                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-DR-00632-SCT

QUINTEZ WREN HODGES


v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          09/13/2001
TRIAL JUDGE:                               HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED:                 LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR PETITIONER:                   ROBERT B. MCDUFF
ATTORNEY FOR RESPONDENT:                   OFFICE OF THE ATTORNEY GENERAL
                                           BY: MELANIE K. DOTSON THOMAS
DISTRICT ATTORNEY:                         FORREST ALLGOOD
NATURE OF THE CASE:                        CIVIL - DEATH PENALTY - POST-
                                           CONVICTION
DISPOSITION:                               PETITION FOR POST-CONVICTION
                                           RELIEF DENIED -12/14/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Quintez Wren Hodges was convicted of capital murder and sentenced to death for the

murder of Isaac Johnson. Hodges v. State, 912 So.2d 730 (Miss. 2005).

¶2.    This Court considered the following issues on direct appeal: (1) admission of evidence

of lenient sentencing recommendation for previous burglary charge; (2) prosecution’s

improper closing argument; (3) admission of evidence of prior criminal charges; (4)

ineffective assistance of counsel; (5) improper instruction on ineligibility for parole; (6)
defective indictment; (7) death penalty eligibility; (8) exclusion of prospective juror for

cause; (9) denial of mistrial for admission of previous burglary charge; (10) admission of

evidence of other crimes; (11) admission of photograph of victim; (12) refusal of lesser

offense instructions; (13) insufficient evidence on kidnaping charge; (14) submission of

avoiding lawful arrest aggravator; (15) conviction of kidnaping a violation against double

jeopardy; (16) failure to have transcription of instructions in record; (17) cumulative error.

Hodges, 912 So.2d at 747-48. This Court affirmed the conviction and sentence on March

10, 2005.

¶3.      Hodges’s petition for writ of certiorari was denied by the United States Supreme Court

on November 28, 2005. Hodges v. Mississippi, 126 S.Ct. 739, 163 L.Ed.2d 579 (2005).

¶4.      Hodges subsequently filed his Petition for Post-Conviction Relief with this Court.

The State has filed its Response, and Hodges has filed his Reply Memorandum.

¶5.      The Mississippi Uniform Post-Conviction Collateral Relief Act contains several

procedural bars found in Miss. Code Ann. § 99-39-21 (2000). Most relevant for the purposes

of this case is the doctrine of res judicata in § 99-39-21(3). Hodges has raised in his Petition

for Post-Conviction Relief many of the issues he raised on direct appeal. Some of these

issues are supported by information submitted here for the first time. The State argues that

the issues are barred by res judicata. Hodges states that the procedural bars “generally do not

or should not apply here.” We will discuss the procedural bar further as it applies to each

issue.

¶6.      Hodges raises the following issues in his Petition for Post-Conviction Relief:




                                               2
I.     BECAUSE OF PROSECUTORIAL MISCONDUCT THROUGH
       IM PROPER CROSS EXAM INATION AND THE
       INTRODUCTION OF FALSE EVIDENCE DEPRIVED
       QUINTEZ HODGES OF A FUNDAMENTALLY FAIR TRIAL
       AND MANDATES HIS DEATH SENTENCE BE VACATED
       BECAUSE OF PREVIOUS VIOLATIONS OF HIS SIXTH,
       EIGHTH, FOURTEENTH AMENDMENT RIGHTS.

II.    IN  A D D IT IO N AND ENHANCEMENT      OF   THE
       PROSECUTORIAL MISCONDUCT AND FALSE TESTIMONY
       ELICITED BY THE STATE OF MISSISSIPPI, THE TRIAL
       COURT ERRED IN ADMITTING HIGHLY PREJUDICIAL AND
       INFLAMMATORY TESTIMONY AND IMPROPER EVIDENCE
       CONCERNING HODGES’S PREVIOUS CRIMINAL CHARGES
       AT SENTENCING, CONTRARY TO THE PROVISIONS OF
       RULES 403 AND 404 OF THE MISSISSIPPI RULES OF
       EVIDENCE, AND AS A RESULT, HODGES WAS DENIED A
       FUNDAMENTALLY FAIR TRIAL AS GUARANTEED BY THE
       UNITED STATES AND THE MISSISSIPPI CONSTITUTIONS.

III.   QUINTEZ HODGES WAS DENIED EFFECTIVE ASSISTANCE
       OF COUNSEL AT ALL STAGES OF THIS CAPITAL MURDER
       PROSECUTION.

IV.    THE TRIAL COURT ERRED IN FAILING TO ACCURATELY
       INSTRUCT TH E JUR Y R EG ARDING H O DG ES’S
       INELIGIBILITY FOR PAROLE, DENYING HODGES AN
       ACCURATE      AND   RELIABLE SENTENCING
       DETERMINATION IN VIOLATION OF THE MISSISSIPPI AND
       UNITED STATES CONSTITUTIONS.

V.     THE PROSECUTOR COMMITTED PLAIN REVERSIBLE
       ERROR DURING SENTENCING ARGUMENT BY IMPROPER
       AND UNFAIRLY PREJUDICIAL COMMENTS AND AS A
       RESULT, HODGES WAS DENIED A FUNDAMENTALLY FAIR
       TRIAL.

VI.    THE CAPITAL MURDER INDICTMENT WAS FLAWED FOR
       FAILURE TO PROPERLY CHARGE THE OFFENSE AND
       DENIED HODGES AN OPPORTUNITY TO PROPERLY
       PREPARE A DEFENSE.




                            3
VII.   THE DEATH SENTENCE IN THIS CASE MUST BE VACATED
       BECAUSE THE INDICTMENT FAILED TO CHARGE A
       DEATH PENALTY ELIGIBLE OFFENSE.

VIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
      REMOVING FOR CAUSE A JUROR QUALIFIED TO SERVE
      UNDER CONSTITUTIONAL STANDARDS.

IX.    THE TRIAL COURT ERRED IN FAILING TO GRANT A
       DEFENSE REQUESTED MISTRIAL FOLLOWING THE
       IMPROPER INTRODUCTION OF OTHER CRIMES, WRONGS
       OR ACTS EVIDENCE IN VIOLATION OF RULES 403 AND 404
       OF THE MISSISSIPPI RULES OF EVIDENCE, AND FURTHER,
       ERRED IN FAILING TO ADMONISH THE JURY TO
       DISREGARD SUCH EVIDENCE, OR IN THE ALTERNATIVE,
       ERRED IN FAILING TO CHARGE THE TRIAL JURY SUA
       SPONTE WITH A LIMITING INSTRUCTION CONCERNING
       THE ADMISSION OF SUCH EVIDENCE.

X.     THE TRIAL COURT COMMITTED PLAIN ERROR BY
       ALLOWING THE INTRODUCTION OF EVIDENCE OF
       OTHER CRIMES OF HODGES IN VIOLATION OF RULES 403
       AND 404, M.R.E. WITHOUT FIRST CONDUCTING A PROPER
       PROBATIVE VALUE VERSUS PREJUDICIAL EFFECT
       ANALYSIS AND WITHOUT ANY LIMITING/CAUTIONARY
       INSTRUCTION.

XI.    THE TRIAL COURT ERRED IN ALLOWING THE
       INTRODUCTION OF A PHOTO OF THE DECEASED WHERE
       IT WAS UNNECESSARY TO ESTABLISH A DISPUTED FACT
       AND WAS HIGHLY PREJUDICIAL, DENYING HODGES A
       FAIR TRIAL.

XII.   THE TRIAL COURT ERRED IN DENYING DEFENSE
       REQUESTED LESSER OFFENSE INSTRUCTIONS ON
       MANSLAUGHTER AND TRESPASSING, AS THE SAME WAS
       SUPPORTED BY THE EVIDENCE AND SUCH DENIAL
       UNFAIRLY PROHIBITED HODGES FROM PRESENTING
       EVERY DEFENSE THEORY OF THE CASE TO THE TRIAL
       JURY, IN VIOLATION OF HIS FUNDAMENTAL RIGHTS AS
       GUARANTEED BY THE UNITED STATES AND MISSISSIPPI
       CONSTITUTIONS.


                             4
      XIII. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO
            CONSIDER THE UNCONSTITUTIONALLY DUPLICATIVE
            AGGRAVATING CIRCUMSTANCE OF THE FELONY OF
            BURGLARY, WHICH WAS ALSO USED TO ELEVATE THE
            CRIME TO CAPITAL MURDER.

      XIV. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO
           CONSIDER THE INVALID AGGRAVATOR OF AVOIDING
           ARREST, WHICH THE JURY USED IN SUPPORT OF A
           SENTENCE OF DEATH, DENYING HODGES A RELIABLE
           SENTENCE AS GUARANTEED BY THE UNITED STATES
           AND THE MISSISSIPPI CONSTITUTIONS.

      XV.    THE TRIAL COURT ERRED IN FAILING TO MAKE A
             COMPLETE RECORD OF THE INSTRUCTIONS OF LAW
             UPON WHICH JURORS WERE TO RELY IN DETERMINING
             THEIR VERDICTS.

      XVI. THE AGGREGATE ERROR IN THIS CASE REQUIRES
           REVERSAL OF THE CONVICTION AND DEATH SENTENCE.

                                        FACTS

¶7.   On the night of July 20, 1999, Hodges broke into the home of his ex-girlfriend, Cora

Johnson, in Lowndes County, Mississippi, and kidnaped Cora Johnson and her infant

daughter. While at the home Hodges shot and killed Cora Johnson’s brother, Isaac. Hodges

then drove Cora and her daughter to Alabama. Cora testified that while in Alabama Hodges

forced her into the back seat of the car and raped her at gunpoint. Hodges then drove Cora

and her daughter back to her mother’s home and turned himself in to the police.

                                     DISCUSSION

      I. PROSECUTORIAL MISCONDUCT.

¶8.   At his sentencing hearing Quintez Hodges called his mother, Johnnie Hodges, as a

witness and also took the stand in his behalf. Johnnie Hodges was cross-examined by the



                                            5
State as to a guilty plea hearing held in 1998 on a burglary charge for Quintez, cause no. 98-

430-CR1, Lowndes County Circuit Court. The State asked Johnnie Hodges if Bessie Tatum,

mother of Isaac and Cora Johnson, had asked that Quintez be placed in the RID program.

Hodges said that all she remembered was the State asking for seven years in the penitentiary.

The State asked Johnnie about the presence of then Assistant District Attorney James

Kitchens, at the hearing, requesting a fifteen-year sentence for Quintez. Johnnie did not

remember anything, except a seven-year sentence. The State asked the same questions on

cross-examination of Quintez Hodges. He also denied or did not recall anything about Bessie

Tatum not wanting him to go the penitentiary or about James Kitchens’s presence at the

hearing.

¶9.    The State then called James Kitchens as a rebuttal witness. Kitchens testified that he

handled Hodges’s plea hearing for the State in November 1998. Kitchens testified that he

met with Hodges’s attorney, William Bambach, and that Bambach had talked to Bessie

Tatum and she did not want Hodges to go to the penitentiary. Kitchens testified that he met

with Tatum and she told Kitchens that she did not want Quintez to go to the penitentiary.

Kitchens testified that Quintez Hodges put on a couple of witnesses to ask for a lighter

sentence, because the State was asking for fifteen-years. Kitchens testified that at the

conclusion of the hearing William Bambach stated that Bessie Tatum told him that she did

not want Quintez to go to the penitentiary because Quintez was the father of her grandchild.

Kitchens testified that he stated that he had spoken to Tatum and that was what she wanted.

Kitchens testified that the State retired two other criminal counts as a result of Quintez’s




                                              6
guilty plea. The State then, on closing argument at Hodges’s sentencing hearing, informed

the jury that

       in November of 1998, whether he [Quintez Hodges] wants to acknowledge it
       or not, he was given a huge measure of grace because rather than being sent
       to the penitentiary for 15 years as the State of Mississippi was seeking, he
       received intercession from the most unlikeliest of sources and through her
       good will and through her efforts this defendant was sentenced instead to the
       functional equivalent of probation. Three weeks after his release from
       custody, after being given a second chance of monumental proportions, he kills
       and kidnaps.

¶10.   Quintez Hodges raised the issue of prosecutorial misconduct on direct appeal. Hodges

attempted to show that Kitchens’s testimony at the sentence hearing was false by comparing

it to a transcript of the 1998 plea hearing. This Court did not consider the November 1998

plea hearing transcript as it was not part of the appeal record. The Court stated:

       Hodges argues that according to Branch v. State, 882 So. 2d 36, 49 (Miss.
       2004), this Court is allowed to consider such extraneous evidence not in the
       record. However, this Court in Branch clearly set forth that such appendices
       which were not part of the trial record were to be considered only on the Atkins
       and ineffective assistance of counsel issues. Here, during oral argument,
       defense counsel conceded that he was not pursuing this issue as ineffective
       assistance of counsel, but rather was doing so under the theory of prosecutorial
       misconduct. Also, this Court has recently amended Rule 22 of the Mississippi
       Rules of Appellate Procedure. Even though this amendment does not apply to
       the case sub judice, this Court holds that the plea hearing, which is not in the
       record, is barred from consideration and Branch does not allow this Court to
       consider such extraneous evidence. To make it clear what this Court can
       consider on direct appeal in future cases, Rule 22 has been amended to state
       that "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. M.R.A.P. 22 (emphasis added).

Hodges, 912 So.2d at 750. This Court then found that the issue was procedurally barred

because of lack of defense objection to the testimony in question but proceeded to consider

the issue on the merits. Id. at 750-51. This Court found that while it would have been


                                              7
improper for the State to ask these questions on cross-examination without evidentiary basis,

the rebuttal testimony of James Kitchens provided an evidentiary basis. Id. This Court

further stated that, in order to show a denial of due process, Hodges would have to show “(1)

the testimony was false; (2) the testimony was material to the verdict, and (3) the prosecutor

knew or believed the testimony to be false,” Id. at 751 (citing Westley v. Johnson, 83 F.3d

714, 726 (5th Cir. 1996)). The Court found that Hodges could not prove these elements. Id.

¶11.   Hodges raises this issue again in his request for post conviction relief, with the

transcript of the plea hearing attached.

¶12.   The State argues that this issue is barred by res judicata, stating that it was considered

on direct appeal by this Court on its merits. The State cites Crawford v. State, 867 So.2d

196, 202 (Miss. 2003), where this Court stated:

       Post-conviction review is a limited proceeding whereby this Court will only
       review "those objections, defenses, claims, questions, issues or errors which
       in practical reality could not or should not have been raised at trial or on direct
       appeal." Cabello v. State, 524 So. 2d 313, 323 (Miss. 1988) (quoting Miss.
       Code Ann. § 99-39-3(2) (Supp. 2003)).

       Claims and theories that could have been but were not presented to the trial
       court or to this Court on direct appeal are procedurally barred from being
       reviewed by this court on post-conviction review. Lockett v. State, 614 So. 2d
       888, 893 (Miss. 1992). Likewise, all issues, both factual and legal, that were
       decided at trial and/or on direct appeal are barred from review as res judicata.
       Miss. Code Ann. § 99-39-21(3) (Supp. 2003).

       The burden of proving that no procedural bar exists falls squarely on the
       petitioner. Lockett, 614 So. 2d at 893. For this Court to hear claims or
       theories that were not presented at trial or on direct appeal, the petitioner must
       show cause for not having already brought the claim and that this caused actual
       prejudice to his case. Lockett v. State, 614 So. 2d at 893. To create an
       exemption from the procedural bar under res judicata principles, petitioner
       must show that his "claim is so novel that it has not previously been litigated"
       or that "an appellate court has suddenly reversed itself on an issue previously

                                               8
       thought settled." Id. (quoting Irving v. State, 498 So. 2d 305, 311 (Miss.
       1986)). Petitioner will also defeat procedural bar if he can demonstrate that
       "he has evidence, not reasonably discoverable at the time of trial, which is of
       such nature that it would be practically conclusive that had such been
       introduced at trial it would have caused a different result in the conviction or
       sentence.” Miss. Code Ann. § 99-39-23(6).

¶13.   Hodges relies on Havard v. State, 928 So.2d 771 (Miss. 2006), where this Court cited

its decision in Hodges and discussed whether the Court would consider documents not in the

appeal record in support of issues raised by the defendant. This Court held that documents

which were not included in the appeal record would not be considered. Havard, 928 So.2d

at 785-86.

¶14.   The law supports the State’s argument. On direct appeal, the Court considered and

decided the issue of prosecutorial misconduct on the merits. Therefore, res judicata bars

Hodges from raising this issue again.

       II. ADMISSION OF EVIDENCE OF OTHER OFFENSES.

¶15.   Hodges next argues that the trial court erred in allowing the State to improperly cross-

examine him and his witnesses presented during the sentencing hearing. Each witness will

be discussed separately.

¶16.   Lisa Hodges - Lisa Hodges is Quintez Hodges’s sister. During cross-examination by

the State she was asked about Quintez escaping from jail twice. Hodges argues that evidence

of escape attempts was not relevant to any of the statutory aggravating factors and was

improper rebuttal to Lisa Hodges’s testimony. Hodges argues that it could have improperly

influenced the jury as to sentencing because of the implication of future dangerousness. As

the State points out, this issue was raised by Hodges on direct appeal. This Court stated:



                                              9
       The prosecution has no right to introduce evidence of wrongs and bad acts to
       prove Hodges’s character or to show he acted in conformity therewith, unless
       it is competent rebuttal evidence in the face of the showing of Hodges’s good
       character made on direct examination of this witness. Hansen v. State, 592 So.
       2d 114, 148 (Miss. 1991) (citing Simpson v. State, 497 So. 2d 424, 428-29
       (Miss. 1986); Winters v. State, 449 So. 2d 766, 771 (Miss. 1984)). M.R.E.
       404(b) provides that:

              Evidence of other crimes, wrongs, or acts is not admissible to
              prove the character of a person in order to show that he acted in
              conformity therewith. It may, however, be admissible for other
              purposes such as proof of motive, opportunity, intent,
              preparation, plan, knowledge, identity, or absence of mistake or
              accident.

       The State questioned Hodges’s sister about a prior bad act, the two attempts
       to escape jail. On direct examination, Hodges’s sister testified that Hodges’s
       character was good, that he respected his elders, did not disobey his parents,
       and that he was not a violent person and never fought. Her direct examination
       testimony opened the door to the State to ask these questions. There was
       testimony on direct that he was a good boy that respected his elders. The
       introduction of the two prior escapes from the jail was not error.

Hodges, 912 So.2d at 755.

¶17.   Chris Hodges - Chris Hodges is Quintez Hodges’s nephew.                    During cross-

examination by the State Chris was questioned about Quintez Hodges’s arrests for burglary

of a school in 1997 and burglary and attempted sexual battery in 1998. Quintez Hodges

argues that evidence of these arrests was not relevant to any statutory aggravating factor, nor

was it proper rebuttal to Chris Hodges’s testimony. As the State points out, this issue was

raised by Hodges on direct appeal. This Court stated:

       As stated previously, the prosecution has no right to introduce evidence of
       wrongs and bad acts to prove Hodges’s character or to show he acted in
       conformity therewith, unless it is competent rebuttal evidence in the face of
       the showing of Hodges’s good character made on direct examination of this
       witness. Hansen, 592 So. 2d at 148. On direct examination, Chris testified that
       Hodges’s character was good and that he was not disruptive and not the kind

                                              10
       of person to commit this crime. He also testified that Hodges did not have
       problems with the law prior to the charge of burglary of Cora's house and that
       the problems with the law stemmed from his relationship with Cora. This
       direct testimony opened the door to bring in the prior bad acts that occurred
       prior to the burglary of Cora's house and the bad acts that had nothing to do
       with Cora. The introduction of these other burglaries and the sexual battery
       was not error.

Hodges, 912 So.2d at 755.

¶18.   Quintez Hodges - Quintez Hodges testified at the sentencing phase that he had been

charged with one other crime, the burglary of Cora Johnson’s house. On cross-examination

the State questioned Hodges about other charges, and introduced into evidence an indictment

in cause no. 98-432-CR1, charging Hodges with breaking into the dwelling house of Tasha

Martin and attempted sexual battery of Tasha Martin.          Hodges did not object to the

introduction of the indictment at trial. Hodges now argues that this amounted to plain error,

as an indictment cannot be used for impeachment or rebuttal. As the State points out, this

issue was raised by Hodges on direct appeal. This Court stated:

       Although the introduction of the indictment was improper impeachment
       evidence, such error was harmless. The jury, on many previous occasions
       throughout the sentencing phase, heard testimony regarding these other crimes.
       Hodges was not denied a substantial right by the introduction of this indictment.

       The State argues that the introduction of this indictment was not improper
       because it was used to rebut Hodges’s inferences and direct statements that his
       prior criminal history was insignificant. Indeed, this Court has held that "the
       State is allowed to rebut mitigating evidence through cross-examination,
       introduction of rebuttal evidence or by argument." Wiley v. State, 750 So. 2d
       1193, 1202 (Miss. 1999) (quoting Turner v. State, 732 So. 2d 937 at 950).

       Notwithstanding the procedural bar, this issue is without merit.

Hodges, 912 So.2d at 757-58.




                                              11
¶19.   The State argues that all three parts of this issue were raised on direct appeal and

Hodges is barred by res judicata from raising the issue here again on the post-conviction

level. Miss. Code Ann. § 99-39-21 (3). This Court agrees that Hodges is barred by res

judicata from again raising this issue.

       III. ASSISTANCE OF COUNSEL.

¶20.   Hodges next argues that he was denied effective assistance of counsel. He does not

differentiate between his two trial lawyers but most of his argument is directed toward the

actions of Michael D. Miller. This Court has stated the following on ineffective assistance

of counsel and the standard provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984):

       "The benchmark for judging any claim of ineffectiveness [of counsel] must be
       whether counsel's conduct so undermined the proper functioning of the
       adversarial process that the trial cannot be relied on as having produced a just
       result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
       L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel's
       performance was deficient and that the deficiency prejudiced the defense of
       the case. Id. at 687, 104 S.Ct. 2052. "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 v. Washington, 466
       U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether
       counsel's assistance was reasonable considering all the circumstances. Id.

              Judicial scrutiny of counsel's performance must be highly
              deferential. (citation omitted) ... A fair assessment of attorney
              performance requires that every effort be made to eliminate the
              distorting effects of hindsight, to reconstruct the circumstances
              of counsel's challenged conduct, and to evaluate the conduct
              from counsel's perspective at the time. Because of the
              difficulties inherent in making the evaluation, a court must
              indulge a strong presumption that counsel's conduct falls within
              the wide range of reasonable professional assistance; that is, the
              defendant must overcome the presumption that, under the

                                             12
              circumstances, the challenged action 'might be considered sound
              trial strategy.'

       Stringer, 454 So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
       Defense counsel is presumed competent. Id.

              Then, to determine the second prong of prejudice to the defense,
              the standard is "a reasonable probability that, but for counsel's
              unprofessional errors, the result of the proceeding would have
              been different." Mohr v. State, 584 So.2d 426, 430 (Miss.1991).
              This means a "probability sufficient to undermine the
              confidence in the outcome." Id. The question here is:

                     whether there is a reasonable probability that,
                     absent the errors, the sentencer–including an
                     appellate court, to the extent it independently
                     reweighs the evidence--would have concluded
                     that the balance of the aggravating and mitigating
                     circumstances did not warrant death. Strickland,
                     466 U.S. at 695, 104 S.Ct. at 2068.

              There is no constitutional right then to errorless counsel.
              Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State,
              584 So.2d 426, 430 (Miss.1991) (right to effective counsel does
              not entitle defendant to have an attorney who makes no mistakes
              at trial; defendant just has right to have competent counsel). If
              the post-conviction application fails on either of the Strickland
              prongs, the proceedings end. Neal v. State, 525 So.2d 1279,
              1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991).

       Davis v. State, 743 So.2d 326, 334 (Miss.1999) (citing Foster v. State, 687
       So.2d 1124, 1130 (Miss.1996)).

Brown v. State, 798 So.2d 481, 493-94 (Miss. 2001).

¶21.   Hodges presents at least twelve arguments under this issue, but like the rest of his

Petition, most of the issue repeats what was raised and rejected by this Court on direct

appeal. The State argues that Hodges’ss argument is barred by res judicata, citing Sanders

v. State, 846 So.2d 230, 239 (Miss. Ct. App. 2002), where the Court of Appeals stated:



                                             13
“Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural

bar of res judicata.” This quote referred to a search and seizure issue. We have treated

ineffective assistance of counsel differently. Once again Hodges cites Havard, where this

Court considered Havard’s ineffective assistance of counsel claims. The questions raised in

Havard were whether to consider the ineffective assistance claims on direct appeal or defer

consideration until the post-conviction stage, and whether to consider extraneous materials

not found in the appeal record. This Court considered the claims but not the extraneous

materials. This Court further found: “Having raised this issue with different counsel on

direct appeal, Havard has preserved his right to raise this issue, supported by affidavits, in

future post-conviction proceedings.” Havard, 928 So.2d at 786; see also McGee v. State,

929 So.2d 353, 365 (Miss. Ct. App. 2006) (same). Where Hodges raised ineffective

assistance of counsel on direct appeal, and raises it again here, supported by extraneous

materials that were not available on direct appeal, our consideration of the issue is not barred

by res judicata. Where Hodges raises ineffective assistance of counsel at the post-conviction

stage, and it is the same issue raised on direct appeal but only rephrased, res judicata will

apply.




                                              14
       A. Failure to support motion to suppress confession

¶22.   Hodges first argues that trial counsel was ineffective where he made a motion to

suppress Hodges’s confession, but did not properly support the motion with sufficient

evidence so that it would be granted. Keven Pitre, Lowndes County Sheriff Department,

took Hodges’s statement in which he confessed to shooting Isaac Johnson. Hodges claims

that Pitre testified at Hodges’s preliminary hearing that he told Hodges that he was facing a

possible death sentence or life imprisonment for shooting Johnson. Hodges argues that Pitre

then testified at the suppression hearing that Hodges didn’t ask any questions before signing

the statement and rights form. Hodges raised this allegation of inconsistent testimony on

direct appeal. This Court found that Pitre did not give inconsistent testimony, as the

preliminary hearing testimony dealt with Hodges’s answers once he was being questioned,

while the suppression hearing testimony dealt with Hodges’s conduct while being read his

rights, before the questioning began, and counsel was not deficient. Hodges, 912 So.2d at

760-61.

       B. Failure to investigate and confront prosecution witnesses

¶23.   Hodges argues that his trial counsel should have impeached prosecution witness

Anthony Betts with his guilty plea to a charge of burglary. Hodges argues that Betts’s

testimony that Hodges’s “was going to buy a gun and shoot somebody” was crucial evidence

as to Hodges’s intent to assault. This Court found that Betts’s testimony was mostly

cumulative, and without it there was ample testimony to support a conviction. Hodges, 912

So.2d at 762-63.




                                             15
¶24.   In addition, Hodges now argues that his counsel was also ineffective for failure to

investigate and confront Cora Johnson at trial. Hodges argues that Cora Johnson wrote to

Hodges numerous times while he was incarcerated, and the letters would have shown that

she at one moment stated that she loved Hodges and another stated that she had moved on

to other men. Hodges further states that his niece, Lakasha Hodges, would have testified that

Cora Johnson called Hodges repeatedly on the night of the shooting. While this information

might have been helpful, and defense counsel should have been aware of it, its persuasive

effect is questionable. However unfair or manipulative Cora Johnson might have been in

their relationship, Hodges still broke into her house and killed her brother.

       C. Failure to properly advise on plea bargain

¶25.   Hodges argues that although the only two possible sentencing options in the event he

was convicted of capital murder were death and life imprisonment without parole, he was

incorrectly informed by his counsel and the trial court that a third option in the event of

conviction was life imprisonment with parole. Hodges stated trial counsel told him that the

State had offered a plea of life without parole, but he had rejected it because of the possibility

of life with parole. On direct appeal this Court found that Hodges did not prove that he

would have accepted the plea offer if he had been advised correctly, and counsel was not

ineffective. Hodges, 912 So.2d at 763.

       D. Failure to present available evidence in mitigation

¶26.   Hodges make a general argument here, and it appears that this issue serves as an

introduction to the specific arguments made in the next four issues. Hodges does argue that

an instruction offered by his trial counsel contained four mitigating circumstances and the

                                               16
trial court erred in refusing the instruction. Hodges states that the trial court only allowed

one mitigating circumstance to go to the jury, but also states that “[t]here was no evidence

nor argument offered at trial to support the first three factors.”

¶27.   In his Reply/Supplement Hodges identifies numerous members of his family that have

attached affidavits and say now that they would have testified if they had been called as

witnesses.    Their testimony would have included Quintez’s family history and his

relationship with his mother and his relationship with Cora Johnson. Hodges also states that

his cousin, Lakasha Hodges, could have disputed the testimony of prosecution witness

Anthony Betts as to events of the night of the shooting. Betts testified that Quintez Hodges

had stated the weekend before the shooting that he was going to buy a gun and kill

somebody. This was the real value of Betts’s testimony and Lakasha Hodges does not claim

to be able to dispute this. In addition, each time one of the proposed witnesses testified that

Quintez Hodges was a good, peaceful, misunderstood person, they would have opened the

door for cross-examination and renewed emphasis by the State on Hodges’s prior criminal

actions, as happened to Lisa and Chris Hodges, who testified during sentencing.

       E. Failure to subpoena an expert witness from Whitfield

¶28.   Hodges next argues that his trial counsel should have called a witness from Whitfield

as an expert in mitigation. Hodges states that trial counsel was having some communication

with psychiatrist Dr. Phillip Meredith during the trial. Hodges specifically argues that mental

health experts could have provided helpful testimony concerning his youth, his prior escape

from county jail, his history of drug abuse, his limited education and his difficult relationship

with Cora Johnson. When considered on direct appeal this Court found that this evidence


                                               17
was presented to the jury through other witnesses except for evidence of drug abuse, which

this Court found was “not so compelling that there is a reasonable probability at least one

juror could reasonably have determined that death was not an appropriate sentence.”

Hodges, 912 So.2d at 766.

¶29.   Hodges now supplies additional opinions from mental health experts. Dr. Karen S.

Wiviott, a psychiatrist, evaluated Hodges in June 2006 and found that

       Hodges was an immature and impulsive 18-year-old who came from a
       background of poverty and emotional deprivation. Disruption in both of his
       parental relationships during his early years left him with rejection sensitivity
       and vulnerability to abandonment. Only three weeks out of prison, he was
       especially vulnerable to rejection by Cora Johnson, who was central to his
       hopes for the future. Her inconsistency in the preceding months and weeks
       and her betrayal on the night of July 20, 1999 had a profound effect on Mr.
       Hodges that contributed significantly to his actions on that night.

¶30.   Dr. Wiviott’s psychiatric evaluation is also interesting for what it does not include.

Unlike so many capital cases, there is no allegation of child abuse endured by Hodges;

Hodges’s father did not live with Quintez and his mother but did have a relationship with

Hodges when Hodges was growing up. Hodges’s mother reportedly was an alcoholic, but

she stopped drinking when Quintez was young and he did not remember these episodes.

Quintez used marijuana regularly, and alcohol less so in his teenage years, but nothing tied

this use to any of his problems with the law. There is no allegation of retardation or insanity.

Hodges’s witnesses agree that Hodges’s behavior worsened when his family moved from

Columbus to Caledonia when he was thirteen.

¶31.   Dr. Marc Zimmerman, a psychologist, also performed a psychological evaluation of

Hodges in June 2006. Dr. Zimmerman found that Hodges was suffering from post-traumatic



                                              18
stress disorder. We find that even if counsel had been able to produce these evaluations at

the time of trial, the evaluations are not that compelling, particularly in the context of a death

penalty case.

       F. Failure to introduce the victim impact statement

¶32.   Hodges next argues that his counsel was ineffective for failure to introduce the victim

impact statement of Bessie Tatum, the mother of Isaac and Cora Johnson. Hodges argues

that the statement shows that Bessie Tatum did not want him put to death and this might have

influenced the jury. On direct appeal this Court found that the statement was not that helpful,

and that the decision not to make the jury aware of the statement was acceptable trial

strategy. Hodges, 912 So.2d at 766-67.

        G. Failure to adequately confront prosecution witness Johnny Robbins

¶33.   Johnny Robbins, a probation officer from the MDOC, was called as a witness for the

sole purpose of introducing Hodges’s prior burglary conviction into evidence at sentencing.

Hodges argues that trial counsel should have objected to the introduction of the copy of the

conviction and should have brought out personal information about Hodges on cross-

examination. On direct appeal this Court found that the copy of the conviction was properly

admitted, so counsel was not ineffective for failure to object. This Court further found that

“there is no indication that Robbins knew Hodges personally and could have testified to”

information of a personal nature. This Court further found that, assuming trial counsel failed

to adequately cross-examine Robbins, there was no prejudice. Hodges, 912 So.2d at 767.

¶34.   Hodges argues that defense counsel should have brought out, through Johnny Robbins

or some other corrections officer, that Hodges exhibited no behavioral problems during his

                                               19
time in RID. While this might have been helpful, it also might have reminded the jury that

Hodges was given an opportunity to avoid the conduct which resulted in his death sentence

and wasted it.

       H. Denial of overnight recess before closing argument

¶35.   Hodges argues that trial counsel was rendered ineffective by the trial court’s failure

to allow a recess after the close of evidence at the sentencing phase. Hodges states that it

was error not to allow counsel a reasonable time to prepare and the jury some time to rest

before closing arguments and deliberations as to sentence. On direct appeal this Court found

no error in stating that “[t]here is no evidence in the record of an undue burden upon counsel

in continuing the case to conclusion and no indication in the record that the jury had

difficulty in proceeding with the case.” Hodges, 912 So.2d at 767-68.

       I. Failure to properly prepare Hodges for his testimony

¶36.   Hodges argues that counsel was ineffective for failure to prepare him as a witness for

his sentencing hearing once Hodges decided to testify. Hodges states that because of this

lack of preparation, he was “opened up on cross-examination to all prior charges because

defense counsel failed the explain the difference between a ‘charge’ and a conviction.” On

direct appeal this Court found that, even assuming defense counsel was deficient in not

making sure Hodges knew this difference, Hodges still had not shown prejudice. Hodges,

912 So.2d at 768-69.

       J.        Lead trial counsel was ineffective in this matter because of inadequate
                 experience, time, resources and personal circumstances




                                             20
¶37.   Hodges next discusses why Michael D. Miller was ineffective. Hodges states that

Miller was ineffective because of his inexperience, in that he had been admitted to the Bar

less than a year before Hodges’s trial and had not previously tried a case before a jury in

circuit court. Hodges states that Miller was suffering from bi-polar disorder. Hodges states

that Miller was using various prescription and non-prescription drugs around the time of

Hodges’s trial, including marijuana, methamphetamine and cocaine. After the trial Miller’s

parents sought to have him committed because of his suicidal thoughts and paranoid

delusions. In January 2003, Miller was found to be a “mentally ill person who poses a

substantial likelihood of physical harm to himself” and was committed by the Chancery

Court of Lowndes County to East Mississippi State Hospital.

¶38.   Hodges cites Jermyn v. Horn, 266 F.3d 257 (3 rd Cir. 2001), where the United States

District Court granted Jermyn another sentencing hearing after finding that his counsel was

ineffective in failing to timely prepare and investigate possible claims involving his client’s

mental health. Hodges states that the comparisons with his case and Jermyn are “exact,”

except that in Jermyn’s case there was a wealth of information to find by investigation,

including mental health professionals who had found Jermyn to be schizophrenic and

evidence of a horrific childhood filled with physical and mental abuse committed by

Jermyn’s father. There are no such factors present in Hodges’s case.

¶39.   The State argues that if Michael Miller provided ineffective assistance of counsel, as

this Court found on direct appeal, then a new or more compelling explanation for the same

behavior is irrelevant. The State argues that what is important in an ineffective assistance

claim is the behavior, not the explanation for the behavior. In Berry v. State, 765 F.2d 451,


                                              21
454 (5 th Cir. 1985), the Fifth Circuit noted that whether Berry’s attorney had used drugs

during Berry’s trial was disputed, and added: “In any case, under Strickland the fact that an

attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim. The

critical claim is whether, for whatever reason, counsel’s performance was deficient and

whether that deficiency prejudiced the defendant. We therefore concentrate on Berry’s

specific allegations of deficient performance and prejudice.” See also Guy v. Cockrell, No.

01-10425, 2002 U.S. App. LEXIS 28184, at *10 (5 th Cir. July 23, 2002) (counsel’s admitted

drug use during trial only relevant if inmate could show where counsel’s performance was

deficient because of drug use, citing Berry); Burnett v. Collins, 982 F.2d 922 (5 th Cir. 1993)

(same); Gonzales v. State, 915 So.2d 1108, 1111 (Miss. Ct. App. 2005) (failure to show

prejudice from attorney’s alleged drug use). This evidence of drug use and illness may

explain some of Michael Miller’s behavior before and during Hodges’s trial, but it does not

change this Court’s finding on direct appeal that Michael Miller provided ineffective

assistance of counsel.

       K.     Trial counsel was ineffective for failure to adequately argue for
              investigative assistance and was likewise rendered ineffective by the
              trial court’s denial of investigation assistance

¶40.   Hodges argues that Michael Miller requested that the circuit court appoint an

investigator, but failed to present to the court ample reason with supporting evidence as to

why an investigator was needed. This Court cannot find such a motion in the appeal record,

though Miller did testify at a pretrial hearing that he might file such a motion. Hodges next

states that it would have been relatively easy for Miller to show the need for an investigator,

especially considering the short time he had before trial. While Miller might have needed

                                              22
an investigator, what he needed more than anything was sufficient time to prepare for trial,

which was impossible given his voluntary entrance into this case on August 20, 2001, for a

case set for September 10, 2001. As a practical matter, finding an investigator within that

time frame and the investigator’s ability to accomplish any work of value are doubtful.

Finally, Hodges states that “[i]t should be noted that at all times pertinent to the trial, Hodges

was incarcerated and had been declared indigent. His fortune had not changed while he was

in jail awaiting trial.” Despite this allegation of financial status, someone hired Miller to

represent Hodges. The trial judge specifically noted this when Miller mentioned that he

might ask for an investigator: “He’s not indigent because he’s hired counsel.”

¶41.   The Court finds that Hodges raised in his direct appeal the arguments found in parts

A, C, F, H and I, and he is barred from raising those issues again here by res judicata. The

remaining allegations of ineffective assistance of counsel made by Hodges are found to be

without merit, as is this issue as a whole.

       IV.     JURY INSTRUCTIONS ON PAROLE ELIGIBILITY.

¶42.   Hodges next argues that the trial court erred in allowing the jury to be instructed that

Hodges was eligible for a sentence of life imprisonment with the possibility of parole. He

also argues that the problem was compounded when the State made the same allegation in

its closing argument to the jury. As the State points out, this issue was raised by Hodges on

direct appeal. This Court stated:

       While it is true that the statute [Miss. Code Ann. § 99-19-101] does provide for
       three alternatives, it is also true that the earned time allowance and parole
       statutes effectively eliminate the possibility of parole for someone convicted
       of capital murder. This is an inconsistency in statutes that needs to be
       addressed by the Legislature. However, the question now becomes whether

                                               23
       this inconsistency caused prejudicial error in the case at bar. Where the jury
       imposes the death penalty, the fact that the jury was given the option of parole
       does not constitute harmful error. As this Court stated in Puckett v. State, 737
       So. 2d 322, 363 (Miss. 1999),

              the true harmful error would arise in those cases where the trial
              court strictly follows the language of § 99-19-101 in capital
              murder cases, submits all three options to the jury, and the jury
              selects the option of life imprisonment. In this instance, the
              defense could argue that the jury was misled in that they
              selected the life imprisonment sentence with the assumption that
              the defendant may be eligible for parole, when in reality the
              defendant would not be eligible for parole by virtue of the parole
              and earned time statutes.

       The true harmful error situation did not occur in the case sub judice. The jury
       was given all three alternatives but it sentenced Hodges to death and not life
       imprisonment. Based on Williams and Puckett, this issue is without merit.

       Furthermore, this Court finds that the language on the verdict form stating that
       "if the jury cannot agree on punishment, the court must sentence the Defendant
       to a term of life imprisonment with the possibility of parole" was improper
       because it was an incorrect statement of law. Pursuant to Miss. Code Ann. 99-
       19-101, the judge must "impose a sentence [**89] of imprisonment for life"
       when the jury cannot agree on the punishment and under our parole statutes a
       life sentence rendered pursuant to Miss. Code Ann. § 99-19-101 will
       automatically be a life without parole sentence. Even though this language in
       the verdict form was an improper statement of the law, such error was
       harmless since the jury, knowing that it had the life without parole option,
       chose death.

Hodges, 912 So.2d at 772. Hodges is barred by res judicata from raising this issue. See

Miss. Code Ann. § 99-39-21 (3).

       V.     IMPROPER COMMENTS BY PROSECUTION                              DURING
              SENTENCING CLOSING ARGUMENT.

¶43.   Hodges next argues that the State’s closing argument amounted to reversible error

because of the District Attorney’s references to the September 11 terrorist attacks, which

occurred during Hodges’s trial, and some Biblical references. The arguments were made to

                                             24
the jury on September 12, 2001. The allegation of plain error is made because there was no

contemporaneous objection to the argument by defense counsel. As the State points out, this

issue was raised by Hodges on direct appeal. This Court stated that “[c]onsidering the wide

latitude given to attorneys for closing arguments and considering the State’s comment in

reference to the defense’s own closing, Hodges’s arguments are without merit and there [is]

no unfair prejudice.” Hodges, 912 So.2d at 754. Hodges is barred by res judicata from

raising this issue.

       VI.     INDICTMENT FAILED TO PROPERLY CHARGE OFFENSE.

¶44.   Hodges next argues that his indictment was defective for stating that Hodges’s

burglary of the Johnson house was committed with intent to commit assault within the house,

but failed to specify the intended victim of the assault. Hodges cites State v. Berryhill, 703

So.2d 250, 256 (Miss. 1997), where this Court stated: “[A] defendant . . . who has been

indicted without specifying the burglary may find out on the eve of trial that the State might

try to prove the burglary on different theories. Needless to say, different theories would

plainly invite different defenses.” Hodges alleges that the State’s proof at trial as to assault

was inconsistent, included numerous theories, and made preparation of a defense impossible.

As the State points out, this issue was raised by Hodges on direct appeal. This Court stated

the following on this matter:

       The indictment in the case sub judice complies with the rule set forth in
       Berryhill. The indictment charged Hodges with capital murder with the
       underlying felony of burglary. Since the underlying felony was burglary, the
       State was required to specify the underlying offense, which they did. It
       charged Hodges with burglary with the intent to commit an assault therein.
       This Court has stated that



                                              25
              [t]he allegation of the ulterior felony intended need not,
              however, be set out as fully and specifically as would be
              required in an indictment for the actual commission of that
              felony. It is ordinarily sufficient to state the intended offense
              generally, as by alleging an intent to steal, or commit the crime
              of larceny, rape or arson.

       Booker v. State, 716 So. 2d 1064, 1068 (Miss. 1998) (citing Am. Jur. 2d
       Burglary § 36 (1964)). Therefore, all the State was required to do was state the
       intended offense generally by alleging the intent to assault. The State did
       exactly what was required. Hodges was able to prepare a defense and was well
       aware, from the indictment, that the State intended to prove burglary with the
       intent to commit an assault therein. The State did not try to prove different
       theories of burglary as Hodges claims. The State set out to prove that Hodges
       went to Cora's house that night armed with a gun and intended to shoot Cora
       and/or Bessie Tatum. Hodges himself told Cora on the night of the shooting
       that he went to her house to shoot her and/or Bessie Tatum (if she had been
       home). Hodges also told his friend, Anthony Betts, that he was going to buy
       a gun and kill somebody. Hodges then went to Cora's house that night armed
       with a gun. Hodges has not shown that he was prejudiced in the preparation of
       his defense. This issue is without merit.

Hodges, 912 So.2d at 774-75. Hodges is barred by res judicata from raising this issue.

       VII.   INDICTMENT FAILED TO CHARGE A DEATH PENALTY
              ELIGIBLE OFFENSE.

       XIII. JURY ALLOW ED TO CONSIDER                             DUPLICATIVE
             AGGRAVATING CIRCUMSTANCE.

¶45.   These issues were considered together by this Court on direct appeal. Hodges first

argues that his indictment was improper because it failed to enumerate the aggravating

factors and the mens rea element. Hodges also argues that it was improper for the trial court

to allow the jury to find Hodges guilty of capital murder, with the underlying felony being

burglary, and then allow burglary to be submitted to the jury for consideration as an

aggravating factor in sentencing. As the State points out, these issues were raised by Hodges




                                             26
on direct appeal. This Court considered the issues and found them to be without merit.

Hodges, 912 So.2d at 775-77. Hodges is barred by res judicata from raising these issues.

       VIII. REMOVAL OF JUROR.

¶46.   Hodges next argues that the trial court erroneously upheld a challenge for cause by

the State on venire person James Thomas, #69. Hodges argues that Thomas expressed

consistent views during individual voir dire by the State and trial judge that did not justify

removal from the venire. As the State points out, this issue was raised by Hodges on direct

appeal. This Court stated the following on this matter:

       Likewise, in the case sub judice, the trial judge excluded the prospective juror
       because of his contradictory responses to the questions regarding the death
       penalty. This case is analogous to the King [v. State, 784 So.2d 884 (Miss.
       2001)]case in that the juror stated in his questionnaire that he could never
       impose the death penalty but during questioning by the court he stated that he
       may be able to in the right case. He even went further and stated that he would
       favor life over death but when questioned by defense counsel he recanted this
       answer and stated that he could consider all possibilities. "It goes without
       saying that a potential juror who cannot give a straight answer would be very
       unlikely to follow the law." King, 784 So. 2d 884 at 888. "If jurors provide
       inconsistent answers regarding their feelings on the stated law of this state,
       they may be struck for cause." Brown v. State, 890 So. 2d 901, 910 (Miss.
       2004). Given this potential juror's equivocal stance on the issue, the trial court
       did not abuse its discretion in striking him for cause.

Hodges, 912 So.2d at 778. Hodges is barred by res judicata from raising this issue.

       IX.    INTRODUCTION OF EVIDENCE OF OTHER CRIMES.

¶47.   Hodges next argues that the trial court erred in failing to grant a mistrial when Cora

Johnson testified for the State that Hodges “broke in and me and my mother found him

underneath my bed, and he got locked up for a year and a half.” Hodges further argues that

the trial court erred in failing to admonish the jury to disregard the evidence and in failing



                                              27
to sua sponte approve a limiting instruction concerning this evidence. As the State points

out, this issue was raised by Hodges on direct appeal. This Court stated the following on this

matter:

       In the case sub judice, the prosecutor did not ask Cora about Hodges’s jail time
       from burglarizing her house, but instead asked her about her relationship with
       Hodges, to which Cora mentioned his jail time he served when he broke into
       her house. The prosecutor thereafter directed Cora's testimony towards matters
       involving the relationship which resulted in a child, and the jail time was never
       again mentioned. Clearly, the prosecution did not deliberately elicit testimony
       regarding this other crime. As in Watson, even assuming arguendo that the
       answer constituted error, the error was harmless.

       Hodges also argues that it was error for the trial judge not to provide the jury
       with a limiting instruction, since the evidence was introduced. To support his
       argument, Hodges cites Robinson v. State, 735 So. 2d 208 (Miss. 1999), which
       held that the trial court's failure to sua sponte give a limiting instruction on
       prior bad acts was reversible error. However, Robinson was overruled by
       Brown v. State, 890 So. 2d 901 (Miss. 2004). In overruling Robinson, this
       Court held that the trial court is not required to issue a sua sponte limiting
       instruction when other crimes evidence has been admitted and the defense
       counsel has the burden of requesting such instruction. Id. "It is not per se
       prejudicial to a defendant if a jury simply hears an isolated instance of a crime
       or bad act in the course of a trial." Id. at 913. In the case sub judice, Hodges
       did not request a limiting instruction when this isolated instance of a crime or
       bad act came out during Cora's testimony. Since the trial court is not required
       to issue such an instruction without a request from Hodges, the trial court did
       not err when they did not give a limiting instruction.

Hodges, 912 So.2d at 779. Hodges is barred by res judicata from raising this issue.

       X.     INTRODUCTION OF EVIDENCE OF OTHER CRIMES.

¶48.   Hodges next argues that the trial court erred in allowing admission of evidence that

Hodges sexually assaulted Cora Johnson after he kidnaped her and took her to Alabama.

Hodges further argues that the trial court erred in failing to admonish the jury to disregard

the evidence and in failing to sua sponte approve a limiting instruction concerning this



                                              28
evidence. As the State points out, this issue was raised by Hodges on direct appeal. This

Court stated the following on this matter:

       After the trial judge heard arguments from both sides the court determined that
       "this was a continuous event and transaction, and the State under case law is
       entitled to show the jury the complete picture of what happened. The Court
       finds that it is probative and the probative value outweighs the unfair prejudice
       and the objection is noted and overruled." In the case sub judice, Hodges was
       charged with capital murder with the underlying felony of burglary and he was
       also charged with the kidnaping of Cora Johnson. It was shown that Hodges
       broke into the house where he was confronted by the victim. After shooting
       Isaac once in the stomach, he went to Cora's room where she had just
       awakened. Hodges told Cora to get her stuff and that she was going with him.
       She told Hodges that she was not going anywhere with him and that is when
       he struck her across the head with the gun. Cora then woke her daughter and
       prepared to leave with Hodges. During the trip to Alabama, Cora testified that
       Hodges forced her into the back seat of the car, held a gun to her head and
       raped her while her daughter was lying in the front seat. The rape of Cora was
       integrally related in time, place and fact with the murder of Isaac Johnson. The
       rape arose out of a "common nucleus of operative facts" and was "integrally
       intertwined" with what happened to Isaac Johnson. Wheeler v. State, 536 So.
       2d 1347, 1352 (Miss. 1988). As stated above, this Court has held that proof of
       another crime is admissible where the offense charged and that offered are so
       interrelated as to constitute a single transaction or occurrence or a closely
       related series of transactions or occurrences. Neal, 451 So. 2d at 759. The rape
       in the case sub judice is part of a closely related series of occurrences. Also,
       as this Court has stated in Neal, "we are concerned with the State's legitimate
       interest in telling a rational and coherent story of what happened." Id. Not
       only was the rape integrally intertwined with the murder of Isaac, the rape
       actually occurred while Cora was being held against her will. The trial court
       did not err in admitting evidence of the rape. The rape was admissible as part
       of the res gestae of the events surrounding the crime. This issue is without merit.

Hodges, 912 So.2d at 780-81. Hodges is barred by res judicata from raising this issue.

       XI.    ADMISSION OF PHOTOGRAPH OF VICTIM.

¶49.   Hodges next argues that the trial court erred in admitting into evidence a color

photograph of Isaac Johnson’s gunshot wound during Dr. Steve Hayne’s testimony. As the




                                               29
State points out, this issue was raised by Hodges on direct appeal. This Court stated the

following on this matter:

       State's exhibit 10 shows the midsection of the body cleaned and washed but
       before the autopsy began. The picture does not depict him cut up, the picture
       only shows the midsection of the body with a tiny bullet hole above the navel.
       The Comment to M.R.E. 401 states that if there is any probative value, the rule
       favors admission of the evidence. The photograph at issue accurately depicts
       the wound inflicted upon the victim and the cause of death. It certainly does
       not rise to the level of gruesomeness noted in McNeal [v. State, 551 So.2d 151
       (Miss. 1989)]. There is absolutely no blood anywhere in the photo, and there
       is nothing gory, gruesome or inflammatory about the picture. Dr. Hayne
       testified that the picture was taken to indicate the entrance of the gunshot
       wound and to show how such positioning affected his organs and blood loss,
       causing death. Photographs have evidentiary purpose when they describe the
       circumstances and cause of death. Accordingly, the trial court did not abuse its
       discretion in admitting the photograph.

Hodges, 912 So.2d at 782. Hodges is barred by res judicata from raising this issue.

       XII.   LESSER OFFENSE INSTRUCTIONS.

¶50.   Hodges next argues that the trial court erred in refusing to submit to the jury

instructions on the lesser offenses of manslaughter and trespass. As the State points out, this

issue was raised by Hodges on direct appeal. This Court stated the following on this matter:

       In sum, the trial court did not commit reversible error by refusing the
       manslaughter instructions. This Court has previously held that " if the killing
       was committed during the commission of one of the enumerated felonies in
       Miss.Code Ann. § 97-3-19(2)(e), one of which is burglary, capital murder is
       proven and the defendant is not entitled to a manslaughter instruction. Id.
       (citing Blue, 674 So. 2d at 1201). The evidence is clear. Isaac Johnson was
       murdered during the commission of a burglary of Isaac and Cora Johnson's
       home.

       Furthermore, since there was no evidentiary basis in the record for the lesser
       instruction of trespass, the trial court did not err in denying that instruction.
       Also, "the accused is not entitled to the lesser offense instruction where the
       evidence that proves the guilt of the lesser offense necessarily proves his guilt



                                              30
       of the principal charge." Doss, 709 So. 2d at 377. Therefore this issue is
       without merit.

Hodges, 912 So.2d at 783-84. Hodges is barred by res judicata from raising this issue.

       XIV. INVALID AGGRAVATOR AVOIDING ARREST.

¶51.   Hodges next argues that the trial court erred in instructing the jury that it could

consider as an aggravating factor that Hodges killed Isaac Johnson “for the purpose of

avoiding a lawful arrest.” Hodges specifically states that the State was incorrect in arguing

that Hodges took the telephone off the hook at the Johnson house to keep Johnson from

calling 911 after Hodges had shot him. As the State points out, this issue was raised by

Hodges on direct appeal. This Court stated the following on this matter:

       Hodges burglarized the home with the intent to commit an assault. Cora
       testified that Hodges informed her that the reason he went to her house that
       night was to kill her and her mother if she had been there. Before arriving at
       Cora's house, Hodges went home and changed into black clothes, black gloves
       and a beige ski mask. Hodges did not park in the driveway to the house but
       parked two houses down. The jury could have easily concluded that Hodges
       disguised himself in order to conceal his identity and when Isaac still
       recognized him, Hodges shot him in order to avoid apprehension and eventual
       arrest. Since efforts to avoid arrest after the murder may also be considered,
       there is ample evidence of Hodges’s continued attempts to avoid arrest. After
       shooting Isaac, Hodges took the phone off the hook. The jury could have
       concluded that this was done in order to keep Isaac from calling 911 after he
       was shot. Hodges also kidnaped Cora and her baby and fled the State. On the
       way to Alabama, Hodges made Cora throw his ski mask out the window of the
       car. This Court has held that efforts to dispose of and/or conceal the evidence
       of the crime are sufficient to support the avoiding arrest instruction. Wiley v.
       State, 750 So. 2d 1193, 1206 (Miss. 1999). To further conceal evidence of his
       crime, Hodges and his sister hid the gun that was used to shoot Isaac.

       This Court finds ample evidence in the record 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. The "avoiding lawful arrest"
       aggravating circumstance was properly submitted to the jury. This issue is


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       without merit.

Hodges, 912 So.2d at 786. Hodges is barred by res judicata from raising this issue.

       XV.    FAILURE TO INCLUDE JURY INSTRUCTIONS IN RECORD.

¶52.   Hodges next argues that the trial court erred in failing to include the reading of the

instructions to the jury in the appeal record. As the State points out, this issue was raised by

Hodges on direct appeal. This Court stated the following on this matter:

       Hodges does not claim any error from the proceedings which are missing from
       the record. Even though there was no transcription of the instructions read to
       the jury, copies of all the instructions which were read to the jury are included
       in the court's papers. Furthermore, the parties and the court conducted
       thorough and detailed, on the record hearings concerning the jury instructions.
       The record also indicates that the jury instructions were read to the jury by the
       Judge. Since the instructions were included in the court's papers Hodges was
       not denied a fair review of trial on appeal. This was sufficient to analyze all of
       the issues and properly review the case and since Hodges does not raise any
       error from this portion of the proceedings, this issue lacks merit.

Hodges, 912 So.2d at 788. Hodges is barred by res judicata from raising this issue.

       XVI. AGGREGATE ERROR.

¶53.   There was no aggregate error in this case.

                                       CONCLUSION

¶54.   Quintez Hodges’s Petition for Post-Conviction Relief is denied.

¶55.   PETITION FOR POST-CONVICTION RELIEF DENIED.

    WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ., CONCUR.
GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ,
EASLEY AND DICKINSON, JJ., NOT PARTICIPATING.




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