                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 92-KA-00601-SCT
HOWARD MONTEVILLE NEAL
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:           5/21/92
TRIAL JUDGE:                HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED:  LAWRENCE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    JAMES WILLIAM CRAIG
                            JAMES L. SULTAN
                            CHARLES R. BLISS
ATTORNEYS FOR APPELLEE:     OFFICE OF THE ATTORNEY GENERAL
                            BY: CHARLENE R. PIERCE
                                  MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:          NA
NATURE OF THE CASE:         CRIMINAL - DEATH PENALTY - POST CONVICTION
DISPOSITION:                AFFIRMED - 8/8/96
MOTION FOR REHEARING FILED: 8/30/96
MANDATE ISSUED:             11/21/96




     EN BANC.


     ROBERTS, JUSTICE, FOR THE COURT:


¶1. Howard Monteville Neal was convicted of the capital murder of Amanda Joy Neal on February 4,
1982, and on that same day, given a sentence of death. The conviction and sentence were affirmed by
this Court in Neal v. State, 451 So.2d 743 (Miss. 1984), cert. denied, Neal v. Mississippi, 469 U.S.
1098 (1984). Neal sought post-conviction review of his conviction and sentence, and in Neal v.
State, 525 So.2d 1279 (Miss. 1987), this Court remanded the case to the Circuit Court of Lawrence
County for an evidentiary hearing on Neal's claim that he was denied the right to testify in his own
behalf at trial. On March 30, 1992, the trial court conducted an evidentiary hearing and found that
Neal had not been denied the right to testify in his own behalf. It is from this decision that Neal now
appeals, asserting the following errors:

     1. THE SUBMISSION TO THE SENTENCING JURY OF THE "ESPECIALLY
     HEINOUS, ATROCIOUS, OR CRUEL" AGGRAVATING CIRCUMSTANCE
     REQUIRES THAT THE DEATH SENTENCE IN THIS CASE BE VACATED.

     2. THE TRIAL COURT ERRED IN DENYING PETITIONER A HEARING TO
     DETERMINE HIS COMPETENCY TO PARTICIPATE IN THE EVIDENTIARY
     HEARING ORDERED BY THIS COURT.

     3. THE CIRCUIT JUDGE ERRED IN FAILING TO RECUSE HIMSELF FROM THIS
     CASE.

     4. THE CIRCUIT COURT ERRED IN EXCLUDING THE TESTIMONY OF THE
     PETITIONER'S EXPERT.

     5. THE CIRCUIT COURT USED AN ERRONEOUS LEGAL STANDARD IN
     DENYING RELIEF.

                                  STATEMENT OF THE FACTS

¶2. An evidentiary hearing was held on March 30, 1992, some ten years after trial, to determine
whether Neal was denied the right the testify in his own behalf during his capital murder trial at which
he was sentenced to death. Several motions were filed by the State, as well as by Neal and ruled on
by the trial court.

¶3. The State filed a motion for summary judgment and a renewed motion for summary judgment
which were denied by the trial judge. At the hearing, Neal's counsel renewed several motions
previously ruled on by the trial judge. Neal filed a motion for recusal which Judge Prichard denied.
Neal argued that if available they would call the judge as a witness. The motion was denied, but the
trial judge did allow a deposition which he had given earlier to be placed into evidence. Neal's
counsel also renewed a motion for a separate competency hearing to determine Neal's competency to
proceed with the evidentiary hearing. The trial court had denied the original motion which sought to
have a jury impaneled to determine Neal's competence. The trial court again denied the motion
stating:

     it would take a psychologist or psychiatrist to say there has been some change of mental ability
     and competency since the trial to date. And that has never been done. It is still the same
     grounds that were alleged to have been present at the time of trial. The Supreme Court has in
     their opinion satisfied themselves that he was at that time competent even though it was
     admitted he is mentally retarded.(1)

     The Court finds no new evidence of new psychiatric and/or psychological problems which have
     evolved since the date of the conviction to the date of today.

¶4. After the trial judge ruled on these motions they proceeded with the hearing. All the witnesses
also gave depositions before the hearing which were entered into evidence although they were not
read into the record. After listening to all the testimony and examining the evidence, the trial court
denied Neal's motion for post-conviction collateral relief saying he had not met his burden of proof.

                                            DISCUSSION
     1. WHETHER THE SUBMISSION TO THE SENTENCING JURY OF THE
     "ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL" AGGRAVATING
     CIRCUMSTANCE REQUIRES THAT THE DEATH SENTENCE IN THIS CASE BE
     VACATED.

¶5. First, Neal argues that the especially heinous, atrocious, or cruel aggravating circumstance
instruction given to the jury requires his sentence of death to be reversed and a new sentencing
hearing held because of the U.S. Supreme Court's decisions in Maynard v. Cartwright, 486 U.S. 356
(1988), and Clemons v. Mississippi, 494 U.S. 738 (1990).

¶6. This is an appeal from an evidentiary hearing; therefore, this issue is not properly before this
Court and will not be discussed. See Walton v. State, 666 So.2d 752, 753 (Miss. 1995); Billiot v.
State, 655 So.2d 1, 17 (Miss. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 818 (1996); Culberson v.
State, 456 So.2d 697 (Miss. 1984).

     2. WHETHER THE TRIAL COURT ERRED IN DENYING PETITIONER A
     HEARING TO DETERMINE HIS COMPETENCY TO PARTICIPATE IN THE
     EVIDENTIARY HEARING ORDERED BY THIS COURT.

¶7. Neal contends that the trial court erred in not granting him a hearing to determine his competence
to participate in the evidentiary hearing. When this Court remanded this case for an evidentiary
hearing, Neal filed a motion requesting a competency hearing. The trial court denied the motion,
finding it did not have jurisdiction over the matter. This Court originally denied a request by Neal for
an interlocutory review of this issue. Neal then filed with this Court a Supplemental Application for
Leave to File Motion to Vacate Judgment and Death Sentence. In denying this application this Court
held:

     Furthermore, the jurisdiction of the Circuit Court of Lawrence County in this cause extends to
     the issue of Neal's present competence vel non, and that court may entertain such a claim at any
     stage of the proceedings, and may conduct an evidentiary hearing in response to a claim that
     Neal is presently incompetent to proceed if satisfied that such a hearing is warranted under
     the applicable facts and legal standards.

Neal v. State, No. 03-DP-0036 (Miss., July 11, 1990) (unpublished order) (emphasis added).
Subsequently, Neal again filed with the lower court a motion for hearing on competency to proceed.
The Circuit Court again denied the motion in an order stating in part:

     After having considered the holding of the Mississippi Supreme Court in this matter and the
     reports received from the experts that have examined petitioner, the Court finds that no hearing
     is warranted under the factual circumstances and legal standards applicable in such cases.

Neal renewed the motion at the evidentiary hearing. The trial court allowed into evidence the Third
Supplemental Affidavit of June Kaufman, Ph.D., but once again denied the motion stating in part:

     [T]he Court does agree with Mr. White's assessment that it would take a psychologist or
     psychiatrist to say there has been some change of mental ability and competency since the trial
     to date. And that has never been done. It is still the same grounds that were alleged to have
     been present at the time of trial. The Supreme Court has in their opinion satisfied themselves
     that he was at that time competent even though it was admitted he is mentally retarded. The
     Court finds no new evidence of new psychiatric and/or psychological problems which have
     evolved since the date of the conviction to the date of today.

     So those motions be and the same are hereby overruled.

¶8. Neal correctly argues that a defendant must be competent at all stages of the criminal process,
"whether trial, Gammage v. State, 510 So.2d 802 (Miss. 1987); appeal, Tarrants v. State, 231 So.2d
493 (Miss. 1970); post-conviction, Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir. 1985); or at the
point of execution, Billiot v. State, 478 So.2d 1043 (Miss. 1985), cert. denied, 475 U.S. 1098
(1986).

¶9. In his brief, Neal cites authority concerning when a hearing should be held on a defendant's
competency to stand trial. See Emanuel v. State, 412 So.2d 1187, 1188 (Miss. 1982). He also points
out the test to be used to determine if a defendant is competent to stand trial. See Dusky v. United
States, 362 U.S. 402 (1960); Gammage v. State, 510 So.2d 802 (Miss. 1987); Jaquith v. Beckwith,
248 Miss. 491, 157 So.2d 403 (1963). Neal goes on to cite numerous other authority as to a
defendant's right to a hearing on his competence to stand trial. However, he gives no authority
concerning a petitioner's right to a competency hearing at a later stage in the criminal process when
that person was given a pre-trial competency hearing and found competent to stand trial. That is the
situation that concerns us here.

¶10. Neal was given a competency hearing prior to his murder trials and found competent to stand
trial despite his mental retardation. In both his direct appeal and his application for post-conviction
relief before this Court, Neal attempted to put on proof of his lack of mental capacity. This Court
held,

     The problem with these charges is that they are substantially redundant or cumulative when
     compared with the evidence Neal offered at trial. Specifically, Neal now wants to present
     evidence of his lack of mental capacity, a fact said to go to the voluntariness of his confession
     and to be in mitigation of sentence. But he went into these same matters at trial . . . . Because it
     is cumulative, what Neal alleges and purports to show now that counsel should have developed
     and proved simply does not amount to a substantial showing of denial of a state or federal right.
     Miss. Code Ann. §99-39-27(5).

Neal v. State, 525 So.2d 1279, 1282-83 (Miss. 1987).

¶11. The situation here is similar to that in Billiot v. State, 478 So.2d 1043 (Miss. 1985) cert. den.
469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369 (1985). There Billiot claimed he was presently
insane and therefore could not be executed. Miss. Code Ann. §99-19-57(2)(b) (Supp. 1995), states:

     For the purposes of this subsection, a person shall be deemed insane if the court finds the
     convict does not have sufficient intelligence to understand the nature of the proceedings against
     him, what he was tried for, the purpose of his punishment, the impending fate which awaits him,
     and a sufficient understanding to know any fact which might exist which would make his
     punishment unjust or unlawful and the intelligence requisite to convey such information to his
     attorney or the court.

¶12. Billiot's claim lacked merit because he failed to show supervening present insanity as required
under Miss. Code Ann. §99-19-57(2)(a). All Billiot's evidence went to show that his mental condition
existed prior to trial. He did not even argue that his mental condition developed after his trial. This
Court held,

     It follows in these circumstances that the action of the trial court in determining that Billiot was
     sane and competent is also res judicata as to the issue of his present sanity, as the matter is
     raised in this petition. These issues were thoroughly litigated at trial and upon direct appeal and
     may not be litigated again by way of post conviction writ.

Billiot, 478 So.2d at 1045. See Miss. Code Ann. §99-39-21(2)(3) (Supp. 1993); See also Mitchell v.
State, 179 Miss. 814, 176 So. 743 (1937); Johnson v. State, 508 So.2d 1126 (Miss. 1987); Johnson
v. Cabana, 818 F.2d 333, 340 (5th Cir. 1987), cert. denied, 481 U.S. 1061 (1987).

¶13. Neal makes no assertion that there has been any change in his mental condition since the trial in
this case. In fact, the evidence presented shows that he had been diagnosed as mentally retarded as
early as age eleven when he was admitted to the Ellisville State School. Neal was found competent at
a pre-trial competency hearing, and he has offered no evidence that his condition has changed in any
way since that time. This issue is therefore without merit.

     3. WHETHER THE CIRCUIT JUDGE ERRED IN FAILING TO RECUSE HIMSELF
     FROM THIS CASE.

¶14. Neal requested on several separate occasions that the trial judge recuse himself from presiding
over the evidentiary hearing in this case. The trial judge denied the motion to recuse himself in each
instance, but allowed his deposition into evidence to preserve the record. The trial judge stated that
he had reviewed the deposition of the witnesses and

     the Court has no independent recollection that differs in any wise, shape, form, or fashion with
     what they have asserted, and the Court has nothing before it to show that the Movant herein
     has any disagreement with any of the recollections of those parties. And the Court is open for
     any factual proof to the contrary, and the Court assumes that what Mr. Neal may be
     complaining of may not even have anything to do with the time period that the depositions and
     my recollection go to, and may be entirely different.

¶15. Neal argues that Judge Prichard had personal knowledge of evidentiary facts which went to
proving one of the central aspects of Petitioner's claim, that given his mental retardation and the
circumstances surrounding his attempt to assert his rights, any waiver of his right to testify or address
the jury was not knowing, intelligent, or voluntary. The issue before the court during the evidentiary
hearing was whether Neal was denied the right to testify on his own behalf during the trial for the
murder of Amanda Joy Neal.

¶16. It is undisputed that it was brought to the attention of the trial court that Neal wanted to take
the witness stand. There was a conference held between Judge Prichard, Neal and the attorneys for
both sides. During this conference, Judge Prichard agreed to allow Neal to testify, but requested that
he confer further with his attorneys. Judge Prichard was not present during the meeting between Neal
and his attorneys. After conferring privately with Neal, his attorneys informed the Court that Neal
had decided not to testify.

¶17. There was some conflicting testimony regarding the circumstances surrounding Neal's decision
not to testify. All the witnesses agreed that the conference concerning Neal's desire to testify
occurred. Everyone except Joe Dale Walker remembered it occurring during the first trial. With the
exception of John Clay, everyone remembered Neal wanted to address the jury for the purpose of
requesting the death penalty. No one remembered how long the conference between Neal and his
attorneys lasted, but all agreed that it was not a long conference. There was no dispute that Judge
Prichard was willing to let Neal testify after he conferred with his attorneys. Everyone agreed that
Judge Prichard was not present during the meeting between Neal and his attorneys after which the
court was informed Neal had changed his mind.

¶18. This Court addressed the issue of recusal in Collins v. Joshi, 611 So.2d 898 (Miss. 1992).
There it was held:

     The standard by which the Court determines if a judge should have disqualified him or herself,
     is an objective standard under Canon 3. "A judge is required to disqualify himself if a reasonable
     person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland v.
     Pridgen, 493 So.2d 952, 954 (Miss. 1986); Jenkins, 570 So.2d at 1192; Collins, 543 So.2d at
     166. The presumption is " that a judge, sworn to administer impartial justice, is qualified and
     unbiased. To overcome the presumption, the evidence must produce a 'reasonable doubt' (about
     the validity of the presumption)[.]" Turner v. State, 573 So.2d 657, 678 (Miss. 1990). When a
     judge is not disqualified under the constitutional or statutory provisions, "the propriety of his or
     her sitting is a question to be decided by the judge and is subject to review only in case of
     manifest abuse of discretion." Buchanan v. Buchanan, 587 So.2d 892 (Miss. 1991); Turner,
     573 So.2d at 677; Ruffin v. State, 481 So.2d 312 at 317 (1985)(quoting McLendon v. State,
     187 Miss. 247, 191 So. 821, 823 (1939)).

     Under the appropriate standard, the judge is presumed qualified and unbiased. This presumption
     may only be overcome by evidence showing beyond a reasonable doubt that the judge was
     biased or not qualified. If a reasonable person, knowing all the circumstances, would doubt the
     judge's impartiality, the judge is required to recuse him or herself from the case.

Collins, 611 So.2d at 901. See Code of Judicial Conduct, Canon 3(C)(1)(a).

¶19. Neal cites Collins v. Dixie Transport, Inc., 543 So.2d 160 (Miss. 1990), wherein this Court
held that the trial judge erred in not recusing himself from the case. That case differs from the case
sub judice. In Collins v. Dixie Transport, "the trial judge was in the room during the critical
settlement conference." Throughout the hearing the trial judge "felt compelled to testify." "He went
so far as to request the court clerk to swear him in so he could be questioned, but the attorneys
balked at that." In reversing the case, this Court held:

     On the record before us, the trial judge was both a witness to and adjudicator of fact issues with
     respect to which he was obliged to have played but one role. As those matters went to what
     was central -- the credibility of Curtis Lee Collins and his sons, we may but reverse the order
     enforcing settlement.

543 So.2d at 167.

¶20. Here, Judge Prichard was not present during the critical conference between Neal and his
attorneys. His only personal knowledge was concerning the events that led up to that meeting
between client and counsel. Regardless of what Neal would have us believe, those events do not
concern us here. It is undisputed that it was brought to the trial court's attention that Neal wanted to
testify. However, Judge Prichard had no personal knowledge concerning whether or not Neal's
attorneys refused, against his will, to allow him to testify. It is that issue that was the subject of the
evidentiary hearing.

¶21. Neal argues that the events leading up to the time when Neal's attorneys informed the court that
he had decided not to testify go to show that Neal did not make a voluntary, knowing and intentional
waiver of that right. See Hollenbeck v. Estelle, 672 F.2d 451, 453 (5th Cir. 1982). This is just
another attempt to put the matter of Neal's competence into issue. The issue of Neal's competence to
stand trial was decided at a pre-trial hearing and the finding has previously been affirmed by this
Court.

¶22. Judge Prichard had no personal knowledge concerning the issue before the court during the
evidentiary hearing. Neal has not offered evidence to produce a reasonable doubt as to the trial
judge's impartiality. From the facts presented it cannot be said that there was a manifest abuse of the
trial court's discretion in failing to recuse himself from the evidentiary hearing.

     4. WHETHER THE CIRCUIT COURT ERRED IN EXCLUDING THE TESTIMONY
     OF THE PETITIONER'S EXPERT.

¶23. Neal contends that the trial court's refusal to allow Dr. Kaufman to testify was reversible error.
He argues she was an expert and would have offered relevant testimony, and therefore, excluding
that testimony was a violation of Miss.R.Evid. 702. See Hall v. Hilbun, 466 So.2d 856, 874 (Miss.
1985); Hardy v. Brantley, 471 So.2d 358, 365-69 (Miss. 1985). See also, Hecklar v. State, 503
So.2d 269 (Miss. 1987); Hooten v. State, 492 So.2d 948 (Miss. 1986); Henry v. State, 484 So.2d
1012 (Miss. 1986).

¶24. This entire argument hinges on the contention that due to his mental capacity, Neal did not make
a knowing and voluntary waiver of his right to testify. Again this goes to his competence. The trial
court refused to allow Dr. Kaufman's testimony, stating that this same matter was gone into at trial
and the evidence presented at the hearing was cumulative and did not "amount to a substantial
showing of denial of the State or Federal right." The trial court held:

     Now, the Court finds from this proffer that this would go to Neal's entire competence and could
     not be extracted for the sole purpose of whether or not he understood his right to testify or
     whether or not he was, quote, denied the right to testify because he did not have the
     competence to make that decision. The one point that I think is totally being missed here, that
     even if the Court admitted this testimony, the opinion of the Supreme Court on Page 11 and the
     prior filings in this court state that Neal claims that he was denied the right to take the witness
     stand to testify in his own behalf. And obviously because he would have mitigated the sentence
     that was ultimately imposed on him by the jury. And the Court finds that had Mr. Neal been
     allowed to testify to what is now before the court, and that is, that he wanted to go and ask the
     jury to give him the death penalty, the result would have been no change in results in that the
     jury did exactly that what Mr. Neal, from the proof before this court, was seeking to want to
     testify to.

     This court finds that usually to obtain relief the Movant in a trial such as this, as reiterated on
     Page 7 of the Supreme Court (sic), is that Neal has the burden to show a reasonable probability
     that the result of his trial would have been different. And this court finds that from this point on
     this witness, without any further bases (sic) or any other incidences (sic) that could be utilized
     to show that he was denied the right to testify to some facts or facet of the case that would have
     produced a different result, that this is not a matter that would actually be complained of by the
     Movant.

     So for this reason the relevancy of the testimony, the fact that it has already been ruled on by
     the Mississippi State Supreme Court, and the fact that it encompasses Mr. Neal's entire
     competency throughout the entire trial, all of this again is just a rehashing of the same matters
     that have been before the Supreme Court and ruled upon by the members of the Supreme
     Court, and not assigned to this court for hearing. So for all these reasons the testimony of this
     witness will not be allowed, and the objection to her testimony is sustained.

¶25. Dr. Kaufman's testimony was being offered to showed that because of Neal's mental retardation,
he could not make a knowing, intelligent or voluntary waiver of his right to testify. Again this goes to
his overall competence to stand trial and cannot be separated to encompass only the issue before us
now. Neal was found competent to stand trial and all the evidence presented was merely cumulative.
This issue is res judicata under Miss. Code Ann. §99-39-21(3) (Supp. 1993). "Rephrasing direct
appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata." Lockett
v. State, 614 So.2d 888, 893 (Miss. 1992), cert. denied, 510 U.S. 1040 (1994); Irving v. State, 498
So.2d 305 (Miss. 1986), cert. denied, 481 U.S. 1042 (1987); Gilliard v. State, 446 So.2d 590 (Miss.
1984). This issue is without merit.

     5. WHETHER THE CIRCUIT COURT USED AN ERRONEOUS LEGAL STANDARD
     IN DENYING RELIEF.

¶26. Neal contends that the trial court erroneously applied a harmless error analysis in denying him
post-conviction relief. The Uniform Post-Conviction Collateral Relief Act, Miss Code Ann §99-39-
23(7) (Supp. 1995), states:

     No relief shall be granted under this chapter unless the prisoner proves by a preponderance of
     the evidence that he is entitled to such.

See Moore v. State, 587 So.2d 1193, 1196 (Miss. 1991); Schmitt v. State, 560 So.2d 148, 151
(Miss. 1990); McCLendon v. State, 539 So.2d 1375 (Miss. 1989). If the trial court applied the
wrong legal standard in coming to its decision, this Court will not hesitate to reverse and will give no
deference to the findings of the trial court. Schmitt, 560 So.2d at 151; McLendon, 539 So.2d at
1377; Detroit Marine Engineering v. McRee, 510 So.2d 462, 467 (Miss. 1987); Bell v. City of Bay
St. Louis, 467 So.2d 657, 661 (Miss. 1985).
¶27. The trial court in making its ruling stated that Neal as the Movant had the burden of proof. After
examining the depositions and listening to the testimony including that proffered by Dr. Kaufman, the
court found as a matter of fact:

     One: That there has been no change in the mental retardation of the Movant since the
     commission of the crime and the trial held thereon.

     Two: That there has been no change as to the competency of the Movant either in a psychiatric
     vein or in a psychological vein or as to mental retardation. That the Court finds that there is
     absolutely no proof that the Defendant is in anywise in any changed condition today that he was
     in February of 1982 during the trial or in 1981 during the commission of the crime.

     Three: That taking all of the testimony before the Court, there is absolutely no proof that the
     Defendant was ever denied the right to testify. That the only difference in the testimony before
     the Court as to when a certain request occurred and whether or not it was during the first trial
     or the second trial, I believe Mr. Walker was the only one who thought it was during the second
     trial, and I believe everyone agreed it was during the sentencing phase, and I believe everyone
     agreed that the thing that was to be testified to was that Mr. Neal wanted to ask the jury to give
     him the death penalty, a fact the Court finds that the jury saw fit to do without Mr. Neal being
     required to make that request.

     The next finding of fact the Court makes is that from all of the testimony it is undisputed that
     had the Defendant decided to go forward with his testimony, the testimony that he allegedly
     desired to give would have been totally detrimental to the Defendant's case and certainly under
     no stretch of the imagination would have resulted in a positive result to the Defendant. And the
     Court finds that there is absolutely no reasonable probability that the result of his trial would
     have been any different than the result that was obtained.

     From the foregoing findings of fact the Court concludes as a matter of law that the Plaintiff or
     Movant in this Post-Conviction Collateral Relief Act has wholly failed to meet his burden of
     proof and to have this Court grant the relief sought. That this Court finds that the motion
     should be by this court denied; and it is therefore ordered and adjudged that all relief sought by
     the Movant herein be and the same is hereby denied and the Motion for Post-Conviction
     Collateral Relief is hereby overruled.

¶28. The trial court did make a finding of fact that if Neal had been denied the right to testify under
the circumstances it would have been harmless error. However, this does not prove that he used
"harmless error" as the legal standard in reaching his decision to deny relief. The trial court made
several findings of fact before giving its final decision. Although he did not specifically state what
Neal's burden of proof was, the trial judge stated that there was "absolutely no proof that the
Defendant was denied the right to testify." He went on to hold that as a matter of law Neal failed to
meet his burden of proof under the Post-Conviction Collateral Relief Act.

¶29. The trial court was correct in stating that Neal did not meet his burden of proof of showing by a
preponderance of the evidence that he was denied the right to testify. Neal did not testify at the
evidentiary hearing nor did he offer any evidence other than Dr. Kaufman's proffered testimony to
show he did not voluntarily waive the right to testify. Both Joe Dale Walker and John Clay testified
that any decision not to testify was ultimately made by Neal. Neal's sole argument lies in his attempt
to once again bring his competence into issue. This issue is without merit.

                                           CONCLUSION

¶30. Finding that the issue concerning the use of the heinous, atrocious, and cruel aggravating
circumstance at Neal's capital murder trial is not properly before the Court on this appeal from an
evidentiary hearing, we do not address that issue. We find all other issues presented by Neal to be
without merit, and therefore, we affirm the lower court's decision denying Neal's motion for post-
conviction relief.

¶31. LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, SMITH AND MILLS,
JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.




1. See Neal v. State, 451 So.2d 743, 751-56 (Miss. 1984); Neal v. State, 525 So.2d 1279, 1282-83
(Miss. 1987).
