                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2004-DR-01086-SCT

LAWRENCE BRANCH

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         05/23/2002
TRIAL JUDGE:                              HON. C. E. MORGAN, III
COURT FROM WHICH APPEALED:                CARROLL COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  MISSISSIPPI OFFICE OF CAPITAL POST-
                                          CONVICTION COUNSEL
                                          BY: WILLIAM J. CLAYTON
                                          ROBERT M. RYAN
                                          LOUWLYNN VANZETTA WILLIAMS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: PAT McNAMARA
DISTRICT ATTORNEY:                        DOUG EVANS
NATURE OF THE CASE:                       CIVIL - DEATH PENALTY - POST
                                          CONVICTION
DISPOSITION:                              PETITION FOR POST-CONVICTION RELIEF,
                                          DENIED - 05/17/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    After this Court affirmed on direct appeal Lawrence Branch’s capital murder

conviction and death sentence, Branch filed with us his Petition for Post-Conviction Relief

with Exhibits (PCR) and his Amendment to the Petition for Post-Conviction Relief with

Exhibits (amended PCR) pursuant to the Mississippi Uniform Post-Conviction Collateral

Relief Act (Miss. Code Ann. §§ 99-39-1, et seq. (Rev. 2000)). Also before the Court are the
corresponding responses by the State of Mississippi and Branch’s replies thereto. Finding

that Branch is not entitled to any post-conviction relief, we deny Branch’s PCR and the

amended PCR.

¶2.    Branch was found guilty of capital murder for the January 21, 2001, killing of

Dorothy Jorden. Branch v. State, 882 So. 2d 36 (Miss. 2004). Branch was subsequently

sentenced to death by the same jury. Id. Branch raised nineteen issues on direct appeal and,

finding no reversible error, this Court affirmed Branch’s conviction and death sentence. Id.

Branch’s motion for rehearing was denied September 30, 2004. Branch thereafter petitioned

the United States Supreme Court for writ of certiorari, which was denied March 7, 2005.

Branch v. Mississippi, 544 U.S. 907, 125 S. Ct. 1595, 161 L. Ed.2d. 282 (2005).

                                         FACTS

¶3.    The following facts are gleaned from the opinion of Branch’s direct appeal. A more

complete statement of the facts can be found in that opinion. Branch, 882 So. 2d at 44-47.

¶4.    After working the 3-11 p.m. shift at Heatcraft in Grenada on January 20, 2001,

Lawrence Branch drove to the home of his cousin, Deondray Johnson. Johnson had a piece

of furniture wood with him. The two then went to Dot's Burger Bar ("Dot's"), a restaurant

and club owned by the victim, Dorothy Jorden. Dot’s Burger Bar is located in Coila, a small

community in Carroll County. Branch and Johnson stayed until closing. Before leaving

Dot’s, Branch and Johnson promised to return and give Johnson's mother, Janie Johnson, a

ride home. Branch never returned to give Ms. Johnson a ride home.



                                             2
¶5.    At approximately 4:00 p.m. on January 21, Jorden's body was found inside her home

in a pool of blood. It was apparent that Jorden was beaten in the head outside because there

was a bloody indentation in the ground about the size of an adult head. Jorden's earring was

also found in that indentation. Additionally, a broken stick of wood was found in the woods.

¶6.    Carroll County Sheriff Donald Gray went to Branch's home and took the clothing that

Branch said he wore the night before. Deputies Spellman and Michael Peeples went to

Johnson's house and brought him in for questioning. While at the Johnson home, the officers

found wood which appeared to be identical to the broken stick found in the woods. The

officers also took the clothing Johnson wore the night before.

¶7.    Law enforcement officials questioned Branch at the station, released him to go to

work, questioned Johnson, and then brought Branch in for more questioning. Branch and

Johnson admitted being together all evening, but their stories did not match. A videotape

reveals Branch describing the events after he and Johnson left Dot's. The events described

are as follows: After dropping off Mary Jenkins and Anthony Gatewood, two patrons from

Dot’s who Branch and Johnson agreed to give a ride home, Branch and Johnson stopped on

the side of the road and walked through the woods where they discussed robbing Jorden.

Branch and Johnson watched Jorden leave her house to drive Janie Johnson and a male

companion home. When Jorden returned, Johnson was near a vehicle already parked in the

yard and Branch was alongside the house. That is when Johnson came up from behind and

struck Jorden. Branch stated, “. . . I was just holding her down. I hold [sic] her down where

I could get the money out of her pocket.” He later indicated that he hit Jorden three times and

                                              3
Johnson hit Jorden three times. Then they dragged her body into the house and sat her up

on the floor. After searching for more money, they left with approximately two hundred

dollars and Jorden's pistol.

¶8.    Several days after Branch was arrested, Branch's father, Willie Branch, found a white

plastic bag in high grass and weeds on the Johnsons' property. Willie Branch and Branch's

attorneys turned the bag over to the Sheriff. The bag contained a pistol, money, food stamps,

and coin wrappers.

¶9.    An autopsy was performed on Jorden by Dr. Steven Hayne, and the results revealed

that Jorden died from closed head injuries secondary to blunt force trauma. Based upon the

bruising and tearing of the flesh, Dr. Hayne estimated that Jorden was struck approximately

five to six times on the top of the head and that these blows would have required a

considerable amount of force. Defensive wounds were found on Jorden indicating that she

was conscious during at least part of the attack.

¶10.   Evidence of blood was found on Johnson's clothing, and a DNA comparison revealed

that the blood was Jorden's. Jorden's blood was also found on the broken stick. Tests

likewise confirmed that the two pieces of wood found previously constituted one piece and

that both pieces were consistent with other wood found at Johnson's home. Johnson's palm

print was found on one of the food stamps within the white bag found by Willie Branch. The

pistol found in the bag was traced back to Jorden through the serial number.




                                              4
                                          DISCUSSION

¶11.      Branch raises six grounds for relief in his PCR and the additional claim of mental

retardation in his amended PCR. Those assignments of error are issues III-IX. Issues I and

II are arguments regarding whether procedural bars and the doctrine of res judicata should

apply in this case. These issues will be addressed in order.

          I.     THE DOCTRINE OF RES JUDICATA AS A PROCEDURAL
                 BAR TO GENERAL POST-CONVICTION CLAIMS

¶12.      Branch contends that the claims raised in his petition for post-conviction relief are so

meritorious and of such a nature that the procedural bar known as the doctrine of res judicata

should not apply in this case. Miss. Code Ann. § 99-39-21(3) (Supp. 2006) states: “The

doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and

on direct appeal.” Branch argues that “drastic changes in the capital case law landscape have

placed a significantly increased burden on the appellate courts in cases where a life is at

stake.”

¶13.      In Lockett v. State, 614 So. 2d 888 (Miss. 1992), this Court considered the post-

conviction application of Carl Daniel Lockett, who like Branch, was convicted of capital

murder and sentenced to death. Also like Branch, Lockett readily admitted that some of the

issues raised in his post-conviction application were raised on direct appeal and decided

adversely to him. Id. at 893. Lockett urged this Court to “reconsider precedent governing

those issues and address the claims raised because each claim concerns issues still debated

in this country’s death penalty jurisprudence.” Id. This Court stated:


                                                 5
       The procedural bars of waiver, different theories, and res judicata and the
       exception thereto as defined in Miss. Code Ann. § 99-39-21(1-5) are
       applicable in death penalty PCR Applications. Irving v. State, 498 So. 2d 305
       (Miss. 1986); Evans v. State, 485 So. 2d 276 (Miss. 1986). Rephrasing direct
       appeal issues for post-conviction purposes will not defeat the procedural bar
       of res judicata. Irving v. State, 498 So. 2d 305 (Miss. 1986); Rideout v. State,
       496 So. 2d 667 (Miss. 1986); Gilliard v. State, 446 So. 2d 590 (Miss. 1984).
       The Petitioner carries the burden of demonstrating that his claim is not
       procedurally barred. Miss. Code Ann. § 99-39-21(6) (Supp. 1991); Cabello v.
       State, 524 So. 2d 313, 320 (Miss. 1988). However, “an alleged error should be
       reviewed, in spite of any procedural bar, only where the claim is so novel that
       it has not previously been litigated, or, perhaps, where an appellate court has
       suddenly reversed itself on an issue previously thought settled.” Irving v.
       State, 498 So. 2d 305, 311 (Miss. 1986).

614 So. 2d at 893 (footnote omitted).

¶14.   In today’s case, the State contends that “every single assignment of error set forth in

Branch’s Petition for Post Conviction Relief is barred under the doctrine of res judicata.” In

our analysis, each of the issues raised by Branch in his PCR and his amended PCR will be

reviewed to see if he has demonstrated a novel claim or a sudden reversal of law relative to

his claim that would excuse him from the procedural bar. If Branch has not made such a

showing, the procedural bar of res judicata applies.

       II.    THE DOCTRINE OF RES JUDICATA AS A PROCEDURAL
              BAR TO CLAIMS OF INEFFECTIVE ASSISTANCE OF
              COUNSEL AND MENTAL RETARDATION

¶15.   On direct appeal, Branch presented claims of ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), and

mental retardation under Atkins v. Virginia, 536 U.S.304, 122 S. Ct. 2242, 153 L. Ed. 2d 335




                                              6
(2002). See Branch v. State, 882 So. 2d at 49-59. This Court rejected those claims. Id.

Branch now asserts that he should not be precluded from raising the same issues again.

       A.     M.R.A.P. 22(b) and a meaningful opportunity to seek post-conviction
              relief.

¶16.   Branch’s argument is similar to that presented in Issue I, being that procedural bars

should not apply because the direct appeal process did not allow him an adequate opportunity

to present a fully developed argument to support his Strickland and Atkins claims. He

further asserts that the direct appeal process does not allow him access to the files of trial

counsel, law enforcement officials, and the prosecutor, or allow him to secure a mitigation

expert or an evidentiary hearing, otherwise available under M.R.A.P. 22(c), (d), and (e).

¶17.   Branch argues that no procedural bar should prevent this Court from reconsidering his

Strickland and Atkins claims. Further, Branch asserts his right to effective post-conviction

relief counsel, and argues that failure of this Court to reconsider his Strickland and Atkins

claim would deny him that right.

¶18.   Branch was represented on direct appeal by counsel other than his trial counsel.

M.R.A.P. 22(b), as it existed at the time of Branch’s trial and direct appeal, stated:

       Issues which may be raised in post-conviction proceedings may also be raised
       on direct appeal. Where the appellant is represented by counsel who did not
       represent the appellant at trial, the failure to raise such issues on direct appeal
       shall constitute a waiver barring consideration of the issues in post-conviction
       proceedings.1


       1
        M.R.A.P. 22(b), amended effective February 10, 2005, now states: “Issues which
may be raised in post-conviction proceedings may also be raised on direct appeal if such
issues are based on facts fully apparent from the record. Where the appellant is represented

                                               7
Branch, 882 So. 2d at 49. Branch raised the issues of mental retardation and ineffective

assistance of counsel on direct appeal. Extraneous facts and appendices submitted on direct

appeal that were not part of the trial record were challenged by the State; however, this Court

allowed consideration of the extraneous material. For reasons fully discussed in the opinion

on Branch’s direct appeal, this Court held that “Branch must raise Atkins and ineffective

assistance of counsel issues in this direct appeal or he will be barred from doing so in

subsequent appeals.” Id. Therefore, this Court permitted Branch to proceed with these

issues, and we considered the additional documents supplied in his Appendices to Original

Brief of Appellant. Id.

¶19.   This Court has also previously stated that “[i]f new counsel on direct appeal is

required to assert collateral claims, there must be an opportunity to submit extraneous facts

and discovery and evidentiary hearing to develop and prove the allegations.” Id. (citing

Brown v. State, 798 So. 2d 481, 491 (Miss. 2001); Smith v. State, 477 So. 2d 191, 195 (Miss.

1985); Turner v. State, 590 So. 2d 871, 874 (Miss. 1991); and Jackson v. State, 732 So. 2d

187, 190 (Miss. 1999)). Thus, Branch’s argument that M.R.A.P. 22(c) violates his federal

and state constitutional rights is without merit.




by counsel who did not represent the appellant at trial, the failure to raise such issues on
direct appeal shall constitute a waiver barring consideration of the issues in post-conviction
proceedings.” (Emphasis added to indicate the 2005 amendment).

                                               8
       B.     Claims of mental retardation.

¶20.   Branch asserts that he has not been afforded an opportunity to present a mental

retardation claim.    He asserts that such claims are appropriate for post-conviction

proceedings but he was forced to present the issue on direct appeal. He further asserts that

he has tried to comply with the requirements of Chase v. State, 873 So. 2d 1013 (Miss. 2004)

and this Court has consistently refused to allow him to comply.

¶21.   In Chase, this Court set the limits and defined the procedure which will safeguard the

Eighth Amendment protection of mentally retarded persons, as required by Atkins. Chase

was handed down on May 20, 2004 – seven weeks after Branch’s direct appeal was

submitted on March 31, 2004, and one week before Branch’s direct appeal was decided on

May 27, 2004.

¶22.   Branch filed a motion for rehearing and argued that he must be given an opportunity

to comply with the procedure established in Chase. Attached to Branch’s motion for

rehearing as “Exhibit A” was an undated affidavit from Daniel Grant, Ph.D.2 The State filed

a motion to strike the exhibit, and this Court granted the motion. Branch v. State, 2004

Miss. LEXIS 1219 (Miss. Sept. 30, 2004).




       2
        The same exhibit appears as “Exhibit 2” of Branch’s PCR , although unsigned by Dr.
Grant. In Branch’s PCR reply brief, the affidavit appears as “Exhibit 1,” this time signed but
undated.

                                              9
¶23.   First, Branch’s argument that he has not had a single opportunity to present a mental

retardation claim is false. The issue of Branch’s mental retardation was considered on its

merits. Specifically, this Court held:

       The burden of proof is on the defendant claiming mental retardation. Goodin
       [v. State], 856 So. 2d [ ] at 276 (¶ 22). In Goodin, we pointed out that:

       The Legislature adopted the following standard in Miss. Code Ann. § 41-21-
       61(f) (Rev. 2001), dealing with commitments, which states in part:

              (f) "Mentally retarded person" means any person (i) who has
              been diagnosed as having substantial limitations in present
              functioning, manifested before age eighteen (18), characterized
              by significantly subaverage intellectual functioning, existing
              concurrently with related limitations in two or more of the
              following applicable adaptive skill areas: communication, self-
              care, home living, social skills, community use, self-direction,
              health and safety, functional academics, leisure and work. . .

       Goodin, 856 So. 2d at 276-77 (¶ 23).

       Branch argues that he is mentally retarded and, therefore, cannot be executed
       for this crime. In support of his argument, Branch relies solely on the
       Psychological Evaluation performed by the Region VI Mental Health-Mental
       Retardation Center on March 15, 1985, and the synopsis of that diagnosis in
       the 2002 court-ordered evaluation performed after Branch was arrested. Both
       documents were available to trial counsel; however, apparently as part of a
       trial strategy, neither document was used in the trial of this case.

       At the time of the 1985 evaluation, Branch was five years, three months old.
       Then seventeen years later and after his arrest in this case, the trial court
       ordered W. Criss Lott, Ph.D., a clinical psychologist, to perform a mental
       evaluation on Branch. In doing so, Dr. Lott acknowledged the previous testing:

              On that evaluation [Branch] obtained an IQ of 68 on the
              Stanford-Binet Intelligence Scale, Form L-M. He also obtained
              an IQ of 41 on the Peabody Picture Vocabulary Test, Form B,
              and a Social Age Equivalent of 6.0 and Social Quotient of 113
              (this appears to be a mistake). He also obtained a mental score

                                              10
              of 3 years 6 months on the Goodenough-Draw-A-Man-Test. At
              that time he received the diagnosis of mild mental retardation
              with unknown etiology.

       However, the March 10, 2002, forensic mental evaluation of Branch reveals
       a different result. Branch was administered two separate tests. The Wechsler
       Adult Intelligence Scale-III (WAIS-III) revealed a verbal IQ of 91 (low
       average range), a performance IQ of 76 (borderline range), and a full scale IQ
       of 84 (low average range). The Wide Range Achievement Test-III (WRAT-3)
       revealed a reading score in the average range and at the high school level; the
       arithmetic score was in the low average range and at a sixth grade level. Dr.
       Lott indicated that "the results are considered an accurate reflection of his
       current level of functioning."

       While Branch may have manifested intellectual limitations at the age of five,
       he does not have substantial limitations in present functioning which "exist[]
       concurrently with related limitations in two or more of the following
       applicable adaptive skill areas: communication, self-care, home living, social
       skills, community use, self-direction, health and safety, functional academics,
       leisure and work." In fact, Branch has displayed no limitations in these
       adaptive skills areas. At the time of the evaluation, Branch was appropriately
       groomed and properly maintained personal hygiene, possessed a driver's
       license, was responsible for buying clothing, groceries, and personal items. He
       completed school through the 9th grade and attended GED classes. Branch was
       employed at the time of his arrest. Branch performed household chores for
       relatives and people in the neighborhood. He helped raise money for the
       church and community.

       Under these facts, Branch has not made a prima facie showing that he falls
       within the category of persons protected under Atkins. Under the guidelines
       of the American Psychiatric Association, Branch only meets the third criterion,
       that consisting of an onset of the manifestation prior to age 18; however,
       Branch fails to meet either of the first two criterion. Therefore, this issue is
       without merit.

Branch, 882 So. 2d at 50-51.

¶24.   Branch filed his Petition for Writ of Certiorari with the United States Supreme Court

on December 29, 2004, and his petition was placed on the docket January 4, 2005 as No. 04-


                                             11
7946. Branch v. Mississippi, 544 U.S. 907 (2005). In his third issue before the United

States Supreme Court, Branch argued that this Court was required to consider Dr. Grant’s

affidavit in light of the intervening decision in Chase. The U.S. Supreme Court denied

Branch’s petition for writ of certiorari on March 7, 2005. Id.

¶25.     In Chase, we set forth specific requirements to be followed by the small number of

persons with mental retardation claims convicted before Atkins and Chase were handed

down. Chase, 873 So. 2d at 1023. This Court made clear that as a person convicted before

Atkins was handed down, Chase could not be constitutionally denied the opportunity to

present his mental retardation claim to the trial court where he had demonstrated that his IQ

fell within the range of possible mental retardation, and he presented an affidavit of a mental

health care professional that he suffered from “mild retardation.” Id. Here, Branch has not

complied with the necessary procedures nor provided the necessary documentation to

rightfully comply with our holding in Chase. Therefore, we decline to grant relief on this

issue.

         C.     Effective assistance of counsel on direct appeal.

¶26.     Finally, Branch argues that if his appellate counsel was duty-bound to present post-

conviction claims on direct appeal, then his appellate counsel was ineffective in the manner

in which Branch’s mental health was presented. Specifically, Branch accuses appellate

counsel of “hurriedly” obtaining a few affidavits, which Branch asserts were “generic,

boilerplate statements that conveyed little note (sic) about Petitioner’s mental state,

background, or intellectual functioning.”

                                              12
¶27.   The test for ineffective 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, 466 U.S. at 686. In order to prevail on this

claim, Branch must demonstrate that counsel's performance was deficient and that the

deficiency prejudiced the defense of the case. Id. at 687. “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).

¶28.   Defense counsel is presumed competent. Washington v. State, 620 So. 2d 966 (Miss.

1993). However, even where professional error is shown, a reviewing court must determine

whether there 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). When reviewing a case involving the death penalty, the most important inquiry

is “whether there is a reasonable probability that, absent the errors, the sentencer–including

an appellate court, to the extent it independently re-weighs the evidence–would have

concluded that the balance of the aggravating and mitigating circumstances did not warrant

death.” Strickland, 466 U.S. at 695. If Branch’s post-conviction application fails on either

of the Strickland prongs, the proceedings end. Foster v. State, 687 So. 2d 1124, 1129-30

(Miss. 1996).



                                              13
¶29.   Branch’s appellate counsel presented evidence to this Court on direct appeal, over the

State’s objection, in support of Branch’s mental retardation claim. The extraneous evidence

included the forensic mental evaluation of Branch performed on February 28, 2002, by W.

Criss Lott, Ph.D., a clinical psychologist, as well as the mental evaluation of Branch

performed on March 15, 1985, when Branch was only five years old. Also presented were

the affidavits of Dr. Lott, numerous family members, and several of Branch’s former

teachers. Once this Court affirmed Branch’s conviction and sentence on direct appeal,

Branch’s appellate counsel filed a motion for rehearing with an additional affidavit from Dr.

Grant, which this Court struck upon motion by the State. Counsel for Branch then placed

this issue before the United States Supreme Court in a petition for writ of certiorari.

¶30.   We find that Branch has failed to show that his appellate counsel was deficient and,

therefore, he has failed to meet the burden placed upon him by the first prong of Strickland.

Additionally, Branch’s claim of mental retardation failed on the merits on direct appeal. “We

must caution that other issues which were either presented through direct appeal or could

have been presented on direct appeal or at trial are procedurally barred and cannot be

relitigated under the guise of poor representation by counsel.” Foster, 687 So. 2d at 1129.

       III.   ADMISSION OF VICTIM IMPACT TESTIMONY

       IV.    REFUSAL OF DEFENSE SENTENCING INSTRUCTIONS DS-1,
              DS-5, AND DS-10

       V.     REFUSAL OF DEFENSE SENTENCING INSTRUCTION DS-2,
              DEFINITION OF “MITIGATING CIRCUMSTANCES”



                                             14
       VI.    REFUSAL OF DEFENSE SENTENCE INSTRUCTION DS-1,
              THE BURDEN OF PROOF

       VII.   EFFECTIVENESS OF COUNSEL AT ALL STAGES OF THIS
              PROSECUTION

              A.1.   INVESTIGATION AND PRESENTATION OF
                     BRANCH’S MENTAL RETARDATION CLAIM
                     DURING THE PENALTY PHASE OF THE TRIAL

              A.2.   FAILURE TO INTRODUCE MENTAL HEALTH
                     MITIGATION OTHER THAN THE FINDING OF
                     MENTAL RETARDATION

              A.3.   FAILURE TO INVESTIGATE

       VIII. STATE’S BURDEN TO SHOW THAT DEATH WAS THE
             APPROPRIATE SENTENCE IN THIS CASE

       IX.    CLAIM OF MENTAL RETARDATION

¶31.   Each of the Issues III - IX was raised on direct appeal and decided adversely to

Branch. See Branch, 882 So. 2d 36.3 With the exception of Branch’s Issue IX,4 these issues


       3
        Issue III, Id. at 67-68 (as Issue VIII);
       Issue IV, Id. at 68-71 (as Issue IX);
       Issue V, Id. at 72 (as Issue XI);
       Issue VI, Id. at 71-72 (as Issue X);
       Issue VII, Id. at 51-52 (as Issue II);
       Issue VII A.1., Id. at 52-53(as Issue II. A.1.);
       Issue VII A.2., Id. at 53 (as Issue II A.2.);
       Issue VII A.3., Id. at 53-55 (as Issue II A.3.);
       Issue VIII, Id. at 72-74 (as Issue XII); and,
       Issue IX, Id. at 49-51(as Issue I.).

       4
       Branch’s argument on Issue IX of his Amendment to Petition for Post-Conviction
Relief with Exhibits (beginning at page 3) is identical to the argument presented in his
Original Brief of Appellant filed on direct appeal (beginning at page 3) with the exception

                                              15
and their respective arguments presented in Branch’s PCR are identical, almost verbatim, to

the arguments presented in Branch’s Original Brief of Appellant on direct appeal. Branch

has not demonstrated a novel claim nor a sudden reversal of law relative to these issues

which would exempt a single one of these claims from the procedural bar of res judicata

pursuant to Miss. Code Ann. § 99-39-21(3) (Supp. 2006). See also Lockett v. State, 614 So.

2d 888, 893 (Miss. 1992) (citing Rideout v. State, 496 So. 2d 667 (Miss. 1986); Gilliard v.

State, 446 So. 2d 590 (Miss. 1984)).

¶32.   For the foregoing reasons, this Court finds that Lawrence Branch is not entitled to

post-conviction relief; therefore, we deny Branch’s Petition for Post Conviction Relief with

Exhibits and his Amendment to Petition for Post-Conviction Relief with Exhibits.

¶33. PETITION FOR POST-CONVICTION RELIEF WITH EXHIBITS AND
AMENDMENT TO THE PETITION FOR POST-CONVICTION RELIEF WITH
EXHIBITS, DENIED.

     SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY GRAVES, J.


       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶34.   Because Branch has presented sufficient evidence of mental retardation and because

such a claim is not procedurally barred, I must dissent.

I. Branch has Presented Sufficient Evidence of Mental Retardation.


of the added citations to Chase v. State, 873 So. 2d 1013 (Miss. 2004). As discussed in
Issue II, this claim is barred by the doctrine of res judicata. Miss. Code Ann. § 99-39-21(3)
(Supp. 2006).

                                             16
¶35.   The majority’s assertion that “Branch has not complied with the necessary procedures

nor provided the necessary documentation to rightfully comply with our holding in Chase”

does not comport with the record. The majority conveniently fails to mention two critical

facts: (1) that Dr. Gant’s affidavit states that Dr. Lott’s previous assessment cannot be relied

upon as a determination of mental retardation and (2) that Branch’s most recent testing shows

that he falls within the definition of mental retardation as defined by Atkins.

¶36.   This Court previously relied on a report by Dr. Criss Lott which merely determined

that Branch was competent to stand trial. Dr. Gant states in his affidavit that because the

examination was aimed at determining competency, the report cannot be relied upon for

determining mental retardation. Specifically, Dr. Gant finds the report insufficient to

determine mental retardation because (1) Branch was given an abbreviated Wechsler Adult

Intelligence Scale which can only give an estimated IQ; (2) there are a number of

abnormalities in the test scores; and (3) the report did not assess the differences in the 1985

and 2002 test scores. Dr. Gant went on to say that, in his expert opinion, Branch was

mentally retarded and had an IQ of 75 or below.

¶37.   The majority also completely fails to mention that attached to Branch’s petition is a

report concluding that Branch “meets all criteria for a diagnosis of mental retardation.” This

report is a result of Dr. Marc Zimmerman’s October 7, 2005, examination of Branch.

According to his report, Dr. Zimmerman used the following assessment techniques to

determine Branch was mentally retarded: clinical interview, Wechsler Adult Intelligence




                                              17
Scale-III, Short Category Test, Screening Test for the Luria-Nebraska Neuropsychological

Battery, and Wide Range Achievement Test-III.

¶38.   Branch has most certainly met the requirements of Chase as he has presented an

expert who has “expresse[d] an opinion, to a reasonable degree of certainty” that: (1) Branch

is mentally retarded as defined by the American Association on Mental Retardation and (2)

he has completed multiple tests and is not malingering. See Chase, 873 So. 2d 1013, 1029

(Miss. 2004) (setting out these two requirements). By turning a blind eye to this evidence,

this Court will be sanctioning the death of a potentially mentally retarded person. The United

States Supreme Court made absolutely clear in Atkins that this is unconstitutional, and we

must allow Branch the opportunity to pursue his Atkins claim in the trial court.

II. Branch’s Atkins Claim is Not Procedurally Barred.

¶39.   Though not explicitly stated, by not considering this evidence the Court treats this

issue as procedurally barred. As we reiterated in Chase v. State, 873 So. 2d 1013, 1023

(Miss. 2004), “[i]t is not our function to determine whether [the defendant] is mentally

retarded.”   Rather, this Court simply decides whether a defendant has met certain

requirements sufficient to remand the case for a factual determination by a trial court. Id.

¶40.   Branch has never been allowed the opportunity to comply with Chase, which is

clearly an intervening decision. That decision specifically held “for defendants whose trials

were held prior to the publication of this opinion, the affidavit as described above shall be

attached to the defendant’s application for post-conviction relief.” Id. at 1029-30 (emphasis

supplied). Branch attached such an affidavit to his motion for rehearing on direct appeal, but

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it was stricken by this Court. Because we have never allowed Branch the opportunity to

present a prima facie case for an Atkins claim, this issue is not procedurally barred.

¶41.   I am further troubled by the finding of a procedural bar in this case where the State

has attempted to prevent Branch from even receiving the requisite testing. In order for a

medical professional to even examine the defendant, his post-conviction counsel was forced

to obtain an order from the Carroll County Circuit Court allowing the psychologist to enter

the prison. While the Mississippi Department of Corrections would allow Branch’s counsel

and a social worker to visit, it was their policy to require court orders for medical doctors.

The trial judge at this hearing was rightly surprised that such an order was required and that

the State of Mississippi was actually opposing the motion:

       Court:        – Wait a minute. I’m not being asked to order a psychiatric
                     evaluation, am I?

       Defense:      No, sir.

       Court:        I am just being ordered – you are asking for an order to let your
                     guy go there to talk to them.

       Defense:      To let us have a professional examine –

       Court:        – retained by your office?

       Defense:      Sir?

       Court:        I mean I’m not even ordering payment or anything on that, am
                     I?

       Defense:      No, sir. There is not a request for county funds. We are
                     available to do this particular one with funds from our office.
                     But what I think is –


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       Court:        – Let me see y’all’s motion.

                     (Document handed to the Court.)
       Court:        Let me look at it, review it real quick.

                     (Off the record briefly.)

       Court:        Ms. Dotson, they are not asking me to order this. They are just
                     asking for access to this person. What standing do y’all have to
                     object to that, them having access to their client?

¶42.   I share the trial judge’s concern. It is disturbing that the Department of Corrections

would require a court order and that the State would oppose such a motion. In light of these

obstacles, how can this Court expect a defendant to comply with a decision issued only one

week before his direct appeal is decided?

                                        Conclusion

¶43.   Because Branch has fulfilled the requirements of our decision in Chase, I would

remand for an Atkins hearing.

       GRAVES, J., JOINS THIS OPINION.




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