                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 1999-DR-00618-SCT

PAUL EVERETTE WOODWARD

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                              9/20/1995
TRIAL JUDGE:                                   HON. RICHARD W. McKENZIE
COURT FROM WHICH APPEALED:                     PERRY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                       WILLIAM B. KIRKSEY
                                               NATHAN H. ELMORE
ATTORNEYS FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                               BY: MARVIN L. WHITE, JR.
                                                    JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                            CIVIL - DEATH PENALTY - POST
                                               CONVICTION
DISPOSITION:                                   POST-CONVICTION RELIEF DENIED -
                                               03/06/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       EASLEY, JUSTICE, FOR THE COURT:

                                 STATEMENT OF THE CASE

¶1.    Paul Everette Woodward was convicted of the crimes of capital murder (with the underlying crime

of rape), kidnapping and sexual battery of Rhonda Crane and sentenced to death in 1987. Woodward's

conviction and sentence were affirmed by this Court in Woodward v. State, 533 So.2d 418 (Miss.

1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1767, 104 L.Ed.2d 202 (1989), reh'g denied, 490

U.S. 1117, 109 S.Ct. 3179, 107 L.Ed.2d 1041 (1989). In 1993 this Court granted Woodward's motion
for post-conviction relief and remanded the case for re-sentencing on the capital murder charge.

Woodward v. State, 635 So.2d 805 (Miss. 1993). On remand, the circuit court again imposed the death

sentence. Woodward's second death sentence was affirmed by this Court in Woodward v. State, 726

So.2d 524 (Miss. 1997), cert. denied, 526 U.S. 1041, 119 S.Ct. 1338, 143 L.Ed.2d 502 (1999).

¶2.     Woodward filed his Pro Se Petition for Post-Conviction Relief on April 7, 1999. On December

3, 2001, appointed counsel filed an Application for Leave to File Motion to Vacate Death Sentence, which

is presently before the Court. The State has filed its response to the application.

                             FACTS AND PROCEDURAL HISTORY

¶3.     Around noon on July 23, 1986, Rhonda Crane, age twenty-four, was traveling on Mississippi

Highway 29 south of New Augusta in Perry County, Mississippi to join her parents on a camping trip. A

white male driving a white log truck forced her car to stop in the middle of the road. The white male then

exited the truck with a pistol in his hand and forced Crane to get into his truck. The man then drove the

victim to an isolated area, forced her out of his truck and into the woods at gunpoint and forced her to have

sexual relations with him. Rhonda Crane was shot in the back of her head and died.

¶4.     Crane's automobile was left on the highway with the engine running, the driver's door open and her

purse on the car seat. A motorist traveling in a vehicle on the same highway saw a white colored,

unloaded, logging truck moving away from the Crane vehicle, and notified the authorities. Additionally, a

housewife residing on a bluff along the highway at the location of the Crane car noted a logging truck with

a white cab stop in front of her driveway. A white male exited and walked toward the back of his truck

and returned with a blonde haired woman wearing yellow clothing. As he held her by her arm, the male

yelled sufficiently loud for the housewife to hear the words "get in, get in," and forced the blonde woman




                                                     2
into the driver's door of the truck and then drove off. The housewife investigated the scene on the highway

in front of her house, discovered the abandoned Crane car, and notified the authorities.

¶5.     Law enforcement officers began an investigation to locate Crane. The officers discovered that Paul

Everette Woodward unloaded logs at a pulp mill and departed the yard at 11:36 a.m. in a white Mack log

truck. Woodward arrived at his wood yard at approximately 12:45 to 1:00 p.m. The yard manager noted

that he was late arriving at the yard and was wet from sweating. A drive from the mill to the wood yard

takes approximately thirty minutes. A sheriff's deputy stopped Woodward, who was driving a white Mack

logging truck, around 2:00 p.m. on the afternoon of July 23, to ask if he had seen anything that would assist

in the investigation of Rhonda Crane's disappearance. Woodward replied that he had not seen anything.

Through the investigation, it was ascertained that Woodward was the only driver of a white logging truck

operating at the nearby timber yards on that date. On the following day, Crane's body was located in the

nearby wooded area by her father and a friend.

¶6.     Woodward was arrested, and ultimately he made both written and videotaped confessions.

Woodward also confessed to his employer over the telephone. He was charged under a multi-count

indictment with three charges: capital murder with an underlying crime of rape; kidnapping; and oral sexual

battery. Upon a motion for change of venue, Woodward was tried before a jury in Hinds County and

convicted of all three counts of the indictment. After a separate sentencing hearing, the jury sentenced

Woodward to death. On direct appeal, Woodward raised numerous issues regarding the guilt/innocence

phase and the sentencing phase of his first trial. This Court affirmed the conviction and sentence.

Woodward v. State, 533 So.2d 418 (Miss. 1988) (hereinafter Woodward I), cert. denied, 490 U.S.

1028, 109 S.Ct. 1767, 104 L.Ed.2d 202 (1989), reh'g denied, 490 U.S. 1117, 109 S.Ct. 3179, 104

L.Ed.2d 1041 (1989).

                                                     3
¶7.     In Woodward's first application for post-conviction relief he raised eleven issues. This Court

considered the issue of ineffective assistance of counsel and the issues affecting the guilt portion of the trial.

On October 7, 1993, citing Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725

(1990), this Court granted Woodward's motion for post-conviction relief, and remanded the case for re-

sentencing on the capital murder charge. This Court held that Woodward's death sentence was improper

because the sentencing jury was incorrectly instructed regarding the "especially heinous, atrocious, or cruel"

aggravating circumstance. Woodward v. State, 635 So.2d 805 (Miss. 1993) (hereinafter Woodward

II). This Court additionally found that Woodward's trial counsel were ineffective during the sentencing

phase of his trial because counsel failed to offer all of the evidence they had in mitigation. The ineffective

counsel issue provided an independent reason to reverse the sentence and remand it for a new trial on

sentencing. Id. at 810. However, this Court further found that Woodward could not meet the prejudice

prong of the Strickland test as to the guilt phase of his trial. Woodward II, 635 So.2d at 809.

¶8.     On remand for re-sentencing on the capital murder charge, the trial judge granted Woodward's

motion to withdraw the motion for change of venue. The case was originally set for trial on September 19,

1994, however, due to the disqualification of several jurors, the court was unable to seat a jury. The case

was reset and, on September 20, 1995, the jury rendered its verdict that Woodward be sentenced to

death. On direct appeal, this Court affirmed. Woodward v. State, 726 So.2d 524 (Miss. 1997)

(hereinafter Woodward III), cert. denied, 526 U.S. 1041, 119 S.Ct. 1338, 143 L.Ed.2d 502 (1999).

¶9.     Woodward filed his Pro Se Petition for Post-Conviction Relief on April 7, 1999. On December

3, 2001, appointed counsel filed an Application for Leave to File Motion to Vacate Death Sentence, which

is presently before the Court. The State has filed its response to the application.

¶10.    In his pro se petition, Woodward raises four claims:

                                                        4
       I.     Ineffective assistance of counsel at trial in culpability phase.

       II.    Ineffective assistance of counsel at trial in sentencing phase.

       III.   Ineffective assistance of counsel on appeal.

       IV.    The defense did not receive all the material that the State should
              have provided in discovery. The defense did not receive all
              exculpatory material.

¶11.   Woodward's attorneys raise the following eleven contentions in the Application for Leave to File

Motion to Vacate Death Sentence:

       I.     Woodward's defense counsel failed to prevent the jury from
              hearing about the prior convictions, arrests and bad acts of the
              Defendant.

       II.    Woodward's counsel failed to make sure the Court's written orders
              reflected the rulings from the bench.

       III.   The trial court erred in denying Defendant's motion to compel
              disclosure of information regarding mitigating circumstances.

       IV.    The State's expert witness Dr. Charlton Stanley was unqualified to
              render an opinion on the mental state of Paul Woodward.

       V.     The State failed to disclose the opinions of Dr. Stanley.

       VI.    Trial Counsel was ineffective for failing to send Woodward to
              Whitfield State Hospital for a competency hearing.

       VII.   Defense expert Dr. Clarence Thurman was ineffective.

       VIII. Defense Counsel erred in withdrawing their motion for change of
             venue.

       IX.    Defense Counsel failed to properly investigate the case.

       X.     Defense Counsel failed to admit medical records substantiating
              Woodward's claim that he was shot in the back of the head.




                                                  5
        XI.      The Court erred in instructing the jury that it should not be
                 influenced by sympathy.

                                                ANALYSIS

¶12.    In his pro se petition, Woodward asserts that his counsel did not provide adequate representation

at the time of trial, during the sentencing proceeding, and on appeal. Woodward contends that, but for

these inadequacies, the outcome of the culpability phase, sentencing phase, and appeal would have been

different. Woodward also contends that the State did not provide all material it should have in discovery.

Woodward does not refer to any facts and does not cite any authority in his pro se petition.

¶13.    The matter before this Court relates only to the second sentencing trial. This Court has considered

numerous issues raised in Woodward's two direct appeals and his earlier post-conviction-relief petition.

"The 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). Additionally, any claim raised in this application

which was considered by this Court in Woodward's first post-conviction-relief petition would constitute

a second petition and is barred as a successive writ. Id. § 99-39-27(9).

¶14.    Rex K. Jones and Jeff Bradley represented Woodward during his first trial in 1987 and during his

appeal of his conviction and sentence. Terryl Rushing and Elizabeth DeCoux represented Woodward

during his first petition for post-conviction relief. Michael Adelman and Terryl Rushing represented

Woodward during his re-sentencing trial and during his appeal of that sentence. The standard for

determining if a defendant received effective assistance of counsel is well settled. "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



                                                      6
(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 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
                 sentencer--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.




                                                      7
         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).

¶15.     In Woodward's first application for post-conviction relief, this Court considered the issue of

ineffective assistance of counsel and the issues affecting the guilt portion of the trial. This Court found that

Woodward's trial counsel, Jones and Bradley, were ineffective during the sentencing phase of his trial.

However, this Court further found that Woodward could not meet the prejudice prong of the Strickland

test as to the guilt phase of his trial. Woodward II, 635 So.2d at 809-10. Woodward's present assertion

that his counsel were ineffective during the culpability phase of his trial is barred by the doctrine of res

judicata. Miss. Code Ann. § 99-39-21(3). Additionally, "[a] convicted defendant making a claim of

ineffective assistance of counsel must identify the acts or omissions of counsel that are alleged not to have

been the result of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

Woodward has failed to identify any acts or omissions of his counsel in his pro se petition. Accordingly,

Woodward, in his pro se petition, has failed to demonstrate that his counsels' performance during the

sentencing phase and/or on appeal was deficient and that the deficiency prejudiced the defense of his case.

These issues are without merit.

¶16.     Woodward also contends that the State did not provide all material it should have in discovery.

Woodward does not refer to any facts and does not cite any authority in his pro se petition. Woodward

has failed to show that there was any discovery violation. Accordingly, this issue is also without merit.


                                                       8
¶17.       On December 3, 2001, appointed counsel filed an Application for Leave to File Motion to Vacate

Death Sentence, in which they raise eleven issues. The majority of the issues presented relate to claims of

ineffective assistance of counsel.

           I.     Whether Woodward's defense counsel failed to prevent the jury
                  from hearing about the prior convictions, arrests and bad acts of
                  the Defendant.

¶18.       Woodward asserts that his sentence must be vacated because the jury heard evidence of his prior

bad acts. Woodward argues that this evidence was incompetent and inflammatory in character and thus

carries with it a presumption of prejudice. Woodward contends that the admission of the evidence of prior

bad acts was the reason the jury did not list "lack of serious criminal history" as a mitigating factor in their

verdict.

¶19.       During opening statements, Woodward's attorney told the jury about a "dark influence" over him

and that he had claimed to have conversations with the devil. During the defense's case-in-chief,

Woodward's trial counsel called several witnesses who testified about Woodward's background, including

his arrest for stealing a car, his arrest for attempted murder in Louisiana, and his claim to have conversations

with the devil. The defense also called Dr. Clarence Thurman, a clinical psychologist. During cross-

examination of Dr. Thurman, the prosecutor had Dr. Thurman read from a report prepared in 1971, during

Woodward's commitment to the state hospital at Whitfield. That report included a statement from

Woodward's wife that, during one of his blackouts, Woodward lost control and abused her. That report

included another statement from Woodward's wife that he could not recall attempting to strangle a girl in

Louisiana. That report included Woodward's explanation of a suicide attempt as a prank on his wife. In

his closing argument, the prosecutor discussed Woodward's arrests and other bad acts and argued that this

evidence negated Woodward's mitigation argument that he had no significant criminal history.


                                                       9
¶20.      Woodward asserts that his trial counsel were ineffective for introducing this evidence and failing

to object during the prosecution's questioning of these witnesses. The affidavits of Michael Adelman and

Terryl Rushing, Woodward's trial counsel, show otherwise. Counsel both state that it was their trial

strategy to admit evidence that showed that Woodward was basically a good person who had been

troubled all of his life, in an effort to show mitigating circumstances existed. In her affidavit, Terryl Rushing

states,

                   During the defense's case-in-chief, we introduced testimony regarding Paul's arrest
          and conviction for auto theft in about 1968 and his arrest for attempted murder and/or
          attempted rape in Louisiana in about 1971. Paul was never tried or convicted on the
          Louisiana charges. There was confusion over the exact charge in Louisiana and I never
          found out for certain what the charge was, although I understand Paul was indicted. We
          introduced testimony regarding these crimes because we feared the prosecution would be
          able to get into them, anyway.
                   One reason for admitting these prior bad acts was our defense theory that Paul had
          been "troubled" all his life and had wrestled with good versus evil. He had always striven
          to do the right thing but was overwhelmed at the time he killed Rhonda Crane. This theory
          was also supported by conversations Paul claimed to have had with the devil which were
          also introduced by the Defense in its case-in-chief.

In his affidavit, Michael Adelman states,

                  At the sentencing trial we tried to humanize Paul for the jury by presenting him as
          a troubled guy who struggled to do the right thing. We presented evidence of Paul's arrest
          and conviction for auto theft in Memphis in about 1968 as well as Paul's arrest for
          attempted murder and/or rape in Louisiana for which he was not convicted. We also
          presented testimony regarding conversations Paul claimed to have had with the devil.
          Testimony concerning these matters was presented during the defense case-in-chief even
          though they were not mentioned by the State during its case-in-chief.

Woodward's main mitigation argument was that he was mentally ill. It is clear from the record that

Adelman and Rushing, through friendly witnesses, presented the evidence of Woodward's prior bad acts

in the context that those acts were examples of Woodward's long battle with mental illness.




                                                      10
¶21.    Woodward also argues that his trial counsel failed to object during the cross-examination of Dr.

Thurman. The cross-examination of Dr. Thurman was not nearly as damaging as Woodward now

contends. Dr. Thurman's report regarding Woodward's history of mental illness included statements made

during Woodward's commitment to the state hospital at Whitfield. During cross-examination, Dr. Thurman

was able to point out that Woodward had suffered from unexplained blackouts, and that the reports

showed that Woodward had suffered from a "long history of emotional problems, . . . that in 1971 he

completely lost control, attempted to strangle his wife that he loved." Additionally, since Woodward's prior

criminal history was included in Dr. Thurman's report as part of the information which formed the basis for

his opinions, Woodward's trial counsel could not have been successful in any objection raised regarding

the contents of the report. See M.R.E. 611(b), 703 & 705.

¶22.    Adelman and Rushing made strategic choices regarding the mitigation case to be made. This does

not show deficient performance, but sound trial strategy. Woodward has failed to "overcome the

presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). Accordingly, Woodward has not

shown that his trial counsels' performance was deficient, nor has he shown any prejudice to his defense.

This issue is without merit.

        II.      Whether Woodward's counsel failed to make sure the Court's
                 written orders reflected the rulings from the bench.

¶23.    Woodward argues that his trial counsel were ineffective when they failed to make sure that the

written order regarding a motion reflected the ruling from the bench. On September 10, 1986,

Woodward's attorneys, Jones and Bradley, filed a motion in limine seeking to enjoin the prosecution from

referring to prior acts, arrests, and convictions of Woodward. Adelman and Rushing renewed that motion



                                                    11
prior to the re-sentencing trial. Woodward argues that during the hearing on that motion, the trial court

ordered that the ruling would be held in abeyance, but that the order that was entered stated that the motion

was denied. Woodward further asserts that his counsel were ineffective when they failed to object when

the prosecution touched on these matters.

¶24.    Woodward has ignored facts relevant to this issue. Prior to trial, both sides presented numerous

motions to be ruled on, including several motions in limine. During the hearing on the subject motion, the

trial court agreed that arguments would be heard when the issue came up during trial. Woodward asserts

that an order, drafted by the prosecution without approval of the defense, was entered denying the subject

motion. However, Woodward ignores the fact that numerous orders were entered by the trial court on the

same day, including an order that specifically stated that "the Court will not rule until such time as a [sic]

new testimony is attempted to be offered in connection with the evidence of other crimes." One order held

the specific issues involved in the subject motion in abeyance, while the other order denied all other motions

in limine. Woodward has failed to show any deficient performance by his counsel and has failed to show

any prejudice to his defense. This issue is without merit.

¶25.    Woodward also argues that his counsel were ineffective when they failed to object when the State

touched on these matters. This argument was addressed earlier and is without merit.

        III.    Whether the trial court erred in denying Defendant's motion to
                compel disclosure of information regarding mitigating
                circumstances.

¶26.    Woodward argues that the trial court erred in failing to grant his motion to compel disclosure of

information relating to the mitigating circumstances, filed by Woodward's counsel, Jones and Bradley, on

September 10, 1986. The trial court's order states,




                                                     12
        IT IS THEREFORE ORDERED AND ADJUDGED, that the Motion to Compel
        Disclosure of Aggravating Circumstances is hereby overruled and denied in all particulars;
        however, the State is required to produce and [sic] information relating to
        mitigating circumstances pursuant to discovery, as well as Brady
        requirements.

(emphasis added). The State correctly points out that this claim is barred by the provisions of Miss. Code

Ann. § 99-39-21(1). Woodward failed to raise a claim regarding this matter at trial and/or on direct

appeal. Without waiving that bar, this issue is also without merit. The trial court actually granted the relief

that Woodward now complains was denied him.

        IV.      Whether the State's expert witness Dr. Charlton Stanley was
                 unqualified to render an opinion on the mental state of Paul
                 Woodward.

¶27.    Woodward argues that the prosecution's expert witness was not qualified to render an opinion

regarding Woodward's mental state. During the defense's case-in-chief, Dr. Thurman testified that

Woodward had a longstanding emotional problem, dating back to his teen years, and that Woodward was

and is emotionally disturbed. Dr. Thurman testified that, at the time of the crime, Woodward's ability to

appreciate the criminality of his conduct was impaired, that Woodward's capacity to conform his conduct

to the requirements of the law was impaired, and that Woodward was a mentally disturbed individual. In

rebuttal, the prosecution called Dr. Stanley, who was accepted as an expert witness in the areas of forensic

psychology and counseling psychology. Dr. Stanley testified that he did not agree that Woodward had a

longstanding mental disorder, nor could he find data to suggest that Woodward was under the influence

of extreme mental or emotional disturbance at the time of the crime. Dr. Stanley also testified that he

thought Woodward's ability to appreciate the criminality of his conduct and his ability to conform his

conduct at the time of the crime were not impaired.




                                                     13
¶28.    Woodward asserts that none of Dr. Stanley's opinions were reduced to writing, nor did Dr. Stanley

interview Woodward. Woodward argues that an expert may not testify based solely on the opinions and

testimony of other experts. Woodward contends that Dr. Stanley's testimony was inadmissible because

his opinions could not pass the "reasonable certainty" test. Woodward also argues that his trial counsel

were ineffective for failing to object to Dr. Stanley's testimony and that the failure of trial court to exclude

the testimony was prejudicial to the defense.

¶29.    The State correctly points out that Woodward failed to object to Dr. Stanley's testimony both at

trial and on appeal. Therefore, Woodward's claim that the admission of the testimony was error is barred

from consideration by Miss. Code. Ann. § 99-39-21. Without waiving that bar, the State argues that this

issue is also without merit, as is Woodward's contention that his trial counsel were ineffective for failing to

object to the testimony. This Court agrees.

¶30.    Woodward contends that Dr. Stanley's opinions were not reduced to writing nor discovered by

the defense prior to trial. Woodward asserts that his right to confrontation and cross-examination was

violated. However, Dr. Stanley testified for the prosecution during Woodward's first trial and, since

Woodward had the transcript from that proceeding, he cannot now claim that he was surprised by the

testimony.

¶31.    Woodward argues that since Dr. Stanley never personally interviewed Woodward,

Dr. Stanley's opinions about Woodward could not have the degree of certainty required for admission as

expert opinions. Dr. Stanley based his opinions about Woodward on the documents in Dr. Thurman's file,

audiotapes of Dr. Thurman's interviews with Woodward, and Woodward's videotaped and written

confessions. Woodward argues that Dr. Stanley's failure to interview him makes his testimony

objectionable. M.R.E. 703 states,


                                                      14
        The facts or data in the particular case upon which an expert bases an opinion or inference
        may be those perceived by or made known to him at or before the hearing. If of a type
        reasonably relied upon by experts in the particular field in forming opinions or inferences
        upon the subject, the facts or data need not be admissible in evidence.

This Court has held that there is no requirement that a mental health professional actually examine the

defendant before testifying. This Court has stated,

        there is no merit to McGilberry's claim that Dr. Maggio was required to examine personally
        the defendant and/or speak with defense counsel. An expert's opinion may be based on
        facts or data "made known to him at or before the hearing." M.R.E. 703. Furthermore,
        his opinion may be based on the testimony of others which he heard while sitting in the
        courtroom. Id. Likewise, Mississippi's case law supports the position that an expert may
        base his opinion solely on the testimony of others he has witnessed. See Collins v.
        State, 361 So.2d 333, 334 (Miss. 1978) (expert witness may remain in courtroom and
        base his testimony upon the prior testimony of other witnesses). This method is particularly
        useful in criminal cases. Id.

McGilberry v. State, 741 So.2d 894, 918 (Miss. 1999). See also McCaffrey v Puckett, 784

So.2d 197, 203 (Miss. 2001); Sibley v. Unifirst Bank for Sav., 699 So.2d 1214, 1219 (Miss. 1997).

Woodward's contention that Dr. Stanley had to interview Woodward for his testimony to be admissible

is without merit.

¶32.    Woodward finally argues that his trial counsels' failure to object to the admission of Dr. Stanley's

testimony was error and prejudiced the defense. Any objection defense counsel might have raised would

have been properly overruled. Woodward has failed to show that his counsels' performance was deficient

and has failed to show any prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This issue is also

without merit.

        V.       Whether the State failed to disclose the opinions of Dr. Stanley.

¶33.    Woodward argues that, to the extent that Dr. Stanley's testimony was based on anything other than

Dr. Thurman's testimony at trial, it was more than rebuttal and should have been disclosed to the defense


                                                      15
prior to trial. Woodward again contends that Dr. Stanley had a duty to write a report and that report

should have been given to the defense prior to trial. Woodward asserts that, although the defense counsel

were given a brief opportunity to interview Dr. Stanley just before he testified, that the interview was not

sufficient to allow the defense to formulate a proper response and prejudiced the defense. Woodward

argues that URCCC 9.04(A)(4) required the prosecution to disclose a report of Dr. Stanley, prior to trial.

Woodward contends that this violation unfairly impeded his attempts to persuade the jury to grant him

mitigating factors.

¶34.    The State contends that Woodward's claim that the prosecution committed a fatal discovery

violation requiring the vacation of his death sentence is without merit. This Court agrees. URCCC

9.04(A)(4) states,

        A.       Subject to the exceptions of subsection "B," below, the prosecution must disclose
                 to each defendant or to defendant's attorney, and permit the defendant or
                 defendant's attorney to inspect, copy, test, and photograph upon written request
                 and without the necessity of court order the following which is in the possession,
                 custody, or control of the State, the existence of which is known or by the exercise
                 of due diligence may become known to the prosecution:
                 4.      Any reports, statements, or opinions of experts, written, recorded or
                         otherwise preserved, made in connection with the particular case and the
                         substance of any oral statement made by any such expert;

The prosecution did not have a duty to produce a written report, which did not exist, so long as the

substance of any oral statements were furnished. Woodward was not surprised by Dr. Stanley's testimony

and cannot claim prejudice. Dr. Stanley testified during Woodward's first trial, and Woodward had the

transcript of that testimony. Additionally, Dr. Stanley's testimony did not go beyond the scope of rebuttal.

This issue is without merit.

        VI.      Whether Trial Counsel was ineffective for failing to send
                 Woodward to Whitfield State Hospital for a competency hearing.



                                                     16
¶35.    On September 10, 1986, Woodward's counsel, Jones and Bradley, filed numerous motions

regarding Woodward's mental evaluation. In the Motion for Psychiatric Examination of Defendant, counsel

requested that Woodward be examined by a psychiatrist for determination of his mental competency at the

time of the crime.     In the Motion for Funds for Psychiatrist, counsel requested funds to employ a

psychiatrist to conduct an evaluation of Woodward's capacity for criminal responsibility. In the Motion for

Funds for Private Psychiatric Testimony at Sentencing Hearing, counsel requested funds to employ a

private psychiatrist or psychologist to testify on behalf of Woodward regarding mitigating circumstances,

in case there was a sentencing hearing. In the Motion for Private Psychiatric Examination and Testing,

counsel requested that the court grant Woodward the right to be examined by private psychiatrist,

psychologist and other medical experts to determine his sanity at the time of the crime and his ability to aid

in his defense. In the Defendant's Motion for Funds to Conduct a Psychiatric Examination, counsel again

requested funds to conduct a psychiatric examination.

¶36.    Prior to the re-sentencing trial, Woodward's counsel, Michael Adelman, renewed those motions

and specifically requested funds to employ Dr. John Ritter, a psychiatrist and neurologist. Adelman argued

that they did not want a re-examination at Whitfield. Adelman further stated that the motion for psychiatric

evaluation, "in terms of Whitfield, or that type of examination" was moot. After the defense and the

prosecution made their arguments regarding the motions, the following colloquy occurred,

        Trial Court:     I am going to allow Dr. Thurman to continue, if he needs additional funds
                         for additional tests and evaluation, certainly we would grant those, and
                         also am going to allow Mr. Woodward, if he desires for him to do so, to
                         be evaluated by the staff at Whitfield. If you desire that, we will get an
                         order to that effect.
                         All right. No. 21.

        Adelman:         If I understand the Court's ruling, he can continue with Dr. Thurman.



                                                     17
        Trial Court:     Yes.

        Adelman:         By the way I have discussed with Dr. Thurman and Dr. Thurman has
                         indicated that he would want to see Mr. Woodward.

        Trial Court:     I have no problem with that.

        Adelman:         And the question whether or not, he would - we will have to discuss that
                         with Mr. Woodward.

        Trial Court:     And if you want him to be re-evaluated by Whitfield, we will.

        Adelman:         But as far as Dr. Ritter, you are denying those funds?

        Trial Court:     Yes.

 On April 26, 1994, the trial court entered its order stating,

                IT IS, THEREFORE, ORDERED AND ADJUDGED, that the defendant be
        allowed evaluation at Mississippi State Hospital if he so desires psychiatric examination,
        and to continue to have at his disposal Dr. Clarence Th[u]rman, who has previously
        examined the defendant, as well as testified in connection with this matter for the
        defendant's behalf, and to allow the defendant additional funds to continue any examination
        and treatment of the defendant by Dr. Clarence Th[u]rman, and the portion of the Motion
        requesting additional psychiatric expertise is overruled.

¶37.    Woodward now contends that his counsel at his re-sentencing hearing were ineffective because

they failed to have Woodward re-examined by the staff at the state hospital at Whitfield. Woodward points

out that during Michael Adelman's presentation of the subject motions, he argued that an evaluation of

Woodward by a medical doctor, as well as by a psychiatrist, was essential to developing their case. During

the hearing, the prosecution pointed out that Woodward had previously been examined by a medical doctor

at the state hospital.

¶38.    On September 24, 1986, the trial court entered its order that Woodward be transported to the

state hospital at Whitfield for a psychiatric examination. The report from the state hospital was filed on

February 6, 1987 and, in pertinent part, states


                                                    18
         It was the staff's unanimous opinion that [Woodward] is competent to stand trial at the
         present time and knew the difference between right and wrong in relation to his actions at
         the time of the crimes. We have seen no suggestion of psychotic disorder.

The report also states that records from Woodward's previous admission to the state hospital were also

reviewed. That report was signed by a clinical psychologist and the staff neurologist for the state hospital.

After being evaluated at the state hospital, Woodward moved for, and was granted, funds to hire private

psychologist Dr. Clarence Thurman. Dr. Thurman conducted extensive evaluations of Woodward prior

to his original trial and prior to his re-sentencing trial.

¶39.     Woodward's counsel at re-sentencing specifically requested that Woodward not be re-evaluated

at the state hospital and instead requested funds to hire Dr. Ritter. The State argues that Woodward's

counsel knew that the first evaluation from the state hospital was not favorable and any subsequent

evaluation was also likely to be unfavorable. The State contends that this shows sound trial strategy and

not ineffective assistance of counsel. This Court has held,

         Defense counsel's tactical decision not to investigate psychological evidence did not
         deprive defendant of effective assistance of counsel at sentencing phase of capital murder
         trial where defense counsel could have judged that psychological report would have been
         harmful. Wiley v. State, 517 So.2d 1373 (Miss.1987), cert. denied, 486 U.S. 1036,
         108 S.Ct. 2024, 100 L.Ed.2d 610 reh'g denied, 487 U.S. 1246, 109 S.Ct. 6, 101
         L.Ed.2d 957 (1988). Nothing in this report would support an argument that a reasonable
         attorney would present such damaging information to the jury or conduct further
         investigation into Foster's mental state.

Foster v. State, 687 So.2d at 1131-32. Adelman and Rushing made strategic choices regarding the

mitigation case to be made. This does not show deficient performance, but sound trial strategy.

Woodward has failed to "overcome the presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.




                                                         19
Accordingly, Woodward has not shown that his trial counsels' performance was deficient, nor has he shown

any prejudice. This issue is without merit.

        VII.    Whether defense expert Dr. Clarence Thurman was ineffective.

¶40.    Woodward argues that there were deficiencies in Dr. Thurman's evaluation of Woodward and in

his testimony during the trial, to the extent that the requirements of Ake v. Oklahoma, 470 U.S. 68, 105

S.Ct. 1087, 87 L.Ed.2d 53 (1985), were not met. This Court has held that there is no constitutional right

to effective assistance of an expert witness. Brown v. State, 798 So.2d 481, 499 (Miss. 2001), citing

Wilson v. Greene, 155 F.3d 396, 401 (4th Cir. 1998). In Wilson, the United States Court of Appeals

for the Fourth Circuit evaluated the requirements under Ake v. Oklahoma and held that the due process

clause does not prescribe a malpractice standard for a psychiatrist's performance. Id. at 401. No

independent constitutional right to effective assistance of a mental health expert has been recognized by the

United States Supreme Court or this Court. This issue is without merit.

        VIII. Whether Defense Counsel erred in withdrawing their motion for
              change of venue.

¶41.    Woodward's counsel during his first trial filed a Motion for Change of Venue on September 10,

1986. The trial court granted that motion, and Woodward's first trial was held in Hinds County. On April

27, 1994, during hearings on various motions, Woodward's counsel for his re-sentencing trial announced

the withdrawal of the motion for change of venue. The following colloquy occurred,

        Adelman:         Your Honor, the next motion is the motion for change of venue. Upon
                         further reflection and consultation with my client, we are going to withdraw
                         that motion. In fact I have a written ---

        Trial Court:     Let me make absolutely certain, though, Mr. Woodward is aware of that.

        Woodward:        Sir.


                                                     20
        Trial Court:     Are you aware of that?

        Woodward:        Yes, sir. I do wish my attorney to withdraw my motion.

        Trial Court:     So you want it to actually be heard here in Perry County?

        Woodward:        Yes, sir.

        Adelman:         I am going to have him sign it, but it needs to be notarized.

That same day, Woodward's attorneys filed his Motion to Withdraw Motion for Change of Venue, which

was signed by Woodward. The trial court's order granting the withdraw of the motion was entered on June

20, 1994. The case was originally set for jury trial on September 19, 1994, however, due to the

disqualification of several jurors, the court was unable to seat a jury. During voir dire of the special venire,

just prior to declaring the mistrial, the trial court again questioned Woodward's counsel regarding the

withdrawal of the motion to change venue. The following colloquy occurred,

        Trial Court:     Obviously I was going to grant a change of venue when that motion was
                         filed, then the motion was withdrawn. I don't know if that was trial tactics
                         or trial strategy or what, but I feel almost compelled to ask--

                         Mike, did you check with any outside sources or anything that made you
                         determine that you could come here and get a fair trial in Perry County,
                         since you had filed a motion at one time. And you may elect not to
                         answer that. You may consider that as part of your trial strategy. . . .

                         Did you make the determination by yourself, or you and Ms. Rushing
                         make it, or make it in consort with Mr. Woodward, or did you have some
                         outside input of whether or not you could in fact get enough people here
                         to try this case? . . . . And do you now want to call up your motion for a
                         change of venue?

        Adelman:         When I read the transcript I was convinced that Mr. Woodward stood as
                         good, if not better, chance of getting a fair trial in Perry County than he did
                         anyplace else. I read that transcript, I saw what happened in Jackson and
                         I was convinced that --




                                                      21
         Trial Court:      This is not a fair question and you can not answer if you want to. Are you
                           still convinced of that?

         Adelman:          Of course, as the defendant he has the right to stand trial in the county in
                           which he is accused. My offer to Mr. White, and he knows what it is, is
                           still good, and we could resolve this case.

         ....

         White: Knowing that the defense cannot get a fair trial, in an effort to try and coerce a
                plea bargain, the State is not going to agree to plea bargain.

         ....

         Adelman:          First of all, let me say a couple of things.

                           I made the offer to you, Glenn, in good faith, whether you - I understand,
                           and I'm not trying to coerce anybody. That's just an option and I want to
                           make clear that it was open. And I understood your position from day
                           one.

                           Number two, I, in good faith, looked at the options, and we were looking
                           at the coast, and quite frankly, I do not believe that Mr. Woodward can
                           get a fair trial on the [coast].

Woodward's counsel moved for a mistrial and stated that the defense "would like [an] opportunity to confer

at some point, not necessarily today, about the possibility of an agreement on the change of venue." The

trial court encouraged the motion to change venue to be refiled and the prosecutor stated that he thought

it would be impossible to seat an impartial jury in Perry County. In granting the defense's motion for a

mistrial, the trial court stated,

                 Oh, no, and I want this record to be replete with the fact that I'm certainly not
         questioning ineffective of counsel. [sic] I don't mean I don't think that you could have
         worked any harder on behalf of the defendant than you have done.

                  And I personally express the Court's appreciation both to you and Ms. Rushing.

                But what I feared was going to happen did in fact happen. And I think that's just
         what you've got when you've got a county of this size.


                                                        22
The sentencing trial was ultimately reset for September 1995 in Perry County. During voir dire of the

special venire, the prosecution requested

        that the court make a finding of fact concerning the competency and effectiveness of the
        attorneys for the defense counsel on their withdrawal of the motion for change of venue,
        especially in light of the quote, "fixed opinions" that we have had within Perry County,
        Mississippi on the death penalty issue as well as this particular case.

The prosecution requested that the trial court make a finding of fact that defense counsels' decision was

tactical and not ineffective assistance of counsel. The trial court responded that he believed that defense

counsel were extremely competent, with extensive experience in capital cases, and requested that Paul

Woodward comment on the issue. Woodward stated,

        I have no problem with my attorneys. I regard both of them with a highest degree of
        respect. And as a matter of fact keeping the trial here was my decision and they are
        abiding by my wishes.

The trial court found that defense counsel were very competent, proficient and professional.

¶42.    Woodward now contends that the withdrawal of the motion to change venue prevented him from

having a fair and impartial jury and constituted ineffective assistance of counsel. Woodward asserts that

his decision regarding the motion was based on erroneous information received from his attorneys, that his

attorneys had told him if venue was changed, it would be changed to the coast, and that his attorneys did

not discuss with him the possibility that venue might be changed to Adams County. Woodward also states

that he would have agreed to have his case heard in Adams County.

¶43.    Woodward's claim has failed to meet the requirements of Strickland to show ineffective

assistance of counsel. The affidavits of Michael Adelman and Terryl Rushing show that their decision to

withdraw the motion to change venue was sound trial strategy. In her affidavit, Terryl Rushing states that

after the 1994 mistrial, they thought that it might be impossible to seat a jury in Perry County "and for this



                                                     23
reason the District Attorney would have to relent and forgo the prosecution of the death penalty. This was

a strong reason for us keeping the trial in Perry County in 1995." In his affidavit, Michael Adelman states,

                 However, we later decided to withdraw the transfer motion. We did this after full
        consultation with our client. I read the transcript from Paul's first trial and felt the Hinds
        County jury was very hostile toward Paul. I also did not want to go to the coast, because
        the victim was from Jackson County. It was my opinion that a Perry County jury could
        contain a number of white, blue collar men who would be able to relate to Paul and feel
        some sympathy for him.

                At Paul's 1994 sentencing a mistrial was declared because a jury could not be
        seated. The potential jurors were either against the death penalty or were too prejudiced
        against Paul. After further discussions with Mr. Woodward, we decided to keep the case
        in Perry County.

It also clear from the record that the suggestion of moving the trial to Natchez in Adams County was only

briefly mentioned. Woodward was present in chambers during all discussions regarding possible options

for moving the trial. In discussing those options, Adelman indicated that Natchez was one of a few places

that they might consider moving the trial to. In response the trial judge pointed out that in order to change

venue, the new location has to agree that the trial can be held there.

¶44.    The defense's decision to withdraw the motion for change of venue was clearly a matter of trial

strategy. The defendant and his counsel made an informed choice to withdraw the motion. Woodward

has failed to show that his attorneys' performance was deficient. Woodward has also failed to show any

prejudice to his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This issue is without merit.

        IX.     Whether Defense Counsel failed to properly investigate the case.

¶45.    Woodward argues that his trial counsel investigated the case themselves, instead of hiring a trained

investigator. Woodward contends that his attorneys were not trained investigators and that their failure to

seek funds to hire an investigator constituted ineffective assistance of counsel. Woodward argues that

counsels' deficiencies denied him an important element of his defense team.

                                                     24
¶46.    Woodward asserts that neither of his attorneys were "suited to the task of gathering all the

necessary information in this case." However, Woodward does not state what information a trained

investigator would have discovered that his counsel failed to discover. Woodward also does not indicate

how the outcome of his trial would have been different, had a trained investigator been hired. This Court

has consistently held,

        [a] defendant who alleges that trial counsel's failure to investigate constituted ineffectiveness
        must also state with particularity what the investigation would have revealed and specify
        how it would have altered the outcome of trial, Nelson v. Hargett, 989 F.2d 847 (5th
        Cir.1993), or "how such additional investigation would have significantly aided his cause
        at trial." Merritt v. State, 517 So.2d 517, 518 (Miss.1987).

Cole v. State, 666 So.2d 767, 776 (Miss. 1995). See also Brown v. State, 798 So.2d 481, 495

(Miss. 2001). Woodward has failed to show that his counsels' performance was deficient and he has no

claim of actual prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This issue is without merit.

        X.       Whether Defense Counsel failed to admit medical records
                 substantiating Woodward's claim that he was shot in the back of
                 the head.

¶47.    Woodward argues that his trial counsel were ineffective when they failed to admit Woodward's

medical records regarding his gunshot wounds to his head. Woodward contends that the introduction of

these records would have helped make him look more sympathetic to the jury and would have helped show

his mental debilities.

¶48.    Woodward's medical records from St. Dominic Hospital in 1979 show that he was shot in the back

of the head. Those records also show that the bullet fragments were imbedded in his scalp, that they did

not penetrate the skull, and that there was no bone damage. The records also state that Woodward was

knocked down by the shots, but not knocked unconscious. After staying in the hospital for two days for

observation, Woodward was discharged.

                                                      25
¶49.    The defense elicited testimony from Woodward's father regarding this injury. The defense's theory

regarding Woodward's mental debilities was presented to the jury through the testimony of expert and lay

witnesses. The defense also focused on Woodward's mental illness during closing arguments. This Court

finds that the admission of these medical records would have added nothing for the jury to consider and

would have been cumulative. Woodward has failed to show that his counsels' performance was deficient

and that any alleged deficiency caused him prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

This issue is without merit.

        XI.      Whether the Court erred in instructing the jury that it should not
                 be influenced by sympathy.

¶50.    Woodward argues that the jury was instructed to disregard sympathy which was prejudicial and

constitutes reversible error. Woodward is complaining about Sentencing Instruction No. C-1 and

Sentencing Instruction No. S-4. Instruction C-1, which is more than two pages in length, states, in pertinent

part,

                 Members of the jury, you have heard all of the testimony and received the
        evidence introduced in the course of this trial. The Court will presently instruct you as to
        the rules of law which you will use and apply to this evidence in reaching your verdict.

                  When you took your places in the jury box, you made an oath that you would
        follow and apply these rules of law to the evidence in reaching your verdict in this case.
        It is, therefore, your duty as jurors to follow the law which I shall now state to you. On the
        other hand, it is your exclusive province to determine the facts in this case and to consider
        and weigh the evidence for that purpose. The authority thus vested in you is not an
        arbitrary power, but must be exercised with sincere judgment, sound discretion, and in
        accordance with the rules of law stated to you by the Court.
        ....

               It is your duty to determine the facts and to determine them from the evidence
        produced in open court. You are to apply the law to the facts and in this way decide the
        case. You should not be influenced by bias, sympathy, or prejudice. Your verdict should
        be based on the evidence and not upon speculation, guesswork, or conjecture.



                                                     26
                You are the sole judges of the facts in this case. Your exclusive province is to
        determine what weight and what credibility will be assigned the testimony and supporting
        evidence of each witness in this case. You are required and expected to use you [sic]
        good common sense and sound honest judgment in considering and weighing the testimony
        of each witness who has testified in this case.

                Although you as jurors are the sole judges of the facts, you are duty bound to
        apply the law as stated in these instructions to the facts as you find them from the evidence
        before you. You are not to single out one instruction alone as stating the law, but you must
        consider these instructions as a whole.
        ....

(emphasis added). Instruction S-4, which is more than four pages in length, in pertinent part, states,

                  The Defendant has been found guilty of the crime of capital murder. You must
        now decide whether the defendant will be sentenced to death, life imprisonment without
        eligibility for parole, or life imprisonment. In reaching your decision, you may objectively
        consider the detailed circumstances of the offense for which the defendant was convicted,
        and the character and record of the defendant himself. You should consider and weigh any
        aggravating and mitigating circumstances, as set forth later in this instructions, [sic] but you
        are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion,
        prejudice, public opinion or public feeling.
        ....

                Next to return the death penalty, you must find that the mitigating circumstances --
        those which tend to warrant the less severe penalty of life imprisonment -- do not outweigh
        the aggravating circumstances -- those which tend to warrant the death penalty.
        ....

                If one or more of the above aggravating circumstances is found to exist, beyond
        a reasonable doubt, then you must consider whether there are mitigating circumstance(s)
        which outweigh the aggravating circumstance(s). Consider the following elements of
        mitigation in determining whether the death penalty should not be imposed:
        ....

                 If you find from the evidence that one or more of the preceding elements of
        mitigation exists, then you must consider whether it (or they) outweigh(s) or overcome(s)
        the aggravating circumstance(s) you previously found. In the event that you find that the
        mitigating circumstance(s) do not outweigh or overcome the aggravating circumstance(s),
        you may impose the death sentence. Should you find that the mitigating circumstance(s)
        outweigh or overcome the aggravating circumstance(s), you shall not impose the death
        sentence.
        ....


                                                      27
(emphasis added). Woodward contends that the underlined language in both instructions told the jury to

totally disregard sympathy. Woodward argues that the instructions were prejudicial to his case because

a significant portion of his mitigation case was based on arousing sympathy for him from the jury.

Woodward asserts that the instructions constitute reversible error and that his sentence should be reversed.

¶51.    The State correctly points out that Woodward failed to object to these instructions both during trial

and on appeal. Accordingly, the consideration of this claim is barred by the provisions of Miss. Code Ann.

§ 99-39-21(1). Since Woodward has not shown actual prejudice, his failure constitutes a waiver and he

is procedurally barred from raising this issue. Wiley v. State, 750 So.2d 1193, 1209 (Miss. 1999).

¶52.    Without waiving the procedural bar, the State correctly argues that the language at issue does not

prevent the consideration, in toto, of sympathy. This Court has stated that

        the jury cannot be instructed to disregard sympathy altogether. See Evans, 725 So.2d
        at 691. However, they may be cautioned against being swayed by such considerations.
        See id.

Wiley v. State, 750 So.2d 1193, 1209 (Miss. 1999). In California v. Brown, 479 U.S. 538, 107

S.Ct. 837, 93 L.Ed.2d 934 (1987), the U.S. Supreme Court evaluated an instruction that included the

exact language Woodward complains about in instruction S-1. The U.S. Supreme Court held that, when

the instruction was read as a whole, it is "no more than a catalog of the kind of factors that could improperly

influence a juror's decision to vote for or against the death penalty." Id. at 543, 107 S.Ct. at 840. This

Court has cited the Brown decision on this type of jury instruction numerous times. Wiley v. State, 750

So.2d at 1204; Bell v. State, 725 So.2d 836, 865 (Miss. 1998); Holland v. State, 705 So.2d 307,

352 (Miss. 1997); Evans v. State, 725 So.2d 613, 691 (Miss. 1997). In Evans and Holland, this

Court evaluated the same language that Woodward complains about in instruction C-1 and found that the



                                                     28
instruction was proper under both state and federal case law. Evans, 725 So.2d at 690-91; Holland,

705 So.2d at 351-52.

¶53.    "Having approved similar instructions in other cases, we find no error in granting the instruction[s]

in question." Holly v. State, 716 So.2d 979, 986 (Miss. 1998)(citations omitted). This issue is

procedurally barred and, alternatively, without merit.

                                            CONCLUSION

¶54.    In his petitions for post-conviction relief, Woodward asserts that the re-sentencing trial was

constitutionally and procedurally flawed, that his case should be reversed, and that his sentence of death

should be vacated. Several of the issues raised by Woodward are procedurally barred, and all of the issues

raised are without merit. Therefore, Woodward's pro se petition or post-conviction relief and his

application for leave to file motion to vacate death sentence are denied.

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

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




                                                    29
