                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 98-DR-00588-SCT
WILLIAM L. WILEY
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:              02/03/95
TRIAL JUDGE:                   HON. ANDREW C. BAKER
COURT FROM WHICH               DESOTO COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR                  ROBERT B. McDUFF
APPELLANT:
                               TIMOTHY HESTER
                               BRIAN P. MILLER
                               ANTHONY R. PICARELLO, JR.
ATTORNEY FOR                   OFFICE OF THE ATTORNEY GENERAL
APPELLEE:
                               BY:       MARVIN L. WHITE, JR.
NATURE OF THE CASE:            CIVIL - DEATH PENALTY - POST CONVICTION
DISPOSITION:                   APPLICATION FOR LEAVE TO FILE MOTION TO VACATE
                               DEATH SENTENCE DENIED - 6/3/1999
MOTION FOR                     6/9/99; denied 2/3/2000
REHEARING FILED:
MANDATE ISSUED:                2/10/2000




     EN BANC.


     PRATHER, CHIEF JUSTICE, FOR THE COURT:




                                  I. STATEMENT OF THE CASE

¶1. This post-conviction relief (PCR) case arises from the 1981 capital murder of a storeowner in the
Mineral Wells community of DeSoto County. During the past seventeen years, the petitioner, William L.
Wiley, has been sentenced to death three times.
¶2. Wiley was originally tried, convicted, and sentenced to death in February, 1982. On direct appeal, this
Court affirmed Wiley's conviction. However, the case was remanded for resentencing, due to comments by
the prosecutor regarding the reviewability of the sentencing jury's decision. See Wiley v. State, 449 So. 2d
756 (Miss. 1984) (Wiley I).

¶3. Wiley's second sentencing trial was held in June, 1984. The jury again sentenced Wiley to death, and
that decision was affirmed by this Court. Wiley v. State, 484 So. 2d 339 (Miss. 1986) (Wiley II), cert.
denied Wiley v. Mississippi, 479 U.S. 906 (1986), overruled by Willie v. State, 585 So. 2d 660
(Miss. 1991). Wiley's subsequent request for post-conviction relief was denied. Wiley v. State, 517 So.
2d 1373 (Miss. 1987) (Wiley III), cert. denied Wiley v. Mississippi, 486 U.S. 1036 (1988).

¶4. Wiley then filed a petition for writ of habeas corpus in the U.S. District Court for the Northern District
of Mississippi. Via an unpublished memorandum, that court denied Wiley's petition.

¶5. Wiley next appealed to the U.S. Court of Appeals for the Fifth Circuit. That court held that Wiley's
death sentence was improper because the sentencing jury was incorrectly instructed regarding the
"especially heinous, atrocious or cruel" aggravating circumstance, pursuant to the United States Supreme
Court decisions in Clemons v. Mississippi, 494 U.S. 738 (1988) and Maynard v. Cartwright, 486 U.S.
356 (1988). Wiley v. Puckett, 969 F. 2d 86, 105-106 (5th Cir. 1992) (Wiley IV). The Fifth Circuit
instructed the District Court to issue a writ of habeas corpus unless the State of Mississippi initiated
appropriate proceedings within a reasonable time. Id.

¶6. Wiley then filed with this Court a motion and application for life sentence, or, in the alternative, for a
new sentencing hearing. In October, 1993, this Court ordered a new sentencing hearing for Wiley. Wiley
v. State, 635 So. 2d 802 (Miss. 1993) (Wiley V).

¶7. In February, 1995, Wiley was sentenced, once again, to death. This Court affirmed that sentence in
February, 1997. Wiley v. State, 691 So. 2d 959 (Miss. 1997) (Wiley VI), rehearing denied Wiley v.
State, 693 So. 2d 384 (Miss. 1997) (and motion for substitution of counsel granted), cert. denied Wiley
v. Mississippi, 522 U.S. 886 (1997).

¶8. On April 17, 1998, Wiley filed an "Application for Leave to File Motion to Vacate Death Sentence"
with this Court. On July 1, 1998, Wiley filed an "Amended and Restated Application for Leave to File
Motion to Vacate Death Sentence", in which he raises the following issues for consideration by this Court:

A. Whether Wiley was denied his constitutional right to the effective assistance of counsel at his
sentencing?

      1. Whether Wiley's trial counsel was ineffective for failing to object to the State's improper
      suggestions that Wiley would be paroled if the jury did not sentence him to death?

      a. at voir dire?

      b. at witness examination?

      c. at closing argument?

      2. Whether Wiley's trial counsel was ineffective for failing to oppose the complete
     elimination of mercy and sympathy from the jury's consideration?

     3. Whether Wiley's trial counsel was ineffective for failing to object to the State's improper
     "send a message" argument during closing argument?

B. Whether Wiley was denied his constitutional right to the effective assistance of counsel on
appeal of his sentencing trial?

     1. Whether Wiley's appellate counsel was ineffective for failing to appeal the jury's finding
     of the "avoiding arrest" aggravating factor?

     a. Whether the evidence in this case can support the jury's finding on the "avoiding arrest"
     aggravating factor?

     b. Whether, if the "avoiding arrest" aggravating factor is broad enough to include the
     evidence in this case, then that aggravating factor is unconstitutionally overbroad?

     c. Whether, if the "avoiding arrest" aggravating factor is broad enough to include the
     evidence in this case, then that aggravating factor impermissibly duplicates the "robbery"
     aggravating circumstance?

     2. Whether Wiley's appellate counsel was ineffective for failing to inform the court of record
     evidence of improper comments by the State regarding the possibility of parole?

C. Whether Wiley was denied his constitutional right to a fair trial?

     1. Whether Wiley's rights were violated by the State's suggestion that Wiley would be
     paroled if the jury did not sentence him to death?

     2. Whether the trial court's striking all references to mercy and sympathy from the jury
     instructions was unconstitutional?

     3. Whether Wiley's rights were violated by the State's improper "send a message"
     argument during closing argument?

     4. Whether the imposition of the death penalty in reliance on the "avoiding arrest"
     aggravating factor was unconstitutional?

     5. Whether Wiley's rights were violated by the trial court's improper discussion with the
     venire about the possibility of parole?

     6. Whether the trial court's failure to instruct the jury on a statutory mitigating factor of
     "diminished capacity" deprived Wiley of his rights?

     7. Whether it was arbitrary and capricious to find that Wiley's death sentence was
     proportional to comparable cases?

D. Whether the cumulation of error in the case requires reversal?

¶9. This Court finds that these issues are without merit. Accordingly, Wiley's motion to vacate sentence, or,
alternatively for leave to file in the trial court, is denied.

                                              II. LEGAL ANALYSIS

¶10. Pursuant to statute:

      Where a conviction and sentence have been appealed to this Court and affirmed, or the appeal
      dismissed, an application under the [Uniform Post-Conviction Collateral Relief Act] must be filed in
      this Court. Miss. Code Ann. § 99-39-7 (1994). This Court may grant or deny any or all relief
      requested in the application or allow the filing of the motion in the trial court. § 99-39-27(7)(a) & (b)
      (Supp.1997).

Jackson v. State, No. 98-DR-00708-SCT, slip op. at 2 (Miss. Jan. 28, 1999). Mississippi Code
Annotated Section 99-39-21 sets forth the procedural bars and the burden of proof that the PCR petitioner
must overcome:

      (1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact
      or law which were capable of determination at trial and/or on direct appeal, regardless of whether
      such are based on the laws and the Constitution of the state of Mississippi or of the United States,
      shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing
      of cause and actual prejudice grant relief from the waiver.

      (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal
      theory or theories shall constitute a waiver of all other state or federal legal theories which could have
      been raised under said factual issue; and any relief sought under this chapter upon said facts but upon
      different state or federal legal theories shall be procedurally barred absent a showing of cause and
      actual prejudice.

      (3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on
      direct appeal.

      (4) The term "cause" as used in this section shall be defined and limited to those cases where the legal
      foundation upon which the claim for relief is based could not have been discovered with reasonable
      diligence at the time of trial or direct appeal.

      (5) The term "actual prejudice" as used in this section shall be defined and limited to those errors
      which would have actually adversely affected the ultimate outcome of the conviction or sentence.

      (6) The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate
      that his claims are not procedurally barred under this section.

Miss. Code Ann. § 99-39-21 (1994). Wiley presents several issues to be reviewed, pursuant to these
statutory guidelines.

A. Whether Wiley was denied his constitutional right to the effective assistance of counsel at his
sentencing?

¶11. Wiley first claims that he was denied effective assistance of counsel at trial.(1)
      The standard for reviewing claims of ineffective assistance of counsel was set forth in Strickland v.
      Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and is well-
      settled:

      Our inquiry under Strickland is twofold:

      (1) Was defense counsel's performance deficient when measured by the objective standard of
      reasonable professional competence, and if so (2) Was [the appellant] prejudiced by such failure to
      meet that standard?

      Hansen v. State, 649 So.2d 1256, 1259 (Miss.1994).

      . . . The "defense counsel is presumed competent and the burden of proving otherwise rests on [the
      appellant]." Hansen, 649 So.2d at 1258; McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)
      (holding that defendant must prove both prongs of the Strickland test).

      "[T]his Court bases its decisions as to whether counsel's efforts were effective on the totality of the
      circumstances surrounding each case." McQuarter, 574 So.2d at 687. This Court's scrutiny of
      defense counsel's performance is highly deferential. See Hansen, 649 So.2d at 1259.

Hodgin v. State, 702 So. 2d 113, 116-17 (Miss. 1997).

¶12. In order to prevail on an ineffective assistance of counsel claim, "the post-conviction applicant to this
Court must demonstrate with specificity and detail the elements of the claim." Woodward, 635 So. 2d at
808; Foster v. State, 687 So. 2d 1124, 1141 (Miss. 1996).

      1. Whether Wiley's trial counsel was ineffective for failing to object to the State's improper
      suggestions that Wiley would be paroled if the jury did not sentence him to death?

¶13. Wiley first argues that his counsel was ineffective for failing to object to suggestions that, if Wiley were
sentenced to life in prison, Wiley would be eligible for parole. The statute in effect at Wiley's third
sentencing trial provided that a jury could sentence a person convicted of capital murder to life in prison or
death. That statute was subsequently amended to provide that a jury could sentence a person convicted of
capital murder to life in prison, life in prison without parole, or death. See Miss. Code Ann. § 97-3-19
(Supp. 1994).

¶14. For cases governed by the old version of the statute, this Court had held that references to the
possibility of parole are inappropriate (except in habitual offender cases, where a person sentenced to life in
prison would automatically be ineligible for parole). See Wiley VI, 691 So. 2d at 964 (quoting Williams
v. State, 445 So. 2d 798, 813 (Miss. 1984)).

¶15. This protection is beyond that required by the United States Supreme Court. O'Dell v. Netherland,
521 U.S. 151, 158 (1997) ("The decision whether or not to inform the jury of the possibility of early
release is generally left to the States.") (California v. Ramos, 463 U.S. 992, 1013, n.30 (1983)).

      a. voir dire.

¶16. The record reflects that -- after intense questioning by the members of the venire during voir dire --
the trial judge admitted that parole was a possibility, if Wiley were sentenced to life in prison. After the
State concluded voir dire, and outside the presence of the jury, defense counsel moved to quash the jury
panel and for a mistrial. The motion was denied. The conversations between the members of the venire and
the trial judge were the main issue on direct appeal. The majority held as follows:

      Most of the cases dealing with this issue have arisen in the context of closing arguments, jury
      instructions, or witness's testimony. See, e.g., Griffin v. State, 557 So.2d 542, 553 (Miss.1990);
      Jessie Derrell Williams, 544 So.2d at 798; Williams, 445 So.2d at 813. The State argues that
      these cases should be distinguished, because the trial court in the case sub judice:

      . . . steadfastly maintained that the sentencing statute stated that life in prison was the punishment. He
      further told the jury not to speculate about what would be done in the future as that was not their
      concern in considering sentence. This situation is totally different than the prosecutor making an
      argument that a defendant should be given the death penalty because a sentence of life imprisonment
      would result in parole.

      The State would submit that this is not an error requiring reversal of this third death sentence. The trial
      court gave accurate information to the three prospective jurors who asked questions regarding parole
      eligibility, and those three jurors did not serve on the jury. The jury was never instructed to consider
      parole eligibility in determining the sentence to be imposed.

      This Court is persuaded by the State's reasoning, and finds that the case sub judice is factually
      distinguishable from Williams and its progeny; for this reason, the analysis expressed in those cases
      will not be extended to apply to this factual situation. See Williams, 445 So.2d at 813; Griffin, 557
      So.2d 542; Jessie Derrell Williams, 544 So.2d 782; Cabello, 471 So.2d 332. The trial judge
      followed this Court's instructions to not speculate on parole. He emphasized that the trial court and the
      jury had no control over parole. When further pressured by the veniremen for a more exact answer,
      the trial judge gave a truthful response. Moreover, at the close of the presentation of evidence, the
      trial judge properly instructed the jury regarding the options of life and death. The trial judge's actions
      in this case did not constitute reversible error; therefore, Wiley's claim on this point is without merit.

Wiley VI, 691 So. 2d at 964. See also Wilcher v. State, 697 So. 2d 1087, 1098 (Miss. 1997)
(factually distinguishing and declining to extend Williams analysis to a case involving voir dire).

¶17. Thus, this issue is res adjudicata. That is, Wiley unsuccessfully argued the merits of the issue on
appeal, and now "is attempting to relitigate this issue under a new heading." See Foster, 687 So. 2d at
1136. Where the merits of the issue have been considered and rejected on direct appeal, and the appellant
"has merely camouflaged the issue by couching the claim as ineffective assistance of counsel", the doctrine
of res adjudicata applies. See id. at 1135- 37. If the merits of the underlying issue have been considered
and rejected on direct appeal, then the appellant cannot show deficiency or prejudice in counsel's
performance with regard to that issue.(2) See id. Therefore, Wiley's argument is res adjudicata and without
merit.

      b. witness examination.

¶18. Wiley next contends that his trial counsel was ineffective for failing to object when the State "seized on
the juror's misperceptions of the possibility of parole [created during voir dire] and inappropriately alluded
to the possibility of parole several times during the course of the sentencing trial."
¶19. Wiley cites three exchanges. The first occurred when the prosecution was cross-examining Dr. Bill
Fox, a psychologist and defense witness:

      Q. He could have instead of laying in wait for 30 to 45 minutes while no one was in that store and
      they were getting ready to close up gone in, concealed his identity, put the gun on Mr. Turner and his
      daughter and got the money and left without killing them, couldn't he?

      A. Uh-huh.

      Q. Now, the fact that he didn't, does that suggest to you that he intended to kill or didn't intend to kill?

      A. Now. I think to me it would point out, again, some of these weak internal controls, poor planning.
      He could have planned it. I think if there were more internal controls working, if he'd wanted to do
      that -- I would see this more as poor judgment on his part as opposed to --

      Q. Well, his internal controls had worked apparently for all his life, the 27 years until then, had it not?

      A. Like I say, I don't know all the history. I don't know of any other significant act of criminality
      before this. We can go along a lot and then at certain times things can come together that will interface
      with these internal controls, substance abuse and that, and you can get behavior that you haven't
      gotten before.

      Q. That's the point. It could have then, and it could now?

      A. Yeah, I --

      Q. There's no way that your science can predict human behavior, is there?

      A. No. I would -- if I'm agreeing with you, I would agree with you that Mr. Wiley needs to stay away
      from any kind of substance abuse, any kind of alcohol, or this type of behavior can occur again.

      Q. And there's absolutely no way that you can ensure that he won't be an abuser, is there?

      A. Well, you'd have to do a lot of structuring, like I said, of the environment. I don't know that we
      can ever say anything is a hundred percent. We can certainly take better precautions. We can try to
      get him in treatment for this. He's not been in treatment, I understand. We can get him in treatment.
      We can try to put stronger inner controls in him than he has.

The possibility of parole is not mentioned in this exchange.

¶20. The second exchange cited by Wiley occurred during the State's cross-examination of defense witness
Dr. Robert Ritter (a neuropsychiatrist):

      Q. Yes. So we could, in fact, say Mr. Wiley acted out his old brain predatory instincts on August 22,
      1981, when he robbed and murdered Mr. Turner and blinded his daughter?

      A. That would be true because at that time he had a diminished cerebral activity, cerebral ability.

      Q. Yes, sir. And, of course, since that time, Mr. Wiley has been in custody?
     A. Yes, sir.

     Q. And, hopefully, he has not had access to any of these substances which he enjoys since he's been
     arrested?

     A. I would assume that to be true, and I think it is true, sir.

     Q. And to go back to your quotation, Biblical quotation earlier, "By their acts shall we know them,"
     by Mr. Wiley's acts we know that on August 22, 1981, he was a robber and a murderer and an
     assaulter and an escaper?

     A. He certainly was. And he was one other thing, two other things: He was a drunk, and he had a
     marginal IQ.

     Q. Yes, sir. And his IQ will not improve?

     A. I beg your pardon?

     Q. His IQ will not improve?

     A. IQ's usually become static after we reach maturity.

     Q. So we don't expect Mr. Wiley's IQ to improve dramatically from this day forward?

     A. No, sir.

     Q. And if he had access to -- you called him a drunk -- if he had access to alcohol or narcotics or
     any of these other substances, because of his lack of inner control he would return right to those
     abuses, wouldn't he?

     A. He does have that tendency, as I see it.

     Q. Which means?

     A. A person who has been addicted to a substance in the past is more likely to return to that
     substance than you or I.

     Q. Which means that Mr. Wiley is capable of repeating this whole process?

     A. Yes, sir.

¶21. Again, the possibility of parole was not mentioned in this exchange. Furthermore, these questions were
asked on cross-examination, and dealt with Wiley's substance abuse problems, an issue which had been
explored on direct examination.

¶22. The final exchange occurred during the State's cross-examination of Reverend Ronald Padgett, a
defense witness and Chaplain at the Mississippi Penitentiary at Parchman:

     Q. There's no -- of course, inmates don't have access to drugs or alcohol or shouldn't have?

     A. Okay, shouldn't have.
      Q. It's a whole lot different than an outside environment?

      A. Yes, it is.

¶23. There is no mention of parole in this exchange. Furthermore, this Parchman Chaplain had testified to
Wiley's good behavior in prison. The State appears to be impeaching this testimony by showing that the
Chaplain did not really know Wiley, and did not know how Wiley behaved prior to being imprisoned. Thus,
Wiley's argument that these questions improperly refer to the possibility of parole is not an accurate
depiction of the record.

¶24. Moreover, these questions appear to be in response to the testimony propounded by these defense
witnesses during direct examination. "The State is allowed to rebut mitigating evidence through cross-
examination, introduction of rebuttal evidence or by argument." Turner v. State, No. 97-DP-00583-SCT,
1999 WL 47758, at *13 (Miss. Feb. 4, 1999) (citing Bell v. State, 725 So. 2d at 836, 849-50 (Miss.
1998); Davis v. State, 684 So.2d 643, 655 (Miss.1996)).

¶25. Also, even if counsel's failure to object to these questions could be considered deficient, Wiley has
proven no prejudice. Therefore, this argument is without merit. See Hodgin, 702 So. 2d at 116-17 (Miss.
1997) (reiterating that burden is on petitioner to prove both prongs of the Strickland test).

      c. closing argument.

¶26. Wiley also argues that his trial counsel was ineffective in handling the following portion of the State's
closing arguments:

      Well, I've seen a lot of psychiatrists and a lot of psychologists take this witness chair and others
      throughout this state and elsewhere, and I guarantee you one thing: They can't tell you what is a killer
      by instinct and what isn't. As the good doctor said, the science of the human mind is not an exact
      science. You can't look at a guy and say he's going to kill or he's not.

      And with all due respect for Mr. Jones' statement that this was a one-time thing, this was a one-time
      thing, there is no proof to support it. You don't know, I don't know, Judge Baker don't know, the
      Turners don't know, Mr. Kelly don't know, Mr. Wiley's lawyers don't know, his family don't know
      whether it's a one-time thing or not and perhaps he don't know.

¶27. The record reflects that defense counsel immediately objected:

      MR. [DEFENSE ATTORNEY] JONES: Your Honor, we object to that. That's speculation. Mr.
      Williams is speculating about other -- there's no proof of that. He has to stay within the bounds of the
      proof. That's not proper argument.

      THE COURT: Let's stay with what's in evidence and logical, reasonable inferences that may be
      drawn.

      BY [PROSECUTOR] WILLIAMS: I think it is supported by the proof, ladies and gentlemen.

      THE COURT: I was trying to think of the testimony of the witnesses.

      MR. WILLIAMS: I think the doctor said that it was probably not likely if there was treatment, if you
      remember the dialogue between the doctor and myself on cross.

      THE COURT: Yes, sir.

¶28. Wiley acknowledges that his attorney objected, but argues that his attorney objected for the wrong
reason:

      Counsel for Wiley objected to this argument as "speculative" because there was no proof of other
      crimes. Apparently, Wiley's counsel believed that the State was implying that Wiley had been
      convicted of previous crimes.

      In fact, the State's argument was not that Wiley had committed other crimes in the past, but rather that
      Wiley was capable of killing in the future . . . if released on parole.

¶29. On direct appeal, this Court rejected Wiley's claims that these comments improperly referred to prior
criminal conduct, and were unsupported by the record. Wiley VI, 691 So. 2d at 964-65. Thus, this Court
has already ruled on the propriety of these comments (albeit in a different context). Furthermore, defense
counsel lodged a contemporaneous objection. In addition, the comment at issue did not mention the
possibility of parole, and, this Court has held that, where such comments "cannot be construed as arguing
the possibility of parole" and are "made in response to defense counsel", then "[t]he prosecutor's remarks
were proper in rebuttal." Faraga v. State, 514 So. 2d 295, 303-04 (Miss. 1987) (citing Evans v. State,
422 So. 2d 737 (Miss. 1982)). For all these reasons, Wiley has failed to demonstrate the requisite
deficiency and prejudice to support his ineffective assistance of counsel claim on this point. See Hodgin,
702 So. 2d at 116-17 (Miss. 1997) (reiterating that burden is on petitioner to prove both prongs of the
Strickland test).

      2. Whether Wiley's trial counsel was ineffective for failing to oppose the complete
      elimination of mercy and sympathy from the jury's consideration?

¶30. Wiley further argues that "[t]rial counsel's failure to prevent the trial court's excision of all references to
mercy and sympathy was unreasonable and fell below an objective standard of reasonable representation in
a capital case." The record reflects that, during the discussion of proposed C-3, the following transpired:

      MR. [DEFENSE ATTORNEY] JONES: Your Honor, one last objection to this instruction is that we
      feel to be totally correct it needs to go forward and say that, Even if you find the aggravating
      circumstances outweigh the mitigating circumstances, you can impose a life sentence.

      THE COURT: You're tendering a mercy instruction, aren't you?

      MR. JONES: Yes, sir. But that language would help us with this instruction because I think it leaves
      the jury with the -- it just leaves them with the feeling that it's a weighing process, if one outweighs the
      other, you've got to go with the one that wins, and that's not the law.

      MR. [PROSECUTOR] WILLIAMS: Your Honor, this is the approved instruction that has been dealt
      with requesting mercy.

The matter was then discussed at length, and, ultimately, the instruction was not revised to include mercy.

¶31. The record also indicates that one sentence in proposed instruction D-7 read: "A mitigating
circumstance is any aspect of the offense or the offender that, in justice and in mercy, should be considered
in favor of a sentence less than death." Upon the State's motion, and without objection from the defense, the
phrase "and in mercy" was deleted from that instruction. The amended instruction was given.

¶32. In addition, the State objected to the words "sympathy" and "mercy" in proposed instruction D-20,
which read: "Mitigating factors are facts that, while they do not justify or excuse the crime, nevertheless in
fairness, sympathy, and mercy to William Wiley, must be considered by you as extenuating or reducing the
degree of his blame or punishment. You may not, however, be swayed by prejudice or public opinion." In
light of the trial court's previous denial of a sympathy instruction, defense counsel asked the trial court to
"perhaps strike sympathy and mercy and grant the rest of the instruction." The instruction was granted, as
revised.

¶33. Wiley argues that his counsel was unfamiliar with the law on this subject, and allowed the trial judge to
strike all references to mercy and sympathy from the instructions. To the contrary, however, the record
reflects that defense counsel argued for mercy instructions, albeit unsuccessfully.

¶34. Wiley argues that, by striking the references to mercy and sympathy from the jury instructions, the trial
judge, in effect, instructed the jury to disregard mercy and sympathy. This is a huge analytical leap. Clearly,
denying a proposed mercy instruction can be distinguished from instructing the jury to disregard mercy
altogether.

¶35. It is true that the jury can not be instructed to totally disregard sympathy or mercy. See Evans v.
State, 725 So. 2d 613, 691 (Miss. 1997). However,

      [w]e have held that mercy instructions are not required and further, that their issuance is within the
      discretion of the circuit court. Foster v. State, 639 So.2d 1263, 1301 (Miss.1994); Jenkins v.
      State, 607 So.2d 1171, 1181 (Miss.1992); Hansen v. State, 592 So.2d 114, 150 (Miss.1991). In
      Jenkins, where no reversible error was found in the lower court's refusal to grant a mercy instruction,
      it was explained that:

      The recent decisions of this Court and of the United States Supreme Court enumerate that a mercy
      instruction is not required at trial. In Ladner [v. State, 584 So.2d 743, 761 (Miss.1991) ], we held
      that a defendant "has no right to a mercy instruction." Ladner, 584 So.2d at 761. In Saffle v. Parks,
      494 U.S. 484, 492-93, 110 S.Ct. 1257, 1262-63, 108 L.Ed.2d 415, 427-28 (1990), the U.S.
      Supreme Court stated that the giving of a mercy instruction results in a decision based upon whim and
      caprice. Thus, the lower court was within its discretion when it denied the mercy instruction below.

      Jenkins, 607 So.2d at 1181. See Foster, 639 So.2d at 1299-1300 (instruction directing jury that it
      need not find any mitigating circumstances to return a life sentence found to be a mercy instruction).

Jackson, 684 So. 2d at 1213, 1239 (Miss.1996). See also Doss v. State, 709 So. 2d 369, 394 (Miss.
1997); Walker v. State, 671 So. 2d 581, 613 (Miss. 1996).

¶36. In fact, this Court and the U.S. Supreme Court have held that a jury can properly be cautioned against
being swayed by sympathy, as long as the jury is not instructed to totally disregard sympathy. See Evans,
725 So. 2d at 691 (citing California v. Brown, 479 U.S. 538, 542-43, 107 S.Ct. 837, 839-40, 93
L.Ed.2d 934 (1987)); Ballenger v. State, 667 So. 2d 1242, 1264 (Miss. 1995). The basis of these
holdings is the understanding that "[t]he State must not cut off full and fair consideration of mitigating
evidence; but it need not grant the jury the choice to make the sentencing decision according to its own
whims or caprice." Holland v. State, 705 So. 2d 307, 352 (Miss. 1997)

¶37. Moreover, the jury received the "catch-all" instruction on mitigating circumstances. That is, the jury
was instructed to consider, as a mitigating factor, any other matter, any other aspect of the defendant's
character or record, and any other circumstance of the offense brought before them during the trial, which
the jury, deemed to be mitigating on behalf of the defendant. "This Court long has accepted the use of a
'catch-all' to encompass any mitigating circumstances not specifically enumerated under Miss. Code Ann. §
99-19-101(6)." Jackson, 684 So. 2d at 1238.

¶38. Thus, even if defense counsel's handling of the proposed mercy instructions could be considered
deficient, Wiley has not been prejudiced in this case. That is, Wiley was not entitled to such an instruction
anyway. Furthermore, the instructions did not preclude the jury from considering mercy or sympathy.
Therefore, Wiley's argument on this point is without merit.

      3. Whether Wiley's trial counsel was ineffective for failing to object to the State's improper
      "send a message" argument during closing argument?

¶39. Wiley argues that his trial counsel was ineffective for failing to object to the following comments, made
during the prosecutor's closing arguments:

      Now, I think it's high time that we have a citizen reaction. It should be made clear to William [Wiley]
      and to anyone else for that matter that the laws of this county are going to be severely enforced with
      the most severe penalty when our innocent victims, our blameless victims are slaughtered, are blinded,
      whose lives are wrecked without any fault of their own. We ought to make it crystal clear. I suggest to
      you, ladies and gentlemen of the jury, that the verdict in this case is a verdict that truth dictates and
      justice demands.

                                                     ***

      Ladies and gentlemen, folks who do these things are accountable for their actions. They should be
      held responsible for their actions. My God, we're not barbarians. We've got laws on our books that
      are there to protect the innocent people who make up the citizens of this county. That's what they're
      there for. They protect you. They protect your family. They protect your friends. They protect your
      loved ones. They even protect the folks you don't like. And they need to be enforced. Folks need to
      understand that when you commit crime like this, you're going to be held accountable. It's just that
      simple.

¶40. This Court has "cautioned prosecutors to refrain from using this type of argument." Wells v. State,
698 So. 2d 497, 513 (Miss. 1997) (citing Hunter v. State, 684 So.2d 625, 637 (Miss.1996); Williams
v. State, 522 So.2d 201, 209 (Miss.1988)). However, in recent cases, this Court has acknowledged that
the warning expressed in previous cases is inapplicable to closing arguments during the sentencing phase of
capital murder cases:

      . . . [T]he danger inherent in the "send a message" argument is that jurors will neglect their duty to
      determine whether "the evidence showed the defendant to be guilty of the crime charged." This danger
      does not exist at the sentencing phase, where the defendant has already been found guilty of capital
      murder. The sole determination to be made at this point is whether the death penalty should be
      imposed. We choose not to fault the prosecution for arguing that the "message" conveyed by a death
      penalty verdict would be different than that urged by the defense. To do so would be disingenuous
      given the inescapable reality that deterrence is, in fact, an established goal of imposing the death
      penalty, which goal necessarily entails, to some extent, sending a message. The trial court did not err
      in permitting this argument by the prosecution.

Wells v. State, 698 So. 2d at 513-14 (Miss. 1997) (citations omitted); Holly v. State, 716 So.2d 979,
985 (Miss. 1998).

¶41. Given this authority, Wiley's argument is without merit. That is, even if defense counsel's performance
could be considered deficient (for failing to object to the prosecutor's comments), there was no resulting
prejudice. See Hodgin, 702 So. 2d at 116-17 (Miss. 1997) (reiterating that burden is on petitioner to
prove both prongs of the Strickland test).

      B. Whether Wiley was denied his constitutional right to the effective assistance of counsel
      on appeal of his sentencing trial?

¶42. Wiley also claims that he was denied effective assistance of counsel on appeal.

      The standard of acceptable performance by an attorney is the same for appellate performance as it is
      for trial performance. Foster v. State, 687 So.2d 1124, 1138 (Miss.1996). One who claims
      ineffective assistance of counsel must show both professional error and resulting prejudice. It is clear
      that there is no constitutional entitlement to errorless counsel. Cabello v. State, 524 So.2d 313, 315
      (Miss.1988). . . . If a post-conviction claim fails on either of the Strickland prongs, the inquiry ends.
      Foster, 687 So.2d at 1130 (citing Neal v. State, 525 So.2d 1279, 1281 (Miss.1987)).

Williams v. State, 722 So. 2d 447, 450-51 (Miss. 1998); Foster v. State, 687 So. 2d 1124, 1138
(Miss. 1996).

      1. Whether Wiley's appellate counsel was ineffective for failing to appeal the jury's finding
      of the "avoiding arrest" aggravating factor?

¶43. Wiley contends that his appellate counsel should have challenged the jury's finding that the capital
offense was committed for the purpose of avoiding or preventing lawful arrest. The record reflects that this
was one of two aggravating factors found by the jury.(3) The record also indicates that defense counsel
unsuccessfully objected to the inclusion of the "avoiding arrest" aggravator in the sentencing instructions.

¶44. The adverse ruling on this objection was not raised for consideration in Wiley's direct appeal to this
Court. Wiley lists three arguments to support his claim that appellate counsel was ineffective for failing to
pursue this issue:

      a. Whether the evidence in this case can support the jury's finding on the "avoiding arrest"
      aggravating factor?

¶45. First, Wiley claims that the evidence was insufficient to support this aggravating circumstance. In
support of his argument, Wiley cites the fact that one of the victims of the crime was not killed. Wiley also
claims that there are no other facts to demonstrate that he attempted to avoid arrest. Wiley contends that
this was a "botched" robbery, which resulted in a murder, but not a murder committed to avoid arrest.
¶46. "The standard for reviewing the sufficiency of the evidence to support an 'avoiding lawful arrest'
instruction is well-settled[.]" Woodward v. State, 726 So. 2d 524, 541 (Miss. 1997).

      Each case must be decided on its own peculiar facts. If there is evidence from which it may be
      reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or
      killers or to 'cover their tracks' so as to avoid apprehension and eventual arrest by authorities, then it
      is proper for the court to allow the jury to consider this aggravating circumstance.

Chase v. State, 645 So. 2d 829, 858 (Miss. 1994) (quoting Hansen v. State, 592 So.2d 114, 153
(Miss.1991)).

¶47. "'Thus, it is this Court's role to inquire into whether there is any credible evidence upon which the jury
could find the aggravating circumstance in question.'" Woodward, 726 So. 2d at 541 (quoting Carr v.
State, 655 So.2d 824, 854 (Miss. 1995)). In the case sub judice, Wiley fired three shots, which killed one
of the two witnesses to the robbery, and seriously injured the other witness. The decedent, a storeowner,
knew Wiley, a patron of the store. Wiley left the murder weapon and a box (which had contained a money
bag) in a nearby, thickly wooded area that had dense undergrowth. The area was described as "gullies,
briars, it was just one big thicket, it was just almost impenetrable." In addition, Wiley left the money bag
"laying in some weeds", in a field near a "dirt road".

¶48. The victims in this case knew Wiley. Furthermore, Wiley's efforts to dispose of and/or conceal the
evidence of his crime are sufficient to support the avoiding arrest instruction. That is, there is evidence from
which the jury could have reasonably inferred that a substantial reason for the murder was to conceal
Wiley's identity, or cover his tracks, so as to avoid apprehension and eventual arrest. Therefore, the
granting of the instruction on this aggravator was proper. See generally Woodward, 726 So. 2d at 541
(the fact that the defendant threw the murder weapon in a creek could reasonably indicate that he did not
want to be arrested).

      b. Whether, if the "avoiding arrest" aggravating factor is broad enough to include the
      evidence in this case, then that aggravating factor is unconstitutionally overbroad?

¶49. Wiley also argues that, if the "avoiding arrest" aggravator is applicable to this case, then it is
unconstitutionally overbroad. He contends that, if all that is required to support an instruction on the
"avoiding arrest" aggravator is the killing of a victim, then all felony murders would, by definition, be
committed for the purpose of avoiding arrest. That is, Wiley asserts that the "avoiding arrest" aggravator
does not genuinely narrow the class of persons eligible for the death penalty. Wiley places great emphasis
on the fact that the second gunshot victim (the decedent's daughter) was not killed. That is, one of the
witnesses to the crime was left alive.(4)

¶50. A similar argument was considered and rejected in Walker v. State, 671 So. 2d 581, 611 (Miss.
1995):

      Walker argues that because every murder necessarily eliminates a witness to that crime, the avoiding
      arrest aggravator must be given with a limiting instruction channeling the jury's focus to those situations
      where there is specific evidence demonstrating that one of the purposes behind the killing was the
      killer's desire to avoid detection and apprehension for an underlying crime. See State v. Williams,
      304 N.C. 394, 284 S.E.2d 437, 455 (1981). However, Walker compares our law to that of
      surrounding jurisdictions and concedes, "Mississippi, like our sister States, does not equate the killing
      of the victim with the elimination of a witness in every case."

      Walker's contention that this aggravator must be accompanied by a limiting instruction has been
      repeatedly rejected by this Court. In Hansen v. State, 592 So.2d 114, 152 (Miss.1991). The Court
      stated:

      It is argued some sort of limiting instruction need be given to narrow this aggravator. In Leatherwood
      v. State, 435 So.2d 645, 651 (Miss.1983), we rebuffed this contenti on, stating, if there is evidence
      from which it may be reasonably inferred that a substantial reason for the killing was to conceal the
      identity of the killer or killers or to 'cover their tracks' so as to avoid apprehension and eventual arrest
      by authorities, then it is proper for the court to allow the jury to consider this aggravating
      circumstance.

      Id. at 152-53.

Walker, 671 So. 2d at 611.


      In Gray v. Lucas, the Fifth Circuit rejected almost identical contentions to those made here. 677
      F.2d [1086] at 1109- 1110 [ (5th Cir.1982) ]. It noted that the Mississippi courts had limited the
      application of the circumstances "to refer to purposefully killing the victim of an underlying felony to
      avoid or prevent arrest for that felony." So construed, the court observed that this factor was directed
      to a legitimate state interest and was "not so broad that it comprehends an impermissibly large group
      of murders." Id. at 1110.

Chase v. State, 645 So. 2d 829, 858 (Miss. 1994). Therefore, this aggravating factor, as construed, is not
overly broad.

¶51. Furthermore, Wiley's assertion is based on the premise that, other than the murder, there is no
evidence of avoiding lawful arrest. As discussed earlier, there is evidence from which it could reasonably be
inferred that Wiley committed the murder to avoid lawful arrest. Therefore, this argument is based on a false
premise and is without merit.

      c. Whether, if the "avoiding arrest" aggravating factor is broad enough to include the
      evidence in this case, then that aggravating factor impermissibly duplicates the "robbery"
      aggravating circumstance?

¶52. Wiley further argues that, if the "avoiding arrest" aggravator is applicable to this case, then the
aggravator impermissibly duplicates the other aggravating circumstance found by the jury (ie: that the capital
offense was committed while Wiley was engaged in the commission of a robbery).

¶53. These arguments are basically a reiteration of those raised in the preceding subsection. As discussed
above, more evidence is required to support the "avoiding arrest" instruction than evidence of a robbery and
a murder. Therefore, Wiley's contentions on this point are without merit.

¶54. Thus, Wiley's ineffectiveness of counsel claim on this point is without merit. That is, even if appellate
counsel's performance could be considered deficient for failing to raise the issue of the "avoiding arrest"
instruction, Wiley has not proven the requisite prejudice to support an ineffectiveness of counsel claim.
Therefore, Wiley's arguments on this point fail. See Hodgin, 702 So. 2d at 116-17 (Miss. 1997)
(reiterating that burden is on petitioner to prove both prongs of the Strickland test).

      2. Whether Wiley's appellate counsel was ineffective for failing to inform the court of record
      evidence of improper comments by the State regarding the possibility of parole?

¶55. As stated earlier, Wiley contends that defense counsel referred to the possibility of parole during
cross-examination of defense witnesses and during closing arguments. On direct appeal, however, Wiley's
counsel only assigned error to the mention of parole during voir dire. As previously noted, this Court
affirmed, and distinguished the comments made during voir dire in this case from other cases, which had
been reversed for similar reasons. Wiley now argues that -- if the other alleged instances of the mention of
parole had been brought to this Court's attention -- then this case could not be distinguished from the cases
which have condemned the mention of parole.

¶56. However, as stated earlier, the possibility of parole was not mentioned in any of the portions of the
record cited by Wiley. Therefore, this argument is not supported by the record. Moreover, even if the
performance of Wiley's counsel could be considered deficient on this point, Wiley has not proven any
resulting prejudice. Thus, this argument is without merit. See Hodgin, 702 So. 2d at 116-17 (Miss. 1997)
(reiterating that burden is on petitioner to prove both prongs of the Strickland test).

C. Whether Wiley was denied his constitutional right to a fair trial?

¶57. Wiley next argues that he was denied his constitutional right to a fair trial, and cites several assignments
of error. Each of these arguments is procedurally barred, because they "were capable of determination at
trial and/or on direct appeal". See Miss Code Ann. § 99-39-21 (1) (1994). See also Foster v. State, 687
So. 2d 1124, 1135 (Miss. 1996) ("[P]ost-conviction relief is very limited and deals with only those
issues undetectable at trial or the appellate level.").

¶58. Furthermore, sub-issues 5, 6, and 7 were considered and rejected on direct appeal, and are,
therefore, barred by the doctrine of res adjudicata. See Miss. Code Ann. 99-39-21 (3) (1994)
("The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial
and on direct appeal."). See also Lockett v. State, 614 So. 2d 898, 902 (Miss. 1992)("Rephrasing
direct appeal issues for post-conviction relief purposes will not defeat the procedural bar of res
judicata.") . Furthermore, Wiley has failed to prove actual prejudice, as is required by the PCR
statutes. For all these reasons, the following issues are without merit.

      1. Whether Wiley's rights were violated by the State's suggestion that Wiley would be
      paroled if the jury did not sentence him to death?

¶59. Wiley argues that the State repeatedly and improperly suggested that Wiley could kill again,
if he were paroled. The only comment Wiley cites specifically is the "one-time thing" comment,
made during the prosecutor's closing remarks. On direct appeal, Wiley also argued that this
comment was improper, and cited a different reason. Therefore, consideration of this issue is
procedurally barred under Miss. Code Ann. Section 99-39-21 (2) (1994), which provides that:

      The litigation of a factual issue at trial and on direct appeal of a specific state or federal
      legal theory or theories shall constitute a waiver of all other state or federal legal theories
     which could have been raised under said factual issue; and any relief sought under this
     chapter upon said facts but upon different state or federal legal theories shall be
     procedurally barred absent a showing of cause and actual prejudice.

In addition, consideration of this issue is procedurally barred under Miss. Code Ann. Section 99-
39-21 (1) (1994), because it was "capable of determination at trial and/or on direct appeal". See
Miss Code Ann. § 99-39-21 (1) (1994).

¶60. Furthermore, even if this Court were to consider the merits of this issue, Wiley's argument
would fail. The comment cited by Wiley did not mention parole. This Court ruled that the
comment was made in rebuttal to defense counsel's remarks, and was not reversible error. Wiley
VI, 691 So. 2d at 964-65. See also Faraga, 514 So. 2d at 303-04 (affirming where comment does
not refer to parole and is proper rebuttal) (citing Evans, 422 So. 2d 737). Thus, even on the
merits, this argument fails.

     2. Whether the trial court's striking all references to mercy and sympathy from the jury
     instructions was unconstitutional?

¶61. In addition, Wiley argues that the trial judge erred by striking from the jury instructions all
references to mercy and sympathy. He contends that, in effect, the trial judge instructed the jury
not to consider sympathy and mercy.

     The issue of whether the instructions granted or rejected were error by the trial judge
     should have been raised on the direct appeal. Procedural bars of waiver, different theories,
     and res judicata and exception thereto as defined in post-conviction relief statute are
     applicable in death penalty post- conviction relief application. Lockett v. State, 614 So.2d
     888 (Miss.1992), cert. denied, 510 U.S. 1040, 114 S.Ct. 681, 126 L.Ed.2d 649 (1994). Post-
     conviction relief is not granted upon facts and issues which could or should have been
     litigated at trial and on appeal. "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.1994). Thus, this Court will not engage in a full blown argument about whether the
     instructions were erroneously excluded or whether those admitted were sufficient, as those
     issues are res judicata.

Foster v. State, 687 So. 2d 1124, 1138 (Miss. 1996).

¶62. Even if Wiley's argument were not procedurally barred, it would fail. As stated earlier, a
capital murder defendant is not entitled to a sympathy instruction or a mercy instruction,
although the trial judge has discretion to grant such an instruction. See Jenkins, 607 So.2d at
1181. 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.

¶63. Wiley argues that, by refusing to grant mercy instructions, the trial judge, in effect,
instructed the jury not to consider mercy. This is not true. The trial judge was within his
discretion in refusing the mercy instructions -- and, in fact, could have gone further, and
instructed the jury not to be swayed by such considerations. The record reflects that the jury was
not instructed to disregard mercy altogether. Wiley's argument to the contrary is a misstatement
of the facts and the law.

     3. Whether Wiley's rights were violated by the State's improper "send a message" argument
     during closing argument?

¶64. As stated previously, this issue is procedurally barred under Miss Code Ann. Section 99-39-
21 (1) (1994). See Foster v. State, 687 So. 2d at 1135. However, even if consideration of this issue
were not barred, Wiley's argument would fail. That is, the "danger inherent in the 'send a
message' argument . . . does not exist at the sentencing phase . . . ". Wells, 698 So. 2d at 513-14;
Holly, 716 So.2d at 985. Therefore, Wiley's argument is without merit.

     4. Whether the imposition of the death penalty in reliance on the "avoiding arrest"
     aggravating factor was unconstitutional?

¶65. Wiley next argues that the evidence was insufficient to support the jury's finding that the
murder was committed for the purpose of avoiding or preventing a lawful arrest. ". . . [T]his
claim was not raised on appeal. Therefore, without making the necessary showing of cause and
actual prejudice, this claim is barred from belated consideration on post-conviction review."
Foster v. State, 687 So. 2d 1124, 1140 (Miss. 1997).

¶66. Furthermore, as previously discussed, the evidence in this case was sufficient to support the
avoiding arrest aggravator. Therefore, even if this issue were not procedurally barred, Wiley's
argument would fail.

     5. Whether Wiley's rights were violated by the trial court's improper discussion with the
     venire about the possibility of parole?

¶67. Wiley next argues that the trial judge should have granted a mistrial, following the
conversation about the possibility of parole, which occurred during voir dire. As discussed
earlier, this issue was considered and rejected on direct appeal. See Wiley VI, 691 So. 2d at 964.
The issue is, therefore, res adjudicata and without merit. See Miss. Code Ann. § 99-39-21 (3)
(1994). See also Lockett, 614 So. 2d at 902.

     6. Whether the trial court's failure to instruct the jury on a statutory mitigating factor of
     "diminished capacity" deprived Wiley of his rights?

¶68. Wiley also argues that the trial judge erred by failing to instruct the jury on diminished
capacity. This argument is without merit, and was expressly rejected on direct appeal, when this
Court held that the evidence did not support a diminished capacity instruction. Wiley VI, 691
So. 2d at 965-66. The issue is, therefore, res adjudicata and without merit. See Miss. Code Ann. §
99-39-21 (3) (1994). See also Lockett, 614 So. 2d at 902.

     7. Whether it was arbitrary and capricious to find that Wiley's death sentence was
     proportional to comparable cases?

¶69. Wiley further argues that the death sentence is not proportionate in this case. This Court
considered the proportionality of Wiley's death sentence on direct appeal, and found that --
considering the crime and the defendant -- the imposition of the death penalty in this case was
proportionate. Wiley VI, 691 So. 2d at 967. The issue is, therefore, res adjudicata and without
merit. See Miss. Code Ann. § 99-39-21 (3) (1994). See also Lockett, 614 So. 2d at 902.

D. Whether the cumulation of error in the case requires reversal?

¶70. Wiley's final argument is that the cumulative error in this case requires reversal. "This
Court has held that the cumulative effect of errors in the trial court may warrant reversal even
when the instances taken separately do not." Ballenger v. State, 667 So. 2d 1242, 1273 (Miss.
1995). See, e.g., Davis v. State, 684 So. 2d 643, 667 (Miss. 1996); Russell v. State, 607 So. 2d
1107, 1117 (Miss. 1992); Hansen v. State, 592 So. 2d 114, 142 (Miss. 1991).

¶71. The question under the cumulative error rule, is whether the defendant has been denied his
substantial right to a fair trial. See Hansen, 592 so. 2d at 142. "There never has been a perfect
trial. As long as humans conduct and participate in trial of lawsuits, there will not be such a
trial. This Court has said many times that a defendant is not entitled to a perfect trial, only to a
fair trial." Walker v. State, 671 So. 2d 581, 629-30 (Miss. 1995).

¶72. Moreover, the issues raised in Wiley's PCR motion are without merit. Where there is "no
reversible error in any part, . . . there is no reversible error to the whole." McFee v. State, 511 So.
2d 130, 136 (Miss. 1986)).

                                        III. CONCLUSION

¶73. The issues raised in Wiley's motion to vacate the conviction, or, alternatively, for leave to
file in the trial court, are without merit. Therefore, the motion is denied.

¶74. APPLICATION FOR LEAVE TO FILE MOTION TO VACATE DEATH SENTENCE
DENIED.

PITTMAN, P.J., SMITH, WALLER AND COBB, JJ., CONCUR. SULLIVAN, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, McRAE AND MILLS, JJ.




     SULLIVAN, PRESIDING JUSTICE, DISSENTING:




¶75. Citing our prior decisions in Wells v. State, 698 So. 2d 497, 513-14 (Miss. 1997) and Holly v.
State, 716 So. 2d 979, 985 (Miss. 1998), the majority concludes that our repeated warnings
against use of the "send a message" argument do not apply to closing arguments during the
sentencing phase of capital murder cases. I disagree and therefore respectfully dissent.

¶76. In Wells, this Court relied on language from our previous decision in Williams v. State, 522
So. 2d 201, 209 (Miss. 1988), for the premise that the only danger in using the "send a message"
argument is that the jury might base its decision to convict on something other than the weight
and sufficiency of the evidence. The Wells Court therefore rationalized that no danger existed in
use of the "send a message" argument during the sentencing phase of a capital murder trial.(5)
This reasoning is flawed. The statement we made in Williams regarding the harmful effect of the
"send a message" argument was aimed at the specific circumstances of that case, in which the
prosecutor argued that the jury should convict Williams in order to "make the statement clearly,
steadfastly, and unequivocally that law or order exists for everyone in Harrison County."
Williams, 522 So. 2d at 208. We did not suggest that conviction on improper grounds was the
only danger inherent in use of the "send a message" closing argument. The Wells Court's
reliance on Williams for that proposition is misplaced.

¶77. The majority's position regarding use of the "send a message" argument in Wells, and here,
does not follow our standard of review in death penalty cases:

     On appeal to this Court convictions of capital murder and sentences of death must be
     subjected to what has been labeled 'heightened scrutiny.' Under this method of review, all
     bona fide doubts are to be resolved in favor of the accused because 'what may be harmless
     error in a case with less at stake becomes reversible error when the penalty is death.'

Balfour v. State, 598 So. 2d 731, 739 (Miss. 1992) (citations omitted) (quoting Williamson v.
State, 512 So. 2d 868, 872 (Miss. 1987)). The "send a message" argument is even more harmful
when used during the sentencing phase of a capital murder trial in which the jury is given the
task of deciding whether the defendant should be sentenced to death. By improperly asking the
jury to "send a message" through their sentencing, the prosecutor essentially asks the jury to
make an example of the defendant by sentencing him to execution.

¶78. Our statutory sentencing scheme in capital murder cases required the jury in Wiley's case to
weigh aggravating and mitigating circumstances to determine whether the defendant should
receive a life sentence or the death penalty. See Miss. Code Ann. § 99-19-101 (1994). Sending an
anti-crime message to the community at large is not one of the factors to be considered by the
jury in its decision on whether to sentence a defendant to death. This Court should not condone
the continued use of the improper "send a message" argument, particularly in capital murder
cases where the potential impact of an unfair trial is even more profound. I would therefore
overrule that portion of Wells and its progeny, including Holly, which hold that the "send a
message" argument is not harmful in the sentencing phase of capital murder cases.

¶79. Section 99-19-105(3) of the Mississippi Code requires this Court to review the sentencing
process in all cases in which the death penalty is imposed to determine in part "[w]hether the
sentence of death was imposed under the influence of passion, prejudice or any other arbitrary
factor . . . ." Miss. Code Ann. § 99-19-105(3)(a) (Supp. 1998). The goal of sending a message to
the citizens of this State regarding an anti-crime agenda is certainly an arbitrary factor. As
Wiley points out in his amended memorandum, the prosecutor's "send a message" argument was
the last point heard by the jury before beginning its deliberations. We cannot know whether the
jury in this case was persuaded to sentence Wiley to death in order to further that goal, rather
than based upon the proper statutory sentencing process. I would grant Wiley's motion for post-
conviction relief, vacate the sentence of death currently pending against him, and remand this
case to the DeSoto County Circuit Court for resentencing.

BANKS, McRAE AND MILLS, JJ., JOINS THIS OPINION.




1. This is Wiley's first opportunity to raise the issue of effectiveness of counsel. Wiley had the
same attorneys at trial and on direct appeal. He is now represented by different attorneys. See
Woodward v. State, 635 So. 2d 805, 807-08 (Miss. 1993) ("Where the same counsel represents the
defendant at trial and on direct appeal, the claim [of ineffective assistance of counsel] is
procedurally viable on application for post-conviction relief.")

2. This is particularly true, given that trial counsel moved for a mistrial, and to quash the jury
panel. When these efforts failed, it is difficult to see what more trial counsel could have done.

3. The jury also found that the capital offense was committed while the defendant was engaged
in the commission of a robbery.

4. She did however receive serious injuries (including loss of her eyesight), which required
several surgeries and extensive hospitalization. The witness testified that she was standing
behind her car, in relation to the direction from which the gunshots were fired. She was struck
from the waist up, and fell to the ground, behind the car. She did not move immediately. She
heard footsteps, and then she later moved toward the highway, but a car pulled off the highway
and the driver indicated that someone had already called for help.

5. The Court also held that use of the "send a message" argument was proper rebuttal to the
defense's closing argument in which the defense attorney "asked the jury to consider '[w]hether
people can say that in Leake County, Mississippi, they give the death penalty to mentally
retarded people.'" Wells, 698 So. 2d at 513-14.
