’s death, but it did not find that he had either attempted

to kill the child, or intended that it should happen. Thus, it was apparent that the jury found the

elements of the crime of manslaughter. However, they were not given that option at the guilt



                                                12
phase because the trial court erroneously refused to give a manslaughter instruction. Id. at

1316.

¶23.    Kolberg announced no new rule of law that would adversely affect the conviction or

sentence in the present case. It is not an intervening decision. It represents, rather, an

application of existing law, Butler. Butler and Kolberg are almost factually identical, two

cases in which manslaughter instructions were appropriate based on the facts; the present case

is entirely distinguishable. Id. at 1315. The Butler precedent was available at the time

Jackson’s case was considered on direct appeal; it was employed by this Court. This Court

distinguished Butler from the factual situation in Jackson’s case and denied relief.

¶24.    Further, this Court has since limited the reach of Butler to cases where there is a

request by the defendant and there is evidence of manslaughter. See Berry v. State, 703 So.

2d 269, 279-80 (Miss. 1997). While there was a request in the present case for a

manslaughter instruction, there was no evidence of manslaughter.

        Jackson’s statement to police indicates that he planned the robbery
        believing that his mother and the rest of the household would be at church.
        His attorney conceded that the only evidence to support a heat of passion
        manslaughter instruction was that Jackson had gotten into a fight with
        Regina because she did not know the combination to the safe. However,
        although he used Andrea as a shield while he and Regina were struggling,
        there is no evidence that he stabbed the baby or killed the children at that
        time. Especially in light of the comment to Regina that he had come to
        kill them previously and was going to kill them that night, we find no basis
        for the requested instruction.

Jackson, 684 So.2d at 1228. As this Court found, there was no evidence of manslaughter on

which to base granting Jackson a manslaughter instruction. For this and the above cited reasons,




                                               13
Kolberg is not an intervening decision that would allow the relitigation of a claim that is res

judicata. Jackson’s claim for relief on this ground is without merit and is therefore denied.

        2.     Whether Jackson’s death sentence violates the Eighth and
               Fourteenth Amendments of the U.S. Constitution and analogous
               provisions of the Mississippi Constitution and Miss. Code § 99-19-
               107(7).

¶ 25. Jackson submits that since the jury did not find that he “intended” to kill, he was not

death eligible, and therefore his death sentence is unconstitutional pursuant to Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed 2d 1140 (1982), and West v. State, 725 So.2d

872 (Miss. 1998), and, that it violates Miss. Code Ann. § 99-19-101(7) (Rev. 2000).

¶ 26. This claim was not raised at trial or on direct appeal and is therefore barred by the

provisions of Miss. Code Ann. § 99-39-21(1). See Wiley v. State, 517 So.2d 1373, 1377-78

(Miss. 1987). Therefore, this claim cannot be raised for the first time in a post conviction

application unless Jackson can show cause and actual prejudice. Miss. Code Ann. § 99-39-

21(4) & (5).

¶27.    Alternatively, the claim is without merit. In Enmund, the United States Supreme Court

held:

        [I]t is for us ultimately to judge whether the Eighth Amendment permits
        imposition of the death penalty on one such as Enmund who aids and
        abets a felony in the course of which a murder is committed by others
        but who does not himself kill, attempt to kill, or intend that a killing
        will take place or that lethal force will be employed. We have
        concluded, along with most legislatures and juries, that it does not.

458 U.S. at 797 (emphasis added).




                                              14
¶28.   This holding was reiterated in Schad v. Arizona, 501 U.S. 624, 659, 111 S. Ct. 2491,

115 L.Ed. 555 (1991), stating that “in order for the death penalty to be imposed for felony

murder, there must be a finding that the defendant in fact killed, attempted to kill, or

intended that a killing take place or that lethal force be used. Enmund v. Florida, 458 U.S.

782,797 (1982).” Additionally, these requirements have been reiterated in numerous Supreme

Court cases since. The finding of one of these four factors is all that is required by Enmund.

To satisfy the Eighth and Fourteenth Amendments following the decision in Enmund, the

Mississippi Legislature enacted Miss. Code § 99-19-101(7) (Rev. 2000). See Russell v.

State, 670 So.2d 816, 834 (Miss. 1995) (this section was enacted in 1983 in obvious

response to Enmund v. Florida). Miss. Code Ann. § 99-19-101 (7) (Rev. 2000) provides:

       In order to return and impose a sentence of death the jury must make a
       written finding of one or more of the following:

         (a) The defendant actually killed;
         (b) The defendant attempted to kill;
         (c) The defendant intended that a killing take place;
         (d) The defendant contemplated that lethal force would be employed.

¶29.   Jackson contends that pursuant to this Court’s decision in West v. State, 725 So.2d 872

(Miss. 1998), however, the jury was required to find not only that he “actually killed” but

“intended to kill” to justify the imposition of the death penalty. In West, this Court held that

“to the extent that the capital murder statute allows the execution of felony murderers, they

must be found to have intended that the killing take place or that lethal force be employed

before they can become eligible for the death penalty, pursuant to Enmund v. Florida, 458

U.S. 782, 796, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)." West v. State 725 So.2d at 895.

                                              15
Further, “the jury cannot return a death sentence at all if it cannot conclude that a capital

defendant intended the death of his victim.” Id.

¶30.   We observe that this language is contrary to the requirements of Enmund, Section 99-

19-101(7), and the other case law of this Court interpreting this statute. This Court has held

prior to West, and following West, that the State is required to prove at least one of the factors

enumerated beyond a reasonable doubt during the sentencing phase of the trial. Jordan v.

State, 786 So.2d 987, 1030 (Miss. 2001); Smith v. State, 724 So.2d 280, 297 (Miss. 1998);

Holland v. State, 705 So.2d 307, 327 (Miss. 1997). And this is all that Enmund requires.

¶31.   The Jackson jury found that Jackson “actually killed the victim,” and that he “attempted

to kill the victim.” Under Miss. Code. Ann. § 99-19-101(7) and the decisions of this Court as

well as the Supreme Court of the United States, this was enough to impose the death penalty

in the present case. This Court has held that the jury can be instructed on all of these factors

at the conclusion of the sentencing phase and may properly find one or all. Jordan v. State,

786 So.2d at 1026. This was made absolutely clear in this Court’s decision in Watts v. State,

733 So.2d 214 (Miss. 1999), decided after West. Id. (Defendant could be sentenced to death

based on finding that defendant actually killed victim, and jury did not have to make any further

finding that defendant attempted to kill, intended to kill, or contemplated use of lethal force.

Code 1972, §§ 99-19-101(7)).

¶32.   Inasmuch as Jackson’s cited portion of West is regarded as legal precedent, rather than

dicta, it misstates the law. We clarify that neither Enmund nor Section 99-19-101(7) nor the




                                               16
according decisions of this Court require that the jury find that the defendant “intended” to kill

in order to impose the death penalty upon a felony murder conviction.

¶33.    Jackson further contends that if this Court does not grant relief on this point it would

be a violation of his due process and equal protection rights. No capital defendant, including

West, however, has ever obtained relief from this Court on the misstatement of the law in

West.

¶34.    This claim is barred for failure to raise the claim at trial and on direct appeal. Miss.

Code Ann. § 99-19-21(1). It cannot be raised here for the first time. Alternatively, the claim

is without merit. Jackson’s request for relief on this basis is therefore denied.


        3.     Whether Jackson’s eligibility for the Death Penalty based on
               felonious abuse and/or battery of a child violated his Eighth and
               Fourteenth Amendment rights under the U.S. Constitution.

¶35.    Jackson next contends that the Mississippi death penalty scheme, as a whole, and the

provisions relating to child abuse/battery capital murder are unconstitutional because they fail

to narrow the death eligible class as required by Zant v. Stephens. 462 U.S. 862, 877, 103

S.Ct. 2733, 77 L.Ed. 2d. 235 (1983) (states’ death penalty schemes “must genuinely narrow

the class of persons eligible for the death penalty and must reasonably justify the imposition

of a more severe sentence on the defendant compared to others found guilty of murder.”).

¶36.    Miss. Code Ann. § 97-3-19(2)(f) provides in pertinent part:

               (2) The killing of a human being without the authority of law by any
               means or manner shall be capital murder. . .
               (f) [w]hen done with or without any design to effect death, by any person
               engaged in the commission of the crime of felonious abuse and/or
               battery of a child. . . .


                                           17
Miss. Code Ann. § 97-3-19(2)(f) (Rev. 2000). Specifically, Jackson asserts that the

Mississippi scheme is too broad in that it makes death eligible one who kills negligently or

accidentally as long as the killing occurred during a felony. Under the child abuse/battery

capital murder provision, one is death eligible regardless of intent to kill. Additionally, Jackson

contends that the felony child abuse/battery provision unconstitutionally authorizes the death

penalty in circumstances in which it is disproportionate to the crime.

¶37.   As with the previous claim, this claim is barred because it was not raised at trial or on

direct appeal. Nor can Jackson show cause and actual prejudice to overcome this bar. Further,

this claim as it relates to the use of the underlying felony as an aggravating factor was decided

against Jackson on direct appeal. 684 So.2d at 1235-36. Thus, this portion of this claim is

barred as res judicata and cannot be relitigated here. Miss. Code Ann. § 99-39-21(3).

¶38.   Alternatively, on the merits, this Court has repeatedly held that “Mississippi’s capital

sentencing scheme, as a whole, is constitutional. Simmons v. State, 805 So.2d 452, 496-

97(Miss. 2001). See also Puckett v. State, 737 So.2d 322, 363 (Miss. 1999); Woodward v.

State, 726 So.2d 524, 528 (Miss. 1997). Further, this Court held in 1999 that Section 97-3-

19(2)(f) is constitutional notwithstanding that it does not require deliberate design. Miller

v. State, 748 So.2d 100, 103 (Miss. 1999). This claim is without merit.


       4.      Whether Jackson was denied his rights to an independent, conflict-
               free, reliable and competent mental health evaluation.

¶39. Jackson next claims that since Michael Whelan, Ph.D., was employed by the Mississippi

Department of Corrections (MDOC) and had treated Jackson for depression previously, that


                                                18
he was laboring under a conflict of interest. Jackson contends therefore that Dr. Whelan could

not produce an independent, reliable and competent examination. Jackson also raises this issue

in his Application for Leave to file Motion to Vacate Conviction and or Death Sentence in

issues one and two therein.

¶40.    This claim was raised at trial, after which Jackson was granted his motion for an

additional mental evaluation. This claim was also raised on direct appeal in the context of

Jackson’s claim that the trial court erred in failing to grant a continuance to obtain an

independent examination. This Court found no error on direct appeal. This claim, having been

raised and addressed on a different legal and factual theory is nonetheless barred from

relitigation. Miss. Code Ann. § 99-39-21(2). Further, since the trial court granted relief on

the claim that there was a conflict, there can be no error. This claim cannot be relitigated. ¶41.

Alternatively, on the merits, in Brown v. State, 798 So.2d 481 (Miss. 2001) this Court held

upon a similar claim that a petitioner “is not constitutionally entitled to the effective

assistance of an expert witness. Wilson v. Greene, 155 F.3d 396, 401(4th Cir. 1998). The

issue is without merit.” 798 So.2d at 499.

¶42.   As to Dr. Whelan’s competence, he has been qualified, recognized and accepted as

psychology expert by the courts of this State. Jackson has produced the affidavit of Dr. Chris

Lott, however, who states that Dr. Whelan’s reports were ineffective in that they did not have

sufficient family input to adequately assist in developing mitigation evidence. However, Dr.

Whelan suggested three areas of possible mitigation in his report and Dr. Lott does not even

suggest any other possible area.

¶43.   This present claim is likewise without merit.


                                               19
       5.      Whether Jackson was compelled to incriminate himself by
               submitting to an examination by Dr. Whelan.

¶44.   Jackson claims he was compelled to incriminate himself by submitting to Dr. Whelan’s

evaluation. This claim was not raised at trial or on direct appeal and is therefore barred from

consideration here. Miss. Code Ann. § 99-39-21(1). Further, Jackson has not demonstrated

any cause and actual prejudice in attempting to overcome this bar.

¶45.   Alternatively on the merits, Jackson’s claim is based merely on Dr. Whelan’s

conclusion that Jackson’s story about how he ended up in Greenwood the night of the murders

was a falsehood. The transcript makes clear that this conclusion was not based upon Dr.

Whelan’s prior treatment of Jackson. Having told the doctor why he was in Greenwood that

night once, and, having repeated the same story on other occasions, is not self incrimination.

Dr. Whelan clearly states in the record that he based his conclusion on the statement of the

victims and Jackson’s confession given to law enforcement.

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

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

¶47.   Jackson claims that attorney C. Jackson Williams, who filed the petition for rehearing

in this case, was ineffective in failing to point out that footnote four of this Court’s opinion

on direct appeal was incorrect as it related to Dr. Whelan’s employment with the Department

of Corrections, and that this Court failed to address the issue of Jackson being in his prison

attire in front of the jury venire.




                                              20
¶48.   As to Dr. Whelan’s employment status, at trial, Dr. Whelan testified that he worked for

the MDOC. On direct appeal, counsel for Jackson challenged the circuit court’s refusal to

allow him to question Dr. Whelan as to whether any complaints that Dr. Whelan had about

Jackson stemmed from Jackson’s reluctance to cooperate with an employee of the MDOC.

This Court denied relief on this claim and added a footnote in its opinion stating that the

“circuit court clarified that Dr. Whelan was not employed by the Department of Corrections,”

684 So. 2d at 1231 n.4, when in fact he was. This discrepancy notwithstanding, Jackson fails

to demonstrate deficient performance and actual prejudice in counsel’s failure to raise an issue

about it. Having failed to prove both of these factors, Jackson cannot sustain a claim of

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct.

2052, 80 L.Ed. 674 (1984). Jackson therefore is not entitled to relief on this claim.

¶49.   Although raised, the prison attire issue was not addressed in the direct appeal opinion.

Jackson now argues that his trial attire precipitated a “substantial danger of destruction in the

minds of the jury of the presumption of innocence.” (quoting Hickson v. State, 472 So.2d 379,

383 (Miss. 1979) (concerning a handcuffed defendant). However, there is no merit to this

claim as Jackson was not dressed in attire that would necessarily conjure up the image of

“prisoner.” The Supreme Court of the United States has stated that prejudicial attire is

“distinctive, identifiable attire,” that may affect a juror's judgment. Estelle v. Washington, 425

U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, 131 (1976). Further, a constitutional violation may

occur where a judge compels a defendant to wear such attire, thus resulting in prejudice. Id.

The record reveals that Jackson’s attire consisted of ordinary navy pants and a blue chambray

shirt. Jackson’s counsel objected at trial since the clothing was provided by the Department

                                               21
of Corrections, but was overruled on the basis that the clothing was not distinguishable from

ordinary, everyday clothing. Further, the trial judge did not deny Jackson the opportunity to

change his clothing, but recognized and explained on record that no other clothing was

available.

¶50.   While counsel who filed the petition for rehearing may have had a duty to point out that

the Court failed to address this claim, Jackson fails to demonstrate both deficient performance

and actual prejudice as a result as required by Strickland, 466 U.S. at 693. We cannot

conclude that had he been in alternative nondescript clothing, the outcome of his trial and

sentence would be different. This claim is without merit. Jackson is not entitled to relief.


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

¶51.   Jackson claims that trial counsel was ineffective in failing to obtain an independent,

competent and reliable mental health evaluation at an earlier date that would substantiate

Jackson suffered from “brain-damage,” which he now alleges led to the murders and attempted

murders. He contends that this Court so found on direct appeal. Jackson cites the following

from the opinion:

       Given the five-month time frame in which Jackson’s attorney could have
       filed a notice of insanity defense, voiced his objections to the evaluations
       by the court-appointed doctors or taken other measures to secure
       evaluations by psychiatrists or psychologists of his choice, and the fact
       that he found it necessary to withdraw the insanity defense after obtaining
       Dr. Summers’ evaluation, we cannot say that manifest injustice resulted
       from the refusal to grant a continuance.

684 So. 2d at 1222.



                                               22
¶52.   Jackson contends that had trial counsel objected more promptly, explained the alleged

conflict of interest regarding Dr. Whelan’s employment with the MDOC, and, inter alia,

moved earlier to have an independent evaluator appointed, then “Mr. Jackson would have a

winning claim on direct appeal with respect to the continuance issue or would have been able

to present experts at trial who had sufficient time to conduct a reliable mental health

evaluation.”

¶53.   On August 21, 1991, in response to the motion for continuance, the State maintained

that the defendant’s psychiatrist or psychologist are not constitutionally required. The State

also noted, “[i]n this case there is no suggestion of insanity. I have, in fact, asked that question.

No notice has been filed.” Jackson, in fact, did not raise an insanity defense; it was abandoned

because he was unable to present any evidence to create a M’Naghten question.

¶54.   Jackson also raises in his Motion to Vacate Death Sentence that the effectiveness of

counsel was interfered with when the trial court failed to appoint defense mental health experts

or timely authorize funds to hire “defense” mental experts or grant a continuance. This claim

is based on the assumption that Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed. 2d.

53 (1985), requires the appointment of “defense” mental experts of Jackson’s choice. In Ake,

the Supreme Court held that:

       [W]hen a defendant demonstrates to the trial judge that his sanity at the
       time of the offense is to be a significant factor at trial, the State must, at
       a minimum, assure the defendant access to a competent psychiatrist who
       will conduct an appropriate examination. . .This is not to say, of course that
       the indigent defendant has a constitutional right to choose a psychiatrist of
       his personal liking or to receive funds to hire his own.




                                             23
470 U.S. at 83. As mentioned, Jackson abandoned his insanity defense because he was unable

to present any evidence create a M’Naghten question. Dr. Whelan, Dr. McKinley and Dr.

Summers all stated that Jackson was not insane under this test. And Jackson admits this in his

Memorandum in Support of Application for Leave to File Motion to Vacate Conviction and/or

Death Sentence. This being so, Jackson was entitled to the court- appointed psychologist and

psychiatrist according to constitutional standards, which he was provided. And indeed, the

record shows that Jackson was provided with several competent mental health experts to

examine him. The fact that they could not say he was insane nor that the M’Naghten test could

not be met is not a flaw in defense counsel’s performance. Defense counsel cannot force a

physician to come to any particular medical or scientific conclusion. Jackson cannot therefore

show deficient performance of counsel nor, by virtue of that inability, any resulting prejudice.

Morever, this very issue was addressed on direct appeal and is therefore procedurally barred.

This bar notwithstanding, the claim is without merit.

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

¶55.   Jackson next contends that trial counsel was ineffective in failing to produce additional

mitigation evidence during the sentencing phase of trial. Jackson contends that trial counsel

should have introduced evidence of his “chaotic family history, his solid employment history

and other evidence that would have garnered sympathy.”

¶56.   This claim is without merit. Trial counsel called seven mitigation witnesses including

Dr. Whelan and Jackson’s probation officer. These witnesses testified as to Jackson’s self

elected choice to turn himself in, his remorse, his anger disorder, potential metabolic



                                              24
disorders, toxic disorders and traumatic brain injury, Jackson’s I. Q. -- being in the low eighties

-- that Jackson was intellectually slow, and, inter alia, that prior to Jackson’s crime he did not

have a persuasively criminal or anti-social personality.

¶57.   Family members testified indicating their love for and forgiveness of Jackson, that they

knew of several head injuries he sustained, and something was mentally wrong with Jackson.

Jackson’s sister, the mother of two of the murdered children, testified that she was hurt and

angry, that Jackson should be punished, but not put to death. She stated that she met with

Jackson following the murders, that she had forgiven him and that she still loved her brother.

¶58.   Jackson’s mother testified to numerous childhood head injuries related to sports and

work. She testified to how supportive Jackson had been of her financially, that he would often

buy her groceries and supplies. She testified that Jackson should be punished but not sentenced

to death.

¶59.   Finally, Dr. Summers was called to testify. He testified to numerous head injuries,

blackouts, major depression, intermittent explosive episodes of anger, that Jackson had

complex partial-seizure disorder and potential adverse pharmaceutical reactions.

¶60.   Given this testimony, we are unpersuaded that had any other witnesses been called, the

outcome of Jackson’s sentence would be different. Indeed, Jackson fails to demonstrate a

reasonable probability that the result of the sentencing phase would have been different had

there been any other mitigation evidence. Therefore, Jackson does not demonstrate deficient

performance of counsel and actual prejudice as required by Strickland and Wiggins v. Smith,

123 S. Ct. 2527 ( 2003). Jackson therefore is not entitled to relief on this claim.




                                                25
       9.     Whether Jackson was denied effective assistance by counsel’s
              failure to object to the testimony of the court-appointed expert on
              an ultimate issue of law.

¶61.   Jackson contends that trial counsel was ineffective for failing to object to a comment

on responsibility by Dr. Whelan during the State’s cross-examination during the sentencing

phase. Specifically, the prosecutor attempted to get Dr. Whelan to distinguish between his

opinion that Jackson was responsible for his actions and the mitigating factors he suggested

in his report. He was not, in doing so, making a comment on the ultimate issue of

responsibility as Jackson contends and as the record reveals:

               By Mr. Crook: If I am understanding your report to the Court and
       your testimony, his actions and emotions that you found to be present had
       nothing to do with his responsibility is that correct?
               A. Not in a legal sense, no. Neither you nor Mr. Walls has really
       asked me to explain my psychological testing and why that led him to do
       what he did. But in a legal sense, no. He is responsible for what he did.
               Q. Well, in mitigating factors, if I understand you correctly, are that
       his history prior to arrest is relatively stable, means he doesn’t have any
       problems as far as --
               A. He is married for several years, three of four years and is raising
       a family, had his own children, had a steady job, that is what I mean by that.
       He wasn’t going out and robbing stores and beating up people.

As to responsibility, in any case, the jury had already found Jackson guilty. Moreover, trial

counsel raised the underlying claim on direct appeal and this Court held it barred for failure

to object at the time. See 684 So.2d at 1231. The claim remains barred.

¶62.   Alternatively, Jackson does not show deficient performance and actual prejudice as

required to establish a claim for ineffective assistance in counsel’s failure to object to the

comment. We conclude there is no reasonable probability therefore that but for the failure to

object, the result of the sentence phase would have been different. Jackson fails to satisfy

Strickland on this claim and is not therefore entitled to relief.

                                                26
       10.     Wether Jackson was competent to stand trial and, in the
               alternative, whether trial counsel was ineffective for failing to
               object to this issue below.

¶63.   Jackson next contends that because he was too depressed to complete a

neuropsychological screening test that he was incompetent to assist his attorneys and therefore

incompetent to stand trial. This claim was not raised at trial or on direct appeal and is therefore

barred under Miss. Code Ann. § 99-39-21(1).

¶64.   Alternatively, Jackson was examined by two experts and found competent to stand trial.

Although one doctor found him not, there is no mention in that doctor’s report for purposes

of this application that Jackson was not competent. The report of the two doctors that found

Jackson competent are sufficient to overcome this claim on the merits. Jackson is not entitled

to relief on this claim.

       11.     Whether Jackson was denied his right to be present during trial
               and personally confront the witnesses against him and, in the
               alternative, whether trial and appellate counsel were ineffective in
               handling these issues.
       12.     Whether the trial court erred in not holding a hearing to
               determine whether Jackson was competent to waive his right to be
               present and, in the alternative, whether trial and appellate counsel
               were ineffective for not raising the issue.

¶65.    These issues are closely related and are therefore addressed together. First, Jackson

claims he was denied his right to be present at trial. Second, he claims that the trial court

should have held a competency hearing to determine whether he was competent to waive his

presence at trial. Neither of these claims were raised at trial or on direct appeal and are

therefore barred by Miss. Code Ann. § 99-39-21(1), and cannot be raised for the first time in

this application for post-conviction relief.



                                                27
¶66.   Alternatively on the merits and as to effective assistance, the record reflects that

Jackson left the courtroom of his own free will in each instance. The record also makes clear

that he was competent to waive his right to be present as all of his departures resulted from

trial times during which evidence or testimony was presented illustrating the damage he caused

his victims. The trial court discussed the matter with Jackson and Jackson’s counsel and

allowed him to leave upon presentation of this often gruesome evidence. Further, the trial

court stated that it would instruct the jury that Jackson had the right to leave and that no

inference should be drawn from his absence.

¶67.   Following the testimony of Officer Bowles, trial counsel reported that Jackson was sick

and vomiting. The court requested that Jackson brought into the courtroom to be questioned.

Jackson said he had not eaten, that he however did not need a doctor, and waived his presence.

After the next witness, counsel moved to continue, which the court denied because Jackson had

waived his presence. Jackson’s departures from the courtroom were consistently related to

the presentation of evidence regarding his victims. And the record reflects consistent court

inquiry each time.

¶68.   Finally, the record shows that Jackson voluntarily absented himself during the reading

of portions of his confession. The trial court stated:

       BY THE COURT: The court watched him and he left voluntarily. I was
       looking at him. He left on Page 13 and 17. I noted it and put that in the
       record. And he has left several times. He has informed the Court that he
       wished to at certain points leave. The Court gave him that permission and
       told him that it was his absolute right to be there but I could not require him
       to be there.

¶69.   Jackson claims that trial and appellate counsel were ineffective in failing to raise these

issues. Based on the record of Jackson’s voluntary departures from the courtroom, however,

                                               28
this claim is without merit. Jackson cannot show deficient performance or actual prejudice;

and there is no reasonable probability that had Jackson been present at every moment of the

trial, the outcome of his trial or appeal would be different.

¶70.   These two claims are barred from consideration for the first time here. Jackson has not

established the required cause and actual prejudice to overcome this bar. Jackson is not

entitled to relief on these claims.


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

¶71.   Jackson claims that the prosecution made improper jury arguments based on the Bible

and biblical teachings. Specifically, the claim is that the prosecutor improperly asked the jury

to follow God’s law, citing it as “extrajudicial authority,” and as such the prosecutor engaged

in an impermissible “misstatement of the law.” The record reveals that the prosecutor related

to the jury the story of the ancient King Herod who, according to the Bible, ordered that every

child under the age of two be put to death. Additionally, the prosecutor stated that “God’s law

in the beginning was, if you commit a willful murder, that you should be put to death.” No

objection was raised at trial or on direct appeal. Therefore this claim is barred by Miss. Code

Ann. § 99-39-21(1) and cannot be raised here for the first time.

¶72.   Alternatively, this Court has held that arguments with scriptural, religious or biblical

references are proper subjects for comment during closing, especially when they are

responsive to those of defense counsel. Berry v. State, 703 So.2d 269, 281 (Miss. 1997);

Carr v. State, 655 So.2d 824, 853 (Miss. 1995); Hansen v. State, 592 So.2d 114, 139-40


                                              29
(Miss. 1991); Shell v. State, 554 So. 2d 887, 899 (Miss. 1989) rev'd on other grounds, 498

U.S. 1, 111 S. Ct. 313, 112 L.Ed. 2d 1 (1990); Nixon v. State, 533 So. 2d 1078, 1100-01

(Miss. 1987), overruled on other grounds, Wharton v. State, 734 So. 2d 985 (Miss. 1998).

During the defense closing, the record reflects that Jackson's counsel made religious-based

arguments. Jackson’s claim that counsel was ineffective therefore in failing to object to the

biblical references is without merit.

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

¶73.   Jackson claims the prosecutor improperly commented on Jackson’s failure to take the

stand and testify, gave an incorrect explanation of the nature of mitigation, misled the jury as

to mitigating factors, offered her personal opinion on the quality and credibility of defense

witnesses during the sentencing phase, and that trial counsel was ineffective for failing to

object to the statement that Jackson had been convicted of kidnaping.

¶74.   Jackson correctly notes that this Court barred these claims on direct appeal since no

objection was raised at trial. See 684 So.2d at 1226. This being so, the claims are still barred

by Miss. Code. Ann. § 99-39-21(1). Further, since this Court has decided these claims on

direct appeal, although on the basis of the procedural bar, they are now res judicata under

Miss. Code. Ann. § 99-39-21(3) and cannot be relitigated.

¶75.   Attempting to overcome this bar under the cause and prejudice standard, Jackson claims

counsel was ineffective by not objecting to the prosecutor’s conduct. Jackson has not shown,




                                              30
however, that counsel was deficient and that he suffered actual prejudice as required by

Strickland.

         a.     Comment on the failure to testify.

¶76.     On direct appeal, this Court addressed the merits of this claim and found “no such

allusions in the portions of the trial transcript cited by the appellant.” 684 So.2d at 1226. This

claim has been addressed and should not therefore be addressed again on the merits here.

         b.     Explanation of nature of mitigation.

¶77.     Jackson claims the prosecutor incorrectly informed the jurors of the law of child abuse

at the sentencing phase. Specifically, she did not argue that the abuse had to be intentional.

Even if she so argued, the jury was properly instructed on the law by the trial court and also

instructed that counsel arguments were just arguments and not to be used as the law. Given this

fact, Jackson cannot show that he was prejudiced here and cannot therefore sustain an

ineffective assistance claim as required by Strickland.

         c.     Misleading comments regarding the existence of mitigating factors.

¶78.     The prosecutor also argued that there was nothing “which mitigates these crimes.”

Jackson complains. The prosecutor, however, is entitled to rebut any evidence and argue that

it is not worthy of consideration. See, e.g., Wiley v. State, 750 So.2d 1193, 1202 (Miss.

1999); Evans v. State, 725 So.2d at 676. Further, since the jury was properly instructed on

how to consider mitigating evidence, Jackson cannot sustain a claim of ineffective assistance

because he cannot demonstrate actual prejudice in light of the fact that such instruction was

given.

         d.     Arguments of facts not in evidence.

                                               31
¶79.   Jackson argues that counsel was ineffective in failing to object to the prosecutor’s

misstatement during closing that Jackson had been previously convicted of kidnaping. This

Court noted on direct appeal, however, that those charges had been dropped and that a certified

copy of Jackson’s burglary conviction had gone to the jury. 684 So.2d at 1236. Therefore, any

misstatement the prosecutor made on this topic was not prejudicial as the jury actually knew

from the conviction introduced that it was burglary with the intent to commit kidnaping.

Further, counsel objected at trial to the characterization of the prior crime as a conviction for

kidnaping during the cross-examination of Dr. Summers. The jury heard this objection and the

judge’s ruling.

¶80.   That trial counsel failed to object during closing does not demonstrate, in the face of

the introduced burglary conviction, that Jackson was prejudiced. Moreover, there is nothing

in the record or in Jackson’s brief to suggest that, but for counsel’s failure to object, the

outcome of Jackson’s conviction or sentence would be different as required by Strickland.

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

¶81. Jackson claims that the prosecutor improperly commented on the quality and credibility

of defense witnesses during the sentencing phase when she stated that she “questioned the

sincerity of forgiveness.” The transcript reflects the context in which this statement was made

– she was referencing her actual line of questioning during cross-examination of those

witnesses:

       Counsel tells you that all of those mothers and family members forgive
       him. And, I think that’s interesting, ladies and gentlemen, because they
       say they forgive him but they still think he should be punished. And I
       questioned the sincerity of that forgiveness. I know what Regina told you.



                                           32
        She couldn’t forgive everything he did. The family has some interesting
        explanations for why he did what he did. . .

¶82.    The record reflects that the prosecutor questioned each witness as to their sincerity of

forgiveness during cross-examination. This was not a reflection of her personal opinion.

Jackson fails to demonstrate that counsel actually had a basis to object here and, therefore, that

counsel was deficient for not doing so resulting in prejudice to his case, as required by

Strickland.

¶83.    All of these claims are barred by Miss. Code Ann. § 99-39-21(1) & (3), and in addition

do not demonstrate ineffective assistance of counsel by deciding not to object. Jackson is not

therefore entitled to relief on these claims.

        15.    Whether the trial court’s instructions to the jury regarding
               sympathy violated Jackson’s rights and, in the alternative, whether
               trial counsel was ineffective for not objecting to them.

¶84.    Jackson claims that the jury instruction to disregard sympathy, part of an approved long-

sentencing instruction, was given by the court in error. Additionally alleged as error is the

judge’s comment to the jury that “your decision must not be influenced by sympathy or by any

bias or prejudice based on race, religion, color or any such matter.” The instruction reads in

part:

        You should consider and weigh any aggravating and mitigating circumstances,
        as set forth later in this instruction, but you are cautioned not to be swayed by
        mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or
        public feeling.

¶85.    This claim was addressed in the context of the failure to grant a mercy or sympathy

instruction to the jury by this Court on direct appeal and found to be without merit. See 684

So.2d at 1239. It is therefore barred as res judicata by Miss. Code Ann. § 99-39-21(3).


                                                33
¶86.   Jackson attempts to overcome this bar, however, by claiming that King v. State, 784

So. 2d 884 (Miss. 2001), is an intervening decision requiring relief on this claim. It is not.

¶87.   In King, we held that it was reversible error for the court to instruct the jury that

sympathy should have no part whatsoever in its deliberations and to have told counsel that he

“couldn’t ask for sympathy in any way.” Id. Indeed, this Court has repeatedly held that under

the Eighth Amendment to the U.S. Constitution, “a jury may not be instructed to disregard, in

toto, sympathy.” Pinkney v. State, 538 So.2d 329, 351 (Miss. 1988, vacated and remanded

on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). Such is not the

circumstance with the present instruction. There is no instruction to the jury that it must

totally disregard sympathy. Further, the present instruction and similar instructions have been

approved by this Court many times. Woodward v. State, 843 So.2d at 19; Jordan v. State, 786

So.2d at 1025; Evans v. State, 725 So.2d at 690-91 (Miss 1997); Bell v. State, 725 So.2d

836, 865 (Miss. 1998); Holland v. State, 705 So.2d 307, 351-52 (Miss. 1997); Blue v. State,

674 So.2d 1184, 1224-25 (Miss. 1996). This claim is without merit.

¶88.   Jackson claims that should this Court not find King intervening, trial counsel was

ineffective in failing to object to the sentencing instructions and failing to object to the

prosecutor’s comment that Jackson did not deserve sympathy. But this is not improper since

the defense argued that Jackson did deserve sympathy. The prosecutor’s comment was made

in rebuttal. This Court has held that the State is allowed to make its case for the death penalty.

See King v. State, 784 So.2d at 889-90 (“Clearly, it is appropriate for the defense to ask for

mercy or sympathy in the sentencing phase. It is equally appropriate for the state to further its

goal of deterrence by arguing to ‘send a message’ in the sentencing phase. Both of these

                                               34
arguments are recognized as legitimate considerations to be hade by those who argue ‘for or

against’ the death penalty.”).

¶89.   This claim is barred by Miss. Code Ann. § 99-39-21(2) & (3) and is alternatively

without merit. Contrary to Jackson’s claim, the jury was not instructed to totally disregard

sympathy. Jackson can neither demonstrate deficiency of counsel nor actual prejudice

therefore. Jackson is not entitled to relief on this claim.

       16.    Whether Jackson’s rights were violated due to cumulative trial
              error.

¶90.   Jackson claims that “[s]everal errors discussed above cannot be harmless.” We first

observe that all of Jackson’s claims, including this one, have already been litigated. 684

So.2d at 1239. They cannot be relitigated here. Miss. Code Ann. § 99-39-21 (3).

Alternatively they are without merit. Nor has Jackson raised a viable claim of ineffective

assistance of counsel.

                                        CONCLUSION

¶91.   Jackson's petition for post-conviction relief and application for leave to file motion to

vacate conviction and/or death sentence, as supplemented, are denied.

¶92.    PETITIONS FOR POST-CONVICTION COLLATERAL RELIEF, DENIED.

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




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