                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2000-DR-01077-SCT

LARRY MATTHEW PUCKETT


v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                8/7/1996
TRIAL JUDGE:                                     HON. RICHARD W. MCKENZIE
COURT FROM WHICH APPEALED:                       FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          OFFICE OF CAPITAL POST-CONVICTION
                                                 COUNSEL
                                                 BY: ROBERT RYAN
                                                     LOUWLYNN VANZETTA WILLIAMS
ATTORNEY FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL
                                                 BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                               E. LINDSEY CARTER
NATURE OF THE CASE:                              CIVIL - DEATH PENALTY - POST
                                                 CONVICTION
DISPOSITION:                                     LEAVE TO SEEK POST-CONVICTION RELIEF,
                                                 DENIED - 05/27/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC.

        SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.     Larry Matthew Puckett (Puckett) was indicted during the January 1996 term of the Circuit Court

of Forrest County, Mississippi, for the capital murder of Rhonda Hatten Griffis on October 14, 1995, while

engaged in the commission of the crime of sexual battery in violation of Miss. Code Ann. § 97-3-19(2)(e).

Venue was changed on Puckett's motion to the Circuit Court of Harrison County, Mississippi, First Judicial

District. A jury was empaneled on July 29-30, 1996. The jury returned a unanimous verdict finding
Puckett guilty of capital murder on August 2, 1996, and a verdict imposing a sentence of death in proper

form on August 5, 1996.

¶2.     Puckett's death sentence was set to be carried out on September 13, 1996. Puckett's Motion for

Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial, as well as his

supplemental Motion for Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial,

were denied, and his execution was stayed pending appeal on August 9, 1996.

¶3.     Puckett raised fifteen claims of error in his automatic direct appeal. This Court found his claims

to be without merit, save one, and remanded the case back to the trial court mandating that a hearing be

conducted under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed. 2d 69 (1986). See

Puckett v. State, 737 So.2d 322 (Miss. 1999). The trial court held the required hearing on August 25,

1999, and denied all relief on August 25, 1999. On appeal of that decision, this Court affirmed the denial

of relief on the Batson issue, the conviction of capital murder, and the sentence of death. Puckett v.

State, 788 So.2d 752 (Miss. 2001).

¶4.     Puckett then petitioned the United States Supreme Court for writ of certiorari in November of

2001. The United States Supreme Court denied the petition on March 3, 2003, and Puckett's petition for

rehearing on April 21, 2003. Puckett v. Mississippi, 537 U.S. 1232, 123 S.Ct. 1384, 155 L. Ed.2d

(2003); reh’g denied, 538 U.S.995, 123 S.Ct. 1823, 155 L. Ed. 2d 697 (2003).

¶5.     In the interim of Puckett's petition to the United States Supreme Court, this Court appointed the

Mississippi Office of Capital Post-Conviction Counsel (MOCPCC) to represent Puckett in his state post-

conviction proceedings. Puckett's counsel petitioned this Court for clarification of its August 2002 order,

from which this Court issued its opinion on December 12, 2002, granting Puckett 180 days within which

to file his petition for post-conviction relief. Puckett v. State, 834 So.2d 676 (Miss. 2002).

                                                FACTS

                                                    2
¶6.   This Court's opinion on Puckett's direct appeal contains the following facts:

      On October 14, 1995, shortly before 5:00 p.m., Mrs. Rhonda Hatten Griffis, age 28, was
      found lying in a large pool of blood next to the couch in the living room of her home on 198
      Sunrise Road, Petal, Mississippi. Mrs. Griffis was found wearing a t-shirt, and the only
      clothing on the lower part of her body was around her left foot. She had several gashes on
      the back of her head. There were other injuries to Mrs. Griffis' head, back, and chest,
      including a deep laceration and three to four hesitation marks to the neck. She was also
      bleeding from her vagina. She had several defensive wounds on her hands, arms, and
      elbows. Mrs. Griffis died as a result of the injuries; the cause of death was cranial cerebral
      trauma, secondary to blunt force trauma. A wooden stick or club covered with blood was
      recovered outside the residence.

      Rhonda's mother, Nancy Hatten, lived next door, roughly 150-175 feet from the Griffis'
      trailer. On the day of the murder, Mrs. Hatten helped Rhonda's boys, Justin, age 7, and
      Jeffrey, age 5, put up Halloween decorations in the yard. Rhonda was not feeling well that
      day, suffering from a headache and bad sinus problems. Later that afternoon, Mrs. Hatten
      was in her front yard when she heard a "scream and a thud" come from the Griffis' trailer.
      Mrs. Hatten then ran home and telephoned the trailer. The phone rang four or five times,
      but there was no answer. Mrs. Hatten hung up and dialed again, but there was still no
      answer. She then immediately went to the trailer.

      As Mrs. Hatten neared the trailer, she saw David Griffis, Rhonda's husband, and their two
      boys driving up to the trailer. David had been hauling pine straw all day and was returning
      with his last load. A blue truck was parked in the vacant lot beside the residence. Nancy
      entered the trailer door at the kitchen/dining room area and called for Rhonda but there
      was no answer. Puckett came from the hallway into the kitchen/dining area and raised a
      club back and started towards Nancy. As Nancy backed away from Puckett, Jeffrey
      entered the house followed closely by David. Justin was still outside. Nancy then took the
      children, ran to her house, locked the boys in the bathroom, and called 911. This 911 call
      was received by the 911 system at 5:01:15 p.m. and answered by the 911 operator at
      5:01:20 p.m. At 5:01:41 p.m., Nancy was placed on hold, as 911 received a call from the
      Griffis' trailer. Mrs. Hatten identified State's Exhibit Number 3 as the club that Puckett had
      in his hand in the trailer.The Griffis family knew Puckett because he was once employed
      by David Griffis. While Puckett was employed by David, the employees would gather at
      the Griffis' house before leaving for work.

      Jeffrey Griffis testified that when he entered the home, he saw Puckett with a club in his
      hand and holding on to Mrs. Hatten's shirt. David Griffis testified that when he entered the
      home, he saw Mrs. Hatten with Puckett standing in front of her with the club in his hand
      raised over his head. David indicated that Puckett was wearing army-type coveralls. The
      club had blood and a white substance on it. David asked Puckett what he was doing in his
      house and Puckett said he had hit a deer on the road and came to get David's help and to


                                                    3
use the telephone. David called out for Rhonda but no one answered. However, Puckett
told David that Rhonda was down at her mother's house. David asked Puckett about the
blood on the club and Puckett indicated that it was blood from the deer. David then dialed
911 from a portable phone that was laying on the counter beside him. This 911 call was
received by the 911 system at 5:01:27 p.m. and answered by the 911 operator at 5:01:41
p.m. This (David's) call was terminated at 5:04:42 p.m. At some point, David and Puckett
struggled and David got the club from Puckett. David tried to keep Puckett in the trailer
until the police arrived. However, Puckett took off running towards the door. As Puckett
was running for the door, David swung the club and hit Puckett on the shoulder. Then, as
Puckett ran out the door, David threw the club at him. Dr. Michael West testified at trial
that the club, State's Exhibit 3, was consistent with the wound pattern found on Puckett's
back.

Once Puckett exited the trailer, David entered the living room and reached for his pistol
that was usually on a gun cabinet just to the left of the living room door. However, the
pistol was not there. David did not see Rhonda's body lying in the living room at this time.
David then ran into the bedroom to retrieve a rifle from the bedroom closet. The bedroom
door is straight ahead as you turn towards the cabinet. As David exited the bedroom and
re-entered the living room, he then saw Rhonda laying on the floor. He saw that Rhonda
was injured and dialed 911 again to inform the police. David's second 911 call was
received by the 911 system at 5:05:01 p.m. and was answered by the 911 operator at
5:05:07 p.m. This call was terminated at 5:11:45 p.m. The time between the end of David's
first 911 call and the beginning of his second 911 call was 18 seconds. Sheriff's deputies
and paramedics arrived within minutes.

Before David fired Puckett, David considered him to be a decent employee and even
wrote a letter of recommendation for Puckett to become an Eagle Scout. Another former
employer of Puckett's, Ray Watkins, testified that shortly before Rhonda's murder, a maul
handle was broken at his work site. Watkins had the maul handle for several years,
between seven (7) and ten (10) years, and believed the maul handle to be State's Exhibit
No. 3. Watkins also testified that he had seen the handle in Puckett's truck on several
occasions.

Puckett was seen around 3:30 p.m. the afternoon of the murder at the same house from
which David Griffis was collecting pine straw. Puckett's blue 4-wheel drive truck was also
seen passing the Griffis' residence at approximately 4:41 p.m.

Puckett's truck was recovered the next night in a wooded area in Perry County. On
October 16, 1995, Puckett was apprehended near his mother's home in Perry County. At
the time of his arrest, Puckett nervously commented to his mother that "[t]his is a lot of law
enforcement for somebody who just committed a burglary." A duffle bag containing various
items including a pair of coveralls was recovered from Puckett at the time of his arrest.



                                              4
       Puckett did not deny being in the trailer at the time of the murder, but testified that he
       witnessed David Griffis murder his wife. He indicated that he had originally planned only
       to burglarize the house in order to find money to pay his truck note. He stated that the idea
       to burglarize the house just popped into his head at the time he went by the Griffis' house.
       Puckett testified that he parked his truck in a vacant lot beside the Griffis' trailer and put
       his coveralls on. Puckett saw Rhonda's car at the trailer, but proceeded to the door
       anyway and knocked. Puckett said that Rhonda let him in and they began to talk. [FN1]
       Puckett said that he saw the stick (State's Exhibit No. 3) lying on the living room floor. He
       stated that he and Rhonda began kissing and he then began acting out his sexual fantasy
       of undressing a woman while he remained fully clothed. He said that Rhonda then saw her
       mother approaching the trailer, grabbed her clothes and ran into the bedroom, and told
       Puckett to get rid of her mother. Puckett said he ran into the dining room area and had
       picked up the stick and decided to scare Mrs. Hatten away with the club. Puckett further
       stated that after Mrs. Hatten fled with the children, David accused Rhonda of sleeping with
       Puckett and began hitting her with the stick that David took from Puckett. After beating
       his wife, David struggled to keep Puckett in the trailer, but Puckett was able to escape
       while David was calling 911. At trial, Puckett indicated the whole incident took four or five
       minutes. Puckett said he hid in the woods for two days because he was afraid of David.

       FN1. Puckett also claimed to have had a prior sexual encounter with Rhonda several
       months before this incident, somewhere around May 1995. However, Puckett stated that
       he had no further contact with Rhonda between May 1995 and the date of the murder on
       October 14, 1995.

       Puckett indicated that State's Exhibit No. 3 was not the same maul handle which he had
       obtained from a former employer, Ray Watkins. He testified instead that he had destroyed
       that maul handle while he was working for Mark Hicks, by making a torch out of it to burn
       off some trash.

Puckett v. State, 737 So.2d at 327-29.

                                      ISSUES AND ANALYSIS

¶7.    Puckett has raised the following issues, verbatim, in his petition for post-conviction relief:

       I.      PETITIONER WAS DENIED HIS CONSTITUTION [sic] RIGHTS
               TO BE TRIED BY TWELVE IMPARTIAL JURORS.


               A.       Puckett Was Denied a Fundamentally Fair Trial with the
                        Seating of a Juror Who Could Not Comprehend English.




                                                     5
¶8.      It is Puckett's contention that he was denied due process and a fundamentally fair trial because of

the seating of juror No. 35, Tomoe Parker, whom Puckett asserts could not comprehend English. First,

this issue was capable of being raised at the trial level and on direct appeal. It is procedurally barred from

being raised for the first time in Puckett's petition for post-conviction relief. Miss. Code Ann. § 99-39-

21(1); Simon v. State, 857 So.2d 668, 682 (Miss. 2003). Without waiving the procedural bar, Puckett's

contention is also without merit.

¶9.      Miss. Code Ann. § 13-5-1 provides, in relevant part, as follows:

         Every citizen not under the age of twenty-one years, who is either a qualified elector, or
         a resident freeholder of the county for more than one year, is able to read and write,
         and has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors
         within a period of five years and who is not a common gambler or habitual drunkard, is a
         competent juror. No person who is or has been within twelve months the overseer of a
         public road or road contractor shall, however, be competent to serve as a grand juror.
         The lack of any such qualifications on the part of one or more jurors shall
         not, however, vitiate an indictment or verdict.

(emphasis added).

¶10.     The record indicates that Puckett affirmed Ms. Parker's presence after fully exploring her abilities

to read, write, and comprehend English. During voir dire, the trial court asked if there was anyone who

cannot read or write. Two venire members raised there hands, and the following dialogue was had at the

bench:

         THE COURT: All right. We are at the bench, T-O-M-O-E Parker, No. 35. We are in
         the presence of the Defendant and defense attorney. And Roger Dale Ellerman, Juror
         No. 53.

         Ms. Parker, how much formal education have you had?

         JUROR TOMOE PARKER: I have a high school--I am from Japan.[1]



         1
             Ms. Parker indicated on her Jury Information Questionnaire that her educational level was 14.

                                                      6
        THE COURT: Where did you do your educational work? Was that in Japan or here in
        the states?

        JUROR TOMOE PARKER: Japan.

        THE COURT: You appear to be very fluent as far as English is              concerned.

        JUROR TOMOE PARKER: I cannot understand big words. That is my problem. When
        you started getting people talking so fast - -


        THE COURT: But you can read and write; it is just a matter of             comprehending?

        JUROR TOMOE PARKER: Somewhat - - but when I get the big words, I cannot
        understand.

        THE COURT: If You were selected for this jury panel, and you were sitting there and
        either a witness or an attorney said something you didn't understand, would you raise your
        hand and let us know that and have it clarified for you? Would you have any problem
        doing that? You would do that?

        JUROR TOMOE PARKER: If I could understand, I will.

        MR. ADELMAN [Defense counsel]: Were you able to fill out the questionnaire?

        JUROR TOMOE PARKER: No, I didn't; my daughter filled it out for me.

        THE COURT: You understood the questions?

        JUROR TOMOE PARKER: Yes. Writing and reading I have no problem.

        MR. ADELMAN: If you were presented with written instructions of the Court, would you
        be able to read   those?

        JUROR TOMOE PARKER: If people write - - and I have time to read.

        THE COURT: They would be typed. You will have all the time you need.

¶11.    The trial court then went on to question the reading and writing abilities of Juror No. 53, Mr.

Ellerman. Upon concluding its questions, the trial court then asked for the views of counsel regarding these

two potential jurors. The record reflects the following dialogue:


                                                     7
        THE COURT: I am going to need some direction. I don't want to make this decision.
        Obviously they both can read and write to a limited degree. I don't think they are
        automatically excluded under the statutory provision; so   we are down to the point
        of whether or not y'all want to agree.


        MR. ADELMAN: Mr. Ellerman said he could not understand the questions. I move to
        strike.

        THE COURT: Do you have a problem?

        MR. JONES [Prosecutor]: If we do one, we need to do both.

        MR. ADELMAN: Why is that?

        MR. JONES: That will be fine; let's do the one.

                                        ***
        MR. JONES: Leave the woman [Tomoe Parker] and strike the man [Mr. Ellerman].

        MR. ADELMAN: I am moving to strike the man. Are you moving to strike the woman?

        MR. JONES: No.

        THE COURT: Mr. Ellerman, thank you for coming. We will excuse you.
                                                   ***
        THE COURT: And Ms. Parker, if at any point in time you don't                 understand what
        we're saying or doing, all you need to do is raise your hand and tell us that, and we'll either
        slow down or explain it for you or whatever. Okay?

        JUROR TOMOE O. PARKER: Yes, sir.

¶12.    First, it is clear from the record that both parties explored Ms. Parker's abilities to read, write, and

comprehend. The record also shows that Ms. Parker indicated that she could read and write as required

by Miss. Code Ann. § 13-5-1. The trial court held that she was not automatically excluded under the

statutory provisions. The trial court then invited the prosecution and the defense to reach an agreement as

to whether she should stricken. The record appears to indicate that the prosecution was ready to strike

Ms. Parker and that it was the defense that was not agreeable. Further, Puckett did not object to Ms.


                                                      8
Parker when the state tendered her as a juror. When the trial court presented Ms. Parker to the Defense,

Mr. Adelman replied, "Will accept Tomoe Parker."

¶13.    Puckett offers the affidavit of Ms. Tomoe Parker in an apparent attempt to impeach the verdict.

Puckett argues that Ms. Parker "was forced to give in to what, she thought, must be the superior judgment

of her fellow jurors, who had been able to understand the entire proceedings." As the State correctly points

out, Rule 606(b) of the Mississippi Rules of Evidence provides:

        (b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a
        verdict or indictment, a juror may not testify as to any matter or statement occurring during
        the course of the jury's deliberations or to the effect of anything upon his or any other
        juror's mind or emotions as influencing him to assent to or dissent from the verdict or
        indictment or concerning his mental process in connection therewith, except that a juror
        may testify on the question whether extraneous prejudicial information was improperly
        brought to the jury's attention or whether any outside influence was improperly brought to
        beat upon any juror. Nor may his affidavit or evidence of any statement by him
        concerning a matter about which would be precluded from testifying be
        received for these purposes.


(emphasis added). "Moreover, jurors generally may not impeach their own verdict by testifying about

motives or influences affecting deliberations." Lewis v. State, 725 So.2d 183, 190-91 (Miss. 1998)

(citing Fairman v. State, 513 So.2d 910, 915-16 (Miss. 1987)).

¶14.    Finally, at the conclusion of the guilt phase of Puckett's trial, the jury was polled. The trial court

specifically asked Ms. Parker if the verdict of guilty of murder during the commission of a sexual battery

was indeed her verdict. The record reflects the following dialogue:

        THE COURT: Tomoe Parker, is that your verdict?

        JUROR TOMOE PARKER: Yes.

¶15.    At the conclusion of the sentencing phase, the jury was polled again regarding their decision that

Puckett should suffer death.

                                                     9
        THE COURT: Tomoe Parker, is that your verdict?

        JUROR TOMOE PARKER: Yes.

This issue is not only procedurally barred, it is without merit.

                 B.      The Trial Judge Should Have Su Sponde [Sic]
                         Dismissed Mrs. Parker.


¶16.    Puckett's contends that the trial court judge should have dismissed Ms. Parker, sua sponte, upon

learning that she did not complete the jury information questionnaire on her own. As the record indicates,

Ms. Parker told the trial court that her daughter filled out the questionnaire.

¶17.    This issue is without merit. Puckett is taking issue with the portion of Miss. Code Ann. § 13-5-1,

which reads: "The judge shall personally examine the answers of each juror prior to empaneling the jury

and each juror who cannot complete the above form shall be disqualified as a juror and discharged." The

purpose of the form is to aid the trial court in determining who can and cannot read and write. The record

reflects extensive voir dire by the trial court regarding Ms. Parker's ability to read and write. Puckett's

counsel asked Ms. Parker if she filled out the questionnaire.

        MR. ADELMAN [Defense counsel]: Were you able to fill out the questionnaire?

        JUROR TOMOE PARKER: No, I didn't; my daughter filled it out for me.

        THE COURT: You understood the questions?

        JUROR TOMOE PARKER: Yes. Writing and reading I have no problem.

Ms. Parker clearly indicated that she could read and write.

¶18.    In Herring v. State, 374 So.2d 784 (Miss. 1979), this Court held that a person who meets the

other qualifications and can read and write only a few words is qualified as a juror. Further, in Johnson

v. State, 416 So.2d 383 (Miss. 1982), the Defendant asserted that juror Leflore could not read or write

                                                     10
and moved for a mistrial. A hearing was conducted at which juror Leflore testified that she could read and

write, that she read the jury instructions, and that it was only after the jury dispersed that she became ill and

unable to read. The Defendant offered juror Leflore's step-daughter, Mrs. Griffin, as a witness, who

testified that juror Leflore could not read. The trial judge overruled the motion for a mistrial. This Court

held that "[i]n view of the fact that the evidence was conflicting, a factual dispute evolved for resolution by

the trial judge" and held the issue to be without merit. Id. at 390.

¶19.    In this case, there was not even a dispute as to whether Ms. Parker could read and write. Despite

the fact that Ms. Parker stated her daughter filled out the Jury Information Questionnaire, the trial judge and

Puckett's counsel questioned her about her ability to understand the questions asked on the questionnaire

and her ability to read and write. The record supports the trial judge’s finding that Ms. Parker was a

qualified juror. This issue is without merit.

                 C.       Inappropriate Contact by Court Personnel Resulted in
                          a Violation of Petitioner's Fundamental Rights.


¶20.    Puckett asserts that "[j]ury members consumed alcohol and played cards with members of law

enforcement some of whom testified during the course of the trial." Puckett directs our attention to the

affidavit of Ms. Tomoe Parker. Her affidavit reads: "The policemen and jurors played cards together and

drank beer together while at the Holiday Inn in Gulfport."

¶21.    First, nothing in Ms. Parker's affidavit suggests that the juror were drinking beer with law

enforcement officers who testified during the course of the trial. Further, Puckett has not identified who

those law enforcement officers who allegedly testified and drank beer with the jurors. It appears that Ms.

Parker is most likely referring to the bailiffs assigned to the sequestered jury.




                                                       11
¶22.    Second, Puckett cites the Hawaii case of Arruda v. Tanaka, 370 P.2d 468 (Haw. 1962), and

asserts that alcohol consumption by any member of the jury was improper and constituted error. What the

Hawaiian court actually held was that the consumption of liquor by some of the jurors, once segregated,

is improper and constitutes error, but does not amount to prejudicial error or conduct as a matter of law.

The material inquiry is whether the party to be affected by the verdict was prejudiced thereby as matter of

fact. Id. at 475. "'The material inquiry in such cases is whether the defendant was prejudiced thereby, in

other words, whether the use was such as to affect the mind of any of the jurors and thus deprive the

defendant of the benefit of the condition of mind of each and all of the jurors to which he is entitled; and if

it appears that the defendant was not prejudiced the verdict can not be reversed." Id. (quoting Territory

v. Ferris, 15 Haw. 139 (1903).

¶23.    In King v. State, 580 So.2d 1182 (Miss. 1991), this Court reviewed a similar circumstance. The

trial court in King entered a sequestration order that required jurors, along with two bailiffs, to stay at a

Holiday Inn each night of the four-day trial. On two separate occasions, three of the jurors visited the

motel's lounge. Id. at 1186. Upon learning of the juror's visits to the lounge, two of the defendants filed

a post-trial "Motion to Set Aside Verdict, Declare Mistrial, and Grant a New Trial." Id. Although the trial

court expressed its disappointment in the jurors' conduct, the trial court held that the conduct did not bring

about the vitiation of the guilty verdict. Id. Both the trial court and this Court were more concerned with

the separation of the sequestered jurors. After finding that the defendants did not present even a "scintilla"

of evidence, this Court affirmed the trial court's decision to overrule the motion.

¶24.    In the instant case, Puckett has not asserted that the jurors were intoxicated or that they were

separated. Puckett does not present evidence that the jurors discussed the case or that the jurors were



                                                     12
subjected to outside influence. Puckett merely asserts that "[s]uch conduct raises a specter of impropriety."

This issue is without merit.

                 D.      The Baliff [Sic] Assigned to the Jury Was Personally
                         Affected by a Capital Murder.

¶25.    Puckett maintains that he did not receive a fair trial because jury members were aware of the

circumstances surrounding the death of Bailiff Ladner's husband, Bruce Ladner, who was a highway

patrolman. Bruce Ladner was the victim of a capital murder. Puckett asserts that such knowledge by the

jury constitutes extraneous influence because "anything less than a guilty verdict and sentence of death

would appear to be disrespectful to not only Mrs. Ladner but also to the memory of her deceased

husband."

¶26.    First, Puckett does not offer any authority in support of his contention. This Court has continually

considered issues of error not supported by citation or authority as abandoned. Thibodeaux v. State,

652 So.2d 153, 155 (Miss. 1995). It is the duty of an appellant to provide authority and support of an

assignment of error. Drennan v. State, 695 So.2d 581, 585-86 (Miss. 1997); Hoops v. State, 681

So.2d 521, 526 (Miss. 1996); Kelly v. State, 553 So.2d 517, 521 (Miss. 1989); Smith v. State, 430

So.2d 406, 407 (Miss. 1983); Ramseur v. State, 368 So.2d 842, 844 (Miss. 1979). Because Puckett

has failed to meet the burden of providing authority to support his assignment of error, he is procedurally

barred. Holland, 705 So.2d at 329; Drennan, 695 So.2d at 585-86.

¶27.    Without waiving the procedural bar, Puckett's claim has no merit. Puckett offer no proof that any

juror had knowledge of the circumstances surrounding the death of Bailiff Ladner's husband or that such

knowledge had a prejudicial effect on the jury's verdict. Puckett directs this Court's attention to his Exhibit

7, purportedly and affidavit of "Harris." Puckett's Exhibit 7 is an affidavit from James Green, an investigator



                                                      13
for the MOCPCC who swears in his affidavit to a telephone interview with Ms. Tomoe Parker. There is

nothing in Green's affidavit that relates to Bailiff Ladner or her late husband.

¶28.    The only affidavit provided in Puckett's exhibits from an individual named "Harris" is Exhibit 8,

which is a sworn affidavit of Tomika Harris. Harris is also an investigator for the MOCPCC. In this

affidavit, Harris swears conducting an interview with Mr. Jerry Parker, an alternate juror in Puckett's trial.

Harris's affidavit also comments on various statements made by Mr. Parker to her.

        Mr. Parker informed us that he only served as an ALTERNATE juror on this case. He
        stated that the bailiff's names were Mr. Warden and Mrs. Ladner (Mrs. Ladner is the
        widow of the late Bruce Ladner, officer slain in the line of duty years earlier).

Puckett's petition, Ex. 8, Affidavit of Tomika Harris.

¶29.    This is the only reference of Bruce Ladner's death presented by Puckett's exhibits to his application

for post-conviction relief. This hearsay reference to Bruce Ladner does not assert that any juror's decision

was influenced in any way because of Mrs. Ladner's presence as a bailiff in Puckett's trial. This issue is

both barred from review, and without merit.

        II.     THE DAUBERT/KUMHO GATE-KEEPING FUNCTIONS SHOULD
                APPLY IN STATE DEATH PENALTY CASES.

¶30.    Puckett claims that "the Mississippi Court erred in not applying the standards established by this

Court in Duabert [sic] v. Merill [sic]Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786

(1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999), in

determining whether [Dr. Michael West's, D.D.S.,] testimony should have been allowed."2 Basically

Puckett contends that the trial court and this Court erred in finding that Dr. West could testify as an expert




        2
         It appears from the wording of this issue that Puckett is presenting this issue to the U.S. Supreme
Court which, notably, denied his petition for writ of certiorari.

                                                     14
in wound pattern analysis. Puckett maintains that Dr. West's methods were not generally accepted within

the forensic science field and he should not have been allowed to testify.

¶31.    First and for most, the issue of whether Dr. West should have been permitted to testify as an expert

witness in the field of wound patterns was raised and discussed on direct appeal. Puckett, 737 So.2d at

341-43. This Court held that "the trial court did not err in allowing Dr. West to testify as an expert in the

field of wound patterns." Id. at 343. This issue is procedurally barred. Miss. Code Ann. § 99-39-21(3).

¶32.    In his reply brief, Puckett offers his Exhibit 16 which he identifies as Minutes of the Ethics

Committee of the American Academy of Forensic Science. The document was in response to a complaint

regarding Dr. West's scientific methods. The complaint was filed after Dr. West testified in a capital

murder case in 1992 . The Academy appears to have recommended that Dr. Michael H. West be

"expelled from the Academy. . . . "

¶33.    Regardless of Puckett's contention and his Exhibit 16, this Court stated the following on Puckett's

direct appeal regarding Puckett's challenge of Dr. West's testimony:

        It is interesting to note that the pathologist, Dr. Steven Hayne, also testified that the victim's
        wounds were consistent with State's Exhibit No. 3 without objection. Furthermore,
        Puckett himself testified that State's Exhibit No. 3 was the murder weapon, only that David
        Griffis was the one who used it to beat his wife to death. Puckett also admitted being hit
        by David with that very same stick. Consequently, even if it had been error to allow Dr.
        West to testify as a wound pattern expert, his testimony could not have been prejudicial
        and harmful as Puckett himself confirmed everything Dr. West stated during his own
        testimony.

Puckett, 737 So.2d at 343. Relief on this claim is denied.

        III.    PUCKETT WAS DENIED HIS FUNDAMENTAL AND
                CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE
                ADMISSION OF THE TESTIMONY OF JUSTIN AND JEFFERY
                GRIFFIS.




                                                       15
¶34.     Puckett's claims that he was denied his fundamental right to a fair trial because the trial judge

overruled his objection and permitted the testimony of Justin3 and Jeffery Griffis,4 the victim's children.

Puckett contends that the State had already established evidence through Nancy Hatten and David Griffis

that Rhonda was home alone while David and the children were out gathering pine straw before returning

home around 5:00 P.M. Puckett asserts that the testimony of the children "did not go to anything at issue.

Their testimony was presented by prosecution purely for sympathy value." Puckett objected to the

testimony of Jeffery and Justin at trial on the basis of relevancy. He also objected at trial to the cumulative

nature of their testimony. The trial judge found that the boys were competent witnesses and allowed their

testimony. Although Puckett was capable of raising this issue on direct appeal, he did not. The issue is

procedurally barred. Miss. Code Ann. § 99-39-21(1); Wiley v. State, 750 So.2d 1193, 1208 (Miss.

1999).

¶35.     Without waiving the procedural bar, the issue is also without merit. Puckett cites two cases in his

argument. First, Puckett quotes Cox v. State, 849 So.2d 1257 (Miss. 2003). "Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence." Id. at 1269 (emphasis added). This statement from

Cox is, verbatim, M.R.E. 403. The Comment to Rule 403 states that "[t]his rule also gives the trial judge

discretion to exclude evidence which is merely cumulative." M.R.E. 403 cmt., citing Carr v. State, 208

So.2d 886 (Miss. 1968). Further, "[the relevancy and admissibility of evidence are largely within the


         3
             Justin was seven years old at the time of the murder and eight years old at the time of Puckett's
trial.
         4
             Jeffery was five years old at the time of the murder and six years old at the time of Puckett's trial

                                                        16
discretion of the trial court and reversal may be had only where that discretion has been abused." Gray

v. State,728 So.2d 36, 56 (Miss. 1998) (citations omitted).

¶36.    Puckett also cites Flowers v. State, 842 So.2d 531, 541 (Miss. 2003), for the proposition that

"[evidence should be limited to what is relevant to the single issue." As the State points out, the context in

which this statement was made in Flowers was a discussion regarding evidence of other crimes, wrongs,

or bad acts pursuant to M.R.E. 404(b). That is not to say that eyewitness testimony should not also be

relevant. "'Relevant Evidence' means evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would be

without the evidence." M.R.E. 401.

¶37.    Through his testimony, Jeffery identified Puckett as the man he saw inside the family's home upon

returning from collecting straw on the day of the murder. He also testified that Puckett was holding on to

Nancy Hatten's shirt and holding a "club" in the other hand. It cannot be said that Jeffery's testimony was

irrelevant.

¶38.    Justin testified that he saw his mother before going with his brother and father to collect pine straw

and that his mother was okay at that time. The state argued at trial that the defense had made the opening

statement that somebody else had murdered Rhonda and that Justin's testimony would help established the

time frame in which the murder had occurred. This Court finds that Justin's testimony was also relevant.



¶39.    Even if we assume, for the sake of argument, that the relevant testimony of Justin and Jeffery was

cumulative to matters already established through testimony of Nancy Hatten and David Griffis, Puckett's

defense was to accuse David Griffis of the murder. The testimony of the boys corroborated portions of

David Griffis's testimony. The trial judge did not abuse his discretion in allowing the testimony.



                                                     17
¶40.    Puckett's claim is both procedurally barred and without merit.

        IV.     WHETHER IT WAS IMPROPER AND REVERSIBLE ERROR FOR
                THE DISTRICT ATTORNEY TO INQUIRE OF THE PETITIONER
                AS TO HIS POST-MIRANDA SILENCE, WHERE PETITIONER
                MADE BRIEF POST-    ARREST STATEMENTS AFTER WHICH
                HE INVOKED HIS RIGHT TO REMAIN SILENT.

¶41.    Puckett argues that the prosecution committed reversible error during cross-examination by

improperly inquiring into the defendant's post-Miranda silence. This identical issue was raised as

Puckett's assignment of error VII on his direct appeal before this Court. Puckett v. State, 737 So.2d

at 347. This Court agreed with the State's position that the issue was procedurally barred, not only

because the defense did not object to the prosecutor's line of questioning, but also because the issue was

not raised in Puckett's Motion for New Trial. Id. at 349. However, this Court discussed the merits of

Puckett's contention to determine if his fundamental rights had been violated. Id. at 350. This Court

ultimately held Puckett's claim to be without merit. Id.

¶42.    Puckett's attempt to raise this issue again in his motion for post-conviction relief is procedurally

barred as res judicata. Miss. Code Ann. §99-39-21(3); Wiley v. State, 750 So.2d at 1200. As this

Court found previously, Puckett is not entitled to relief on this assignment of error.

        V.      THE PETITIONER WAS DENIED HIS SIXTH AMENDMENT
                RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT
                THE GUILT AND SENTENCING PHASES OF THE TRIAL
                WITHIN THE MEANING OFSTRICKLAND v. WASHINGTON, AND
                CORRESPONDING PORTIONS OF T H E M I S S I S S I P P I
                CONSTITUTION.

¶43.    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):




                                                     18
"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, 466 U.S. 668, 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 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

                                             19
        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).

                A.       Failure to Present a Defense in the Guilt-Innocence
                         Phase of the Trial.

¶44.    During the guilt-innocence phase of the trial, the defense called Puckett's Boy Scout Leader and

Assistant Leader as character witnesses. Puckett also took the stand in his own defense. Puckett asserts

that his trial counsel was ineffective because "[t]hese three witness [sic] comprised the sum total of the

defense." Puckett concludes that his counsel failed to provide a meaningful defense.

¶45.    Again, it was Puckett's defense that David Griffis committed the murder. All of those individuals

who were at the scene of the crime following Rhonda's murder and witnessed Puckett at the scene testified

as witnesses for the State. Puckett neither provides this Court with insight as to who else should have been

presented as a defense witness during the guilt phase nor does he assert that defense counsel was deficient

in his cross-examination of the state's witnesses. Puckett has offered nothing by way of proof that his

defense counsel was ineffective other than the conclusory allegation that only calling three witnesses,

including Puckett, was deficient.

¶46.    Puckett has not presented this claim with any specificity.

        [I]n order to sustain summary dismissal, of the ineffective assistance of counsel claim, under
        Miss.Code Ann. § 99-39-11(2) (Supp.1997), the allegation must be alleged with
        specificity. '[H]e must specifically allege facts showing that effective assistance of counsel
        was not in fact rendered, and he must allege with specificity the fact that but for such
        purported actions by ineffective counsel, the results of the trial court decision would have
        been different. Smith v. State, 434 So.2d 212, 219 (Miss.1983). See also Miss.Code
        Ann. § 99-39-9(1)(c) (1994); Ford v. State, 708 So.2d 73, 75 (Miss.1998).


                                                     20
Wilcher v. State, 863 So.2d 776, 805 (Miss. 2003). This claim is summarily dismissed.

                 B.      The Failure to Challenge Juror Number 35 after
                         Counsel Learned That She Did Not Fill out Her Own
                         Jury Questionnaire.

¶47.    In this claim, Puckett revisits the issue of juror No. 35, Ms. Tomoe Parker. He asserts that his

defense counsel was ineffective for failing to strike Ms. Parker because she did not personally complete

her juror questionnaire. Puckett concludes his argument by stating that "[the inclusion of Mrs. Parker on

Petitioner's jury panel, after she clearly indicated that she could not adequately understand English, was

prejudicial."

¶48.    As discussed previously, the trial court asked the venire if there was anyone who could not read

or write. Ms. Parker was one of two venire members who came forward at that time. As the trial court

conducted voir dire of these two venire members, Ms. Parker indicated that her daughter filled out the

questionnaire for her. However, the trial court questioned Ms. Parker extensively and was satisfied that

she could, in fact, read and write. The trial court was also satisfied as to her English speaking abilities. As

was stated above in Puckett's first claim of error, Puckett was not denied a fundamental right by Ms.

Parker having been seated as a juror. It cannot be maintained that Puckett's counsel was deficient for not

moving to have her stricken from the jury.

¶49.    Defense counsel is presumed competent. Stringer, 454 So.2d at 477. There is a presumption

that counsel's conduct is reasonable and professional and that decisions made are strategic. Murray v.

Maggio, 736 F.2d 279, 282 (5th Cir. 1984). Even if we assume, for the sake of argument, that Puckett's

counsel was deficient for failing to have Ms. Parker stricken from the jury, Puckett has not demonstrated

how the outcome of the trial would have been different.



                                                      21
¶50.    The ineffective assistance of counsel claim fails because Puckett has not demonstrated the requisite

deficient performance and resulting prejudice.

        C.       It Was Ineffective Assistance of Counsel for Failing to Voir Dire the
                 Jury Concerning Their Beliefs Regarding Issues of Adultery.

¶51.    Puckett testified that he had gone into the Griffis home with the intention of stealing money to pay

his truck note. Puckett, 737 So.2d at 329. Puckett also testified that Rhonda was home and let him enter

the home. Id. Further, Puckett told the jury that he and Rhonda began kissing and then he began to live

out his sexual fantasy of undressing a woman while he remained dressed. Id. Puckett's theory of the case

was that David Griffis murdered his wife after learning that Rhonda and Puckett were having an affair. He

asserts that his counsel was ineffective for failing to voir dire the jury to determine "whether members of the

venire had any bias or prejudice regarding adultery, fornication and/or underage sex." Id.

¶52.    As the State properly points out, Puckett was on trial for capital murder during the course of sexual

battery, not while engaged in the acts of adultery or fornication. Further, there was no question of

underage sex because Puckett was eighteen at the time of the crime and the victim was twenty-eight.

¶53.    Puckett does not demonstrate how the failure to question the venire about this was deficient, nor

does he demonstrate how he was prejudiced. Puckett's claim is nothing more than a conclusory allegation

of ineffective assistance of counsel that is completely without merit. Puckett has failed to allege with

specificity his claim for ineffective assistance of counsel and the claim should be summarily dismissed.

Wilcher, 863 So.2d at 805.

                 D.      Trial Counsel Was Ineffective by Failing to Request and
                         Send Samples for Independent Testing.

¶54.    The following is Puckett's argument in its entirety:



                                                      22
        Trial counsel's performance was deficient because he failed to request and send evidence
        samples for independent testing. Testing of the samples and evidence collected would
        have enabled the Petitioner to challenge to prosecution on their theory of the case. The
        failure to provide independent testing prejudiced the Petitioner by preventing a vigorous
        defense.

Puckett's petition, at 35.

¶55.    Again, Puckett has done nothing more than submit a conclusory allegation. He has failed to allege

with specificity support for his claim of ineffective assistance of counsel and the claim should be summarily

dismissed. Wilcher, 863 So.2d at 805. Further, Puckett cites no authority for his contention. This Court

has continually considered issues of error not supported by citation or authority as abandoned.

Thibodeaux v. State, 652 So.2d at 155. Puckett does not demonstrate what sample or samples should

have been tested, what the independent testing would have revealed, or that the testing that was performed

was inaccurate or somehow defective.

¶56.    It is clear that Puckett has not demonstrated how counsel's performance was deficient. This claim

does not pass the first prong of the standard set forth in Strickland.

                 E.       Counsel Failed Their Duty to Investigate and Present
                          Mitigating Evidence.

¶57.    Puckett asserts that during the sentencing phase his counsel presented limited testimony from a

former teacher, a superintendent, a scouting master, a prison chaplain, Puckett's mother and a friend of

hers. Puckett did not testify on his own behalf. Puckett claims that he was unfairly prejudiced and denied

his fundamental Sixth Amendment right to effective counsel because none of his classmates, friends or other

relatives were called to testify.

¶58.    The record indicates that defense counsel called six witnesses to testify on Puckett's behalf during

sentencing. Puckett's counsel first called Susan Greer, one of Puckett's high school teachers who had


                                                     23
taught Puckett in three different subjects during a one-year period. She testified that Puckett was a good

student, a very mannerly young man, and that she never had a problem with him in the classroom. She

testified of her experience with Puckett and several other children while on a seven-day field trip to

Washington D.C. Greer testified that Puckett was a very friendly young man and that she had no

disciplinary problems with Puckett. She then asked the jury to spare Puckett's life.

¶59.    The next witness to testify on Puckett's behalf was Pat Jones, the Superintendent of Education of

Perry County Schools. Jones testified that he knew Puckett very well and had known Puckett since

Puckett was in the ninth grade at Perry Central High school. Id. at 1150. Jones testified that Puckett

often came to visit at Jones's home for swimming parties, and that Puckett visited even after having

graduated high school. Jones stated that Puckett was a "good, caring child" and that Jones never saw

violence in Puckett. Jones testified that he and Puckett often talked about religion and feelings. Jones told

the jury that Puckett had a "self esteem" problem and that Jones made it a point to help build Puckett's

good moral character. Jones affirmed that he thought Puckett could make something positive of this life

experience despite being incarcerated, and Jones asked the jury to spare Puckett's life.

¶60.    The third witness to testify in mitigation was Bill Wall. Wall owns a finance company and is an

inmate chaplain where Puckett is incarcerated. Wall testified that he met Puckett the second day of

Puckett's incarceration in October of 1995. Wall testified that Puckett had completed three Bible study

courses and was about to begin the fourth. Wall also testified that Puckett always came to the Wednesday

afternoon counseling sessions. Wall told the jury that Puckett got along well with the other inmates and

officers. Wall stated that Puckett "had accepted the Lord " and Wall was of the belief that Puckett "could

encourage [other inmates] in the study of God's word." Wall asked the jury to spare Puckett's life. He also

asked the jury to consider Puckett's age.


                                                     24
¶61.    The next witness to testify for Puckett was Dora Harrington. Mrs. Harrington and Puckett's mother

attended school together. Mrs. Harrington testified that her children and Puckett had spent considerable

time together camping, swimming and picnicking. She told the jury that she had been close to Puckett, and

she asked the jury to spare his life.

¶62.    Puckett's mother, Mary Puckett, testified next. The defense counsel asked Mary Puckett if she

was asking the jury to spare her son life, to which she replied, "yes, I am." The State submits that the line

of questioning to Mary Puckett by the defense was limited because Puckett's mother had asked him to

move out of the family home just two weeks prior to the murder, which the State asked her to expound

upon.

¶63.    The final witness called on Puckett's behalf was Lamar Pritchard. Pritchard works for the Internal

Revenue Service and was Puckett's leader in the Boy Scouts. He testified that he knew Puckett for

approximately five years and that he last saw Puckett in May of 1995, approximately five months before

the murder occurred, when Puckett received his Eagle Scout award. Pritchard told the jury that Puckett

showed leadership qualities, had perseverance, and that Puckett took younger scouts and helped them

develop. Finally, Pritchard explained to the jury that Puckett could live a productive life in prison and

asked them to spare Puckett's life.

¶64.    Puckett asserts that his counsel failed to investigate and produce mitigating evidence that could have

been offered by calling classmates, friends or other relatives. As proof of his contention, Puckett offers an

affidavit of Mary Puckett and two unsworn statements from friends.

¶65.    Mary Puckett states in her affidavit that

        [e]ven though Mr. Adelman chose to call only a few witness [sic] on Mike's [sic] behalf,
        there were many other people-family and friends who could have testified: Debbie Puckett,
        his aunt; Paul Puckett, uncle; Harold Puckett, stepfather; Larry Ross, Matt's natural father;
        Lisa Connerly, aunt; Keith Stennet, uncle; Frankie Harold, Corey McLain and Herbert
        Wiggins, friends. There was also the person who certified Matt as an Eagle Scout and did

                                                     25
        an extensive investigation into matt's background. There were also several other teachers
        who were available. I told Mr. Adelman about some of these people and would have had
        more information and witnesses if I had been told these things were important.

This affidavit does nothing more than identify people that Mary Puckett feels would have been helpful to

her son's sentencing hearing. She does not state what these potential witness might have testified to or how

that testimony would have been any different than the testimony that was offered from the six individuals

that did testify on Puckett's behalf. Further, Puckett has failed to provide affidavits from those individuals

named by his mother in her affidavit.

¶66.    Puckett also offers the unsworn statements of Ronnie Ainsworth and Iris Moree Hinton which he

refers to as affidavits.5 An affidavit is "[a] written or printed declaration or statement of facts, made

voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a

person having authority to administer such oath or affirmation." Black's Law Dictionary, 58

( 6th ed. 1990). (emphasis added); see also Wilborn v. State, 394 So.2d 1355, 1359 (Miss. 1981)

(Patterson, C.J., dissenting).

¶67.    In his unsworn statement, Ainsworth states that Puckett was "a good friend, the kind of person you

could call in the middle of the night for a ride. He'd help you get a job, anything for a friend." Ainsworth

also states, "I do not keep in touch with Matt but still consider him a friend. Matt was loved by his friends

and none of us was [sic] ever asked to testify on his behalf. I can think of 15-20 people who would have

testified on Matt's behalf had we been asked."



        5
             The statements of Ainsworth and Hinton have not been notarized. Instead, Puckett offers an
affidavit of Kendra Lee-Lindsey, an intern coordinator at the Mississippi Office of Capital Post-Conviction
Counsel who states that she was present when Ainsworth and Hinton signed there statements. She also
states that she does not know the reason why those statements were not notarized. Puckett's petition, Ex.
11. Miss. Code Ann. § 99-39-9(1)(e) requires that a petitioner furnish affidavits to support his claims or
show cause why he could not furnish these affidavits.

                                                     26
¶68.    Iris Moree Hinton's unsworn statement reveals that Puckett was living with Hinton and her husband

at the time he was arrested. She stated that she was concerned that Puckett had been seeing a married

woman with two kids and that defense counsel never asked what she knew of the married woman.

Hinton's unsworn statement does not tell this Court anything else about what Hinton may have known about

the woman she alleges Puckett was seeing.

¶69.    First of all, the unsworn statement does not mention this woman's name. Second, if it is to be

implied that the married woman Hinton is speaking of was Rhonda Griffis, the State correctly points out

that this statement is in direct conflict with Puckett's testimony at trial. Puckett testified that he had only had

sex with Rhonda Griffis once, which he asserts occurred during "the early part of the spring" of 1995. He

also testified that he had nothing more to do with the victim until the day of the murder, October 14, 1995.

The State contends that Hinton's testimony of Puckett seeing a married woman, if in fact it is to be implied

from the unsworn statement that the woman was Rhonda Griffis, would have been contradictory to

Puckett's testimony. Counsel cannot be said to be deficient for not wanting to contradict Puckett's theory

of defense. This Court would then be evaluating a claim of ineffective assistance of counsel for having

called Hinton to testify.

¶70.    As for the rest of Hinton's unsworn statement, Hinton states that Puckett "was best friends with our

grandson Corey." She further states that she would have told the jury about "what a nice boy [Puckett]

was. I would have told the jury about the nice, well mannered young man who lived in my house, cleaned

his room, made his bed, and helped with chores like toting groceries and taking out the trash." Id.

¶71.    Recently, the United States Supreme Court rendered its decision in Wiggins v. Smith, 539 U.S.

510, 123 S.Ct. 2527, 156 L. Ed. 2d 471 (2003). In that case, Wiggins's counsel presented no mitigating

evidence regarding Wiggins's horrible childhood. The Supreme Court determined that counsel's

                                                       27
investigation into Wiggins's background as a youth was not sufficient to make an informed strategic decision

not to present mitigating evidence regarding Wiggins's life as a child. The Court stated:

        In finding that [Wiggins' counsels'] investigation did not meet Strickland's performance
        standards, we emphasize that Strickland does not require counsel to investigate every
        conceivable line of mitigating evidence no matter how unlikely the effort would be to assist
        the defendant at sentencing. Nor does Strickland require defense counsel to present
        mitigating evidence at sentencing in every case. Both conclusions would interfere with the
        'constitutionally protected independence of counsel' at the heart of Strickland. 466 U.S.,
        at 689. We base our conclusion on the much more limited principle that 'strategic choices
        made after less than complete investigation are reasonable' only to the extent that
        'reasonable professional judgments support the limitations on investigations." Id., at 690-
        691. A decision not to investigate thus 'must be directly assessed for reasonableness in all
        circumstances.' Id. at 691.

Wiggins, 123 S.Ct. at 2541.

¶72.    Even if this Court were to accept the unsworn statements of Ainsworth and Hinton, together with

Mary Puckett's affidavit, there has been no showing that defense counsel was ineffective for failing to call

additional witnesses during the sentencing phase. The affidavit and unsworn statements relied upon by

Puckett present nothing more than what would have amounted to cumulative character evidence already

presented by other witnesses, had these people been presented to testify.         Even if it is assumed, for

the sake of argument, that defense counsel should have introduced these witnesses at the sentencing phase,

Puckett has not demonstrated how their testimonies would have resulted in a different outcome.

¶73.    This Court finds that this claim does not pass the standard set forth in Strickland v.

Washington.

                F.      Trial Counsel Failed to Request Funds for an Expert
                        Pathologist.

¶74.    In this final ineffective assistance of counsel claim, Puckett asserts that his counsel should have

secured the resources from the trial court necessary to hire an independent pathologist to review the


                                                    28
evidence or the findings of Dr. Hayne. He claims that testimony concerning the victim's injuries, cause of

death and underlying aggravator(s) was crucial evidence necessary to prove the crime for which he was

indicted. Puckett cites Johnson v. State, 529 So.2d 577, 591-92 (Miss. 1988), for the proposition that

the defense is entitled to all experts reasonably necessary for an effective defense.

¶75.    Again, Puckett's defense was that he did not sexually assault or kill Rhonda Griffis. He never

disputed that Rhonda was killed or sexually assaulted or that the State's Exhibit No. 3 was the murder

weapon. There was never a dispute about the victim's injuries or the manner in which she died, short of

Puckett's contention that he was not the one who killed her. It is difficult to see how a pathologist would

have been useful to Puckett's defense, and Puckett fails to enlighten this Court in that regard.

¶76.    Given Puckett's theory of defense, and the fact that he has now offered nothing more than

undeveloped assertions that a pathologist would have been beneficial, it is not likely that the trial court

would have granted the request for funds to retain an independent pathologist. See Johnson v. State,

529 So.2d at 590-92. Puckett has not demonstrated the need for an independent pathologist. Similarly,

it cannot be said that Puckett's counsel was deficient by failing to request for the funds to hire an

independent pathologist. This issue is without merit.

        VI.     CUMULATIVE EFFECT OF COUNSEL'S FAILURE TO MAKE
                CONTEMPORANEOUS OBJECTIONS DENIED PETITIONER A
                FUNDAMENTALLY FAIR TRIAL.

¶77.    Puckett contends that defense counsel was ineffective for failure to object during several instances

at trial. He maintains that, although each incident may not amount to reversible error alone, the aggregate

of the instances constitutes reversible error.

¶78.    Puckett first asserts that his counsel should have objected to the prosecutor's line of questioning

during cross-examination of Puckett with regards to the Canebrake incident. Puckett does not indicate on

                                                    29
what grounds his defense counsel should have objected or why the prosecutor's line of questioning was

inappropriate. 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

v. State, 635 So.2d 805, 808(Miss. 1997); Foster v. State, 687 So.2d at 1141. Puckett has failed

to do so.

¶79.    Puckett next asserts that his counsel failed to object to the prosecutor's statements made during

testimony of Dr. Michael West. The prosecutor was questioning Dr. West with regards to finding finger

prints on the murder weapon. The prosecutor stated "You don't have to be a police officer to obtain

fingerprints. I can do that." Puckett maintains that his counsel should have objected to the prosecutor's

improperly expressing his personal opinions and ask the court to instruct the jury to disregard the

prosecutor's comments. The transcript contains the following dialogue:

        Q [By Mr. Jones]: Did you make any effort to obtain any kind of fingerprints off that
        stick?

        A [By Dr. West]: Yes, sir.

        Q: What type of effort did you make?

                MR. ADELMAN: Your Honor, this witness hasn't been qualified as a
                fingerprint expert.

                MR. JONES: You don't have to be an expert to be an expert to obtain
                fingerprints. I'm not going to offer any prints in. You don't have to be a
                police officer to obtain prints. I can do that.

                MR. ADLEMAN He's not been qualified that he has any expertise in
                even taking fingerprints.

                MR. JONES: I'm not asking for an opinion on that. I'm just asking if he
                made any effort to obtain fingerprints.




                                                   30
                 THE COURT: Well, let's find out if he did it, and then you may attempt
                 to - -

        Q: Did you? Did you make any effort to obtain finger prints?

        A: Yes, sir.

        Q: Were you able to do so?

        A: No, sir.

¶80.    It is clear from the transcript that Puckett's attorney had objected to Dr. West's qualifications in

lifting latent finger prints. As the State properly points out, no finger print evidence was offered by the State

against Puckett through the testimony of Dr. West or anyone else. Puckett does not allege prejudice, and

it cannot be maintained that Puckett was actually prejudiced by the comment made by the prosecutor. This

claim certainly does not pass the ineffective assistance of counsel standard set forth in Strickland v.

Washington, or its progeny.

¶81.    Third, Puckett asserts that his counsel failed to object to questions regarding burglary. Because

the burglary portion of his indictment was dismissed on the motion of the State, Puckett asserts that any

reference to burglary was highly prejudicial.

¶82.    On direct appeal, Puckett claimed that it was reversible error for the prosecutor to inquire about

Puckett's post-Miranda silence. Puckett, 737 So.2d at 347. Although no objection to that line of

questioning was made by Puckett, this Court did discuss the merits to see if Puckett's fundamental rights

had been violated. Id. at 350. In that discussion on the merits, this Court stated the following:

        ¶ 86. In the case at bar, after being placed under arrest and being read his Miranda
        warnings, Puckett made voluntary statements to his mother as well as to law enforcement
        officials. Specifically, in addition to other statements, Puckett made a comment to the effect
        that "this is a lot of law enforcement for somebody who just committed a burglary." This
        statement is inconsistent with his assertion at trial, that he had hid in the woods because he
        was scared of David Griffis after witnessing Griffis brutally murder his wife. Puckett's
        statement upon his arrest indicated that he was running from the police after committing a
        burglary. However, Puckett's statement at trial indicate that he was running from the police


                                                      31
         because he was afraid of Griffis. Therefore, the prosecutor's questions upon
         cross-examination are admissible under Miss. R. Evid. 613 to show that
         Puckett's prior statements were inconsistent with his statements at trial.

Id. at 351 (emphasis added).

¶83.     This Court has already determined that the questions asked by the prosecutor regarding burglary

were permissible. Puckett is barred from raising the issue again in the form of an ineffective assistance of

counsel claim. "We must caution that other issues which were either presented through direct appeal or

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

under the guise of poor representation by counsel." Foster v. State, 687 So.2d at 1129.

¶84.     Further, without waiving the procedural bar, the issue is without merit. Puckett himself inserted

burglary into his trial while being cross-examined. As part of his defense, Puckett maintained that he was

merely going to burglarize the Griffis home in order to find money to pay his truck note. Puckett, 737

So.2d at 329. It is clear that the references to burglary were not objectionable.

¶85.     Puckett claims that he was denied a fundamentally fair trial due to defense counsel's failure to object

in the aforementioned instances. In Doss v. State, 709 So.2d 369 (Miss. 1996), this Court held that

"[w]here there is no reversible error in any part, .... there is no reversible error to the whole." Id. at 401

(quoting McFee v. State, 511 So.2d 130, 136 (Miss. 1987)). "This Court has held that a murder

conviction or a death sentence can still not warrant a reversal where the cumulative effect of alleged errors,

if any, was procedurally barred." Id. (citing Davis v. State, 660 So.2d 1228, 1256 (Miss. 1995) (See

also Simmons v. State, 805 So.2d 452 (Miss. 2001)). Puckett's claim of cumulative error is without

merit.

         VII.    THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO
                 A CAPITAL OFFENSE WERE NOT INCLUDED IN PUCKETT'S


                                                      32
                INDICTMENT AND THEREFORE HIS DEATH PENALTY MUST
                BE VACATED.


                A.       In Ring v. Arizona, the United States Supreme Court
                         Held That Aggravating Circumstances Function as
                         Elements of the Offense of Capital Murder.

¶86.    Puckett argues that his indictment is unconstitutional for failure to include and specify the

aggravating factors used to sentence him to death. This issue was not raised at trial or on direct appeal and

normally would be procedurally barred. However, Puckett primarily relies on Jones v. United States,

526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153

L.Ed.2d 556 (2002), as intervening decisions which would nullify the procedural bar.

¶87.    In Jones v. United States the United States Supreme Court considered a federal carjacking

statute. The Supreme Court found in Jones that the carjacking statute, which allowed three different

punishments increasing in severity depending on the degree of violence used or physical harm accomplished

by the carjacker, could result in three distinct offenses, all of which had to be charged in the carjacker's

indictment:

        [U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial
        guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases
        the maximum penalty for a crime must be charged in an indictment, submitted to a
        jury, and proven beyond a reasonable doubt.

Jones, 526 U.S. at 243 n.6 (emphasis added).

¶88.    Jones was followed by Apprendi. Apprendi fired several shots into the home of an

African-American family in Vineland, New Jersey. Apprendi was indicted on numerous state charges of

shooting and possession of firearms. He eventually pled guilty to two counts of possession of a firearm for


                                                     33
unlawful purpose and one count of possession of an explosive. After the judge accepted the guilty pleas,

the prosecutor moved for an enhanced sentence on one of the counts on the basis that it was a hate crime.

The judge concurred and rendered an enhanced sentence on twelve years on that particular count, with

shorter concurrent sentences on the other two counts.

¶89.    Relying in part on Jones, Apprendi argued that he was entitled to have the finding on enhancement

decided by a jury. The Supreme Court agreed, stating: "Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. However, the Court specifically

stated that "Apprendi has not here asserted a constitutional claim based on the omission of any reference

to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question

separately today." Apprendi, 530 U.S. at 477 n.3.

¶90.    The Court found in Apprendi that New Jersey's statutory scheme would allow a jury to convict

a defendant of a second degree offense of possession of a prohibited weapon, and then, in a separate

subsequent proceeding, allow a judge to impose a punishment usually reserved for first degree crimes made

on the judge's finding based on a preponderance of the evidence. The Apprendi Court finally stated that

its decision did not apply to capital sentencing cases, even those cases where the judge was the one

deciding whether to sentence the defendant to death or some lesser sentence, citing Walton v. Arizona,

497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511(1990), where the Arizona capital sentencing process

had been upheld.

¶91.    In 2002, the U.S. Supreme Court decided Ring v. Arizona . Ring addressed the issue of

whether the Arizona capital sentencing process as upheld in 1990 in Walton v. Arizona, that of a jury



                                                    34
deciding guilt and a judge making findings on aggravating factors, could survive the Apprendi decision.

The Supreme Court decided it could not. Despite the efforts in Apprendi to distinguish non-capital

enhancement cases from aggravating circumstances in capital cases in this context, the Supreme Court in

Ring found that there was no difference.

        [W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury,
        to find an aggravating circumstance necessary for imposition of the death penalty. See 497
        U.S., at 647-649, 110 S.Ct. 3047. Because Arizona's enumerated aggravating factors
        operate as 'the functional equivalent of an element of a greater offense,' Apprendi, 530
        U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by
        a jury.
                                                   ***
        'The guarantees of jury trial in the Federal and State Constitutions reflect a profound
        judgment about the way in which law should be enforced and justice administered.... If the
        defendant preferred the common-sense judgment of a jury to the more tutored but perhaps
        less sympathetic reaction of the single judge, he was to have it.' Duncan v. Louisiana,
        391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).


        The right to trial by jury guaranteed by the Sixth Amendment would be senselessly
        diminished if it encompassed the fact finding necessary to increase a defendant's sentence
        by two years, but not the fact finding necessary to put him to death. We hold that the Sixth
        Amendment applies to both.

Ring, 536 U.S. at 609.

¶92.    Puckett argues is that because Ring found the Apprendi decision persuasive on the issue of

Arizona's enumerated aggravating factors operating as "the functional equivalent of an element of a greater

offense," the Supreme Court necessarily adopted every other rule stated in Apprendi for state capital

sentencing proceedings, specifically the rule first cited in Jones v. United States, that the Constitution

requires that aggravating factors be listed in indictments. We find this argument is incorrect. Ring only

found that juries must find aggravating factors: "Ring's claim is tightly delineated: He contends only that the

Sixth Amendment required jury findings on the aggravating circumstances asserted against him...." Finally,


                                                      35
Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S. at 477

n.3, 120 S.Ct. 2348 (Fourteenth Amendment "has not ... been construed to include the Fifth Amendment

right to 'presentment or indictment of a Grand Jury' "). Ring, 536 U.S. at 597 n.4.

                 B.      In its Requirement That at Least One Aggravating
                         Circumstance Be Found Before the Death Penalty Can
                         Be Imposed, Mississippi's Capital Sentencing Scheme
                         Is Indistinguishable from the Arizona Scheme Rejected
                         in Ring.

¶93.    Puckett argues: "Although Mississippi's capital sentencing scheme is not identical in all respects to

the Arizona scheme rejected by the United States Supreme Court in Ring, the two schemes are identical

in the respects relevant to this case." This is incorrect. The two sentencing schemes are different in the only

respect relevant to Ring, that of who finds aggravating circumstances that lead to the death sentence.

Under Arizona's scheme, the judge did this, and for this reason Arizona's scheme was found to be

unconstitutional. Under this state's statutory scheme, and in Puckett's case the jury found the aggravating

circumstances. We hold that there is no infirmity under Ring.

                 C.      Capital Murder May Be Charged Only upon an
                         Indictment Alleging All of the Elements of the Crime to
                         Be Proved.

¶94.     Puckett sums up his argument concerning the alleged problems with his indictment by repeating

it here. Puckett cites United States v. Fell, 217 F. Supp.2d 469 (D. Vt. 2002), and United States

v. Lentz, 225 F. Supp.2d 672 (E.D. Va. 2002). In Fell, 217 F. Supp.2d at 483, the court found the

following: "Although the Ring decision explicitly did not discuss whether a defendant was entitled to grand

jury indictment on the facts that, if proven, would justify a sentence of death, see Ring, 536 U.S. at ----

n.4, 122 S.Ct. at 2437 n.4, the clear implication of the decision, resting as squarely as it does on Jones,


                                                     36
is that in a federal capital case the Fifth Amendment right to a grand jury indictment will apply." This is not

a federal capital case, and there is nothing to show that this Fifth Amendment right is applicable to a state

capital case. Lentz makes the same finding, but once again deals with the Federal Death Penalty Act, or

FDPA.

¶95.    Puckett also relies on the United States Supreme Court decision of Allen v. United States, 536

U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). In a memorandum decision, the Supreme Court

stated: "The judgment [in Allen ] is vacated and the case is remanded to the United States Court of

Appeals for the Eighth Circuit for further consideration in light of Ring v. Arizona, 536 U.S. 584, 122

S.Ct. 2428, 153 L.Ed.2d 556 (2002)."

¶96.    One issue raised in Allen was the issue Puckett raises here, that of his indictment being defective

because it did not contain the aggravating factors. The Eighth Circuit in Allen found that Allen's federal

court indictment was not defective even though it did not contain the aggravating factors. If this is the basis

on which Allen was vacated, it seems odd to cite Ring v. Arizona to do it. The question of what an

indictment must contain in a state capital case was not before the Ring Court.

¶97.    In Apprendi , the Supreme Court stated that the Fifth Amendment right to indictment had never

been applied to the states through the Fourteenth Amendment. Absent more explicit direction, we find that

the Supreme Court has not ruled that state capital defendants have a constitutional right to have all

aggravating circumstances listed in their indictments. We find that this issue is without merit. Simmons v.

State, 869 So. 2d 995, 1010-11 (Miss. 2004).

        VIII. THE AVOIDING ARREST AGGRAVATING FACTOR WAS
              INAPPROPRIATE IN THIS CASE AND IT WAS FUNDAMENTAL
              ERROR TO PRESENT IT TO THE SENTENCING JURY FOR



                                                      37
                 CONSIDERATION FOR THE IMPOSITION OF A SENTENCE OF
                 DEATH.

¶98.    Puckett argues that there was no evidence to support the aggravating factor of avoiding arrest and

that the trial court erred in allowing the jury to consider the aggravating factor. This issue was fully

addressed on direct appeal. Puckett, 737 So.2d at 361-62. This Court pointed out that there was

credible evidence upon which the jury could find that Puckett murdered Rhonda in an effort to avoid

apprehension and, accordingly, the trial court did not err in allowing it to be considered by the jury. Id.

at 362. Therefore, this claim is res judicata and cannot be relitigated in Puckett's application for post-

conviction relief. Miss. Code Ann. § 99-39-21(3); Wiley, 750 So.2d at 1200. Puckett is entitled to no

relief on this claim.

        IX.      FAILURE TO INSTRUCT THE SENTENCING JURY ON THE
                 AVOIDING ARREST AGGRAVATOR RESULTED IN A
                 FUNDAMENTALLY UNFAIR SENTENCING.

¶99.    Puckett contends that he is entitled to have his sentence vacated and a new sentencing hearing held

because the trial court failed to instruct the jury on what constitutes avoiding or preventing a lawful arrest

or affecting an escape from custody. First, this issue was capable of being raised on direct appeal and is

now procedurally barred from being considered for the first time in Puckett's post-conviction application.

Miss. Code Ann. § 99-39-21(1).

¶100. Without waiving the procedural bar, this claim is also without merit. As the State properly argues,

this Court has held that no limiting instruction is needed for the avoiding arrest aggravating circumstance.

"This Court has recently held that it was unnecessary to have a limiting instruction defining 'avoiding arrest'

to narrow the aggravator if the evidence reasonably inferred that avoiding arrest was a substantial reason

for the killing." Brown v. State, 682 So.2d 340, 355 (Miss. 1996).


                                                      38
¶101. As was just discussed in Puckett's previous claim, this Court held that there was sufficient evidence

upon which the jury could find that Puckett killed Rhonda in an effort to avoid detection. Puckett, 737

So.2d at 362. "Accordingly, the trial court's granting of this instruction was not reversible error." Id.

Puckett's claim that the instruction on the avoiding arrest aggravator was flawed because it did not define

"avoiding or preventing a lawful arrest" is without merit. See Brown, 682 So. 2d at 355.

        X.      PUCKETT ASSERTS THAT HIS DEATH SENTENCE WAS
                DISPROPORTIONATELY IMPOSED.

¶102. In Puckett’s direct appeal we stated:

        In accordance with Miss. Code Ann.§ 99-19-105(3)(c) (1994), this Court must determine
        whether the death sentence in this case 'is excessive or disproportionate to the penalty
        imposed in similar cases, considering both the crime and the defendant.' When the
        sentence is disproportionate, this Court may 'set the sentence aside and remand the case
        for modification of the sentence of life imprisonment.

Puckett, 737 So.2d at 364.

¶103. Puckett argues that the Court's reliance upon cases listed in its holding as being factually similar

under its proportionality review is misplaced and fails to consider the mandate contained in the intervening

holding in Ring and also, the holdings in Apprendi, Randall and White. On direct appeal, this Court

found that the case of Blue v. State, 674 So.2d 1184 (Miss. 1996)6 was useful in addressing wether

Puckett's death sentence was excessive or disproportionate. Puckett, 737 So.2d at 364. This Court held

that "the death sentence is not disproportionate as applied to Puckett." Id.




        6
           Blue v. State, 674 So.2d 1184 (Miss. 1996) was overruled by this Court in King v. State,
784 So.2d 884 (Miss. 2001), which held that an instruction that sympathy could play "no part" in jury's
deliberations was reversible error. Puckett does not raise issue with Blue having been overruled on an
unrelated issue.

                                                    39
¶104. Puckett argues that Blue is distinguishable from the instant case because the defendant, David

Blue, admitted to the crime, "[c]ommitted random acts of violence, beat, killed, robbed and after the

victim's death engaged in sexual battery." Blue was indicted in the Leflore County Circuit Court for the

commission of capital murder during the course of the sexual battery and armed robbery of Mary Turntine.

Blue, 674 So. 2d at 1192. Blue was seventeen at the time of his arrest. Id. The jury returned a sentence

of the death penalty upon Blue.

¶105. Here, Puckett was charged with capital murder during the course of sexual battery. He testified

that it was his intent to commit a burglary in the victims home. Puckett was eighteen at the time of the

murder. The jury imposed the death penalty upon Puckett. This Court did not err in relying on Blue when

addressing whether Puckett's death sentence was excessive or disproportionate.

¶106. Puckett's reliance onRing v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002),

and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) as intervening

cases to overcome the procedural bar is misplaced. The Supreme Court held in Ring that only a jury may

find an aggravating circumstance necessary for the imposition of the death penalty. The Supreme Court held

in Apprendi that any fact, other than a previous conviction, that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Neither case changes or expands the law on proportionality. The issue was considered on direct appeal

and is barred by res judicata at the post-conviction level.

        XI.     PUCKETT WAS DENIED HIS RIGHTS GUARANTEED BY THE
                FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO
                THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO
                THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL
                TRIAL.



                                                    40
¶107. Puckett asserts that the cumulative effect of errors committed at trial denied him a fair trial. Puckett

is not entitled to a perfect trial, only a fair trial. McGilberry v. State, 843 So.2d 21, 33 (Miss. 2003),

citing Sand v. State, 467 So.2d 907, 911 (Miss. 1985). Puckett cannot support an assertion that he has

been denied a fair trial.

¶108. This Court may reverse a conviction and/or sentence based upon the cumulative effect of errors

that otherwise do not independently require a reversal. Jenkins v. State, 607 So.2d 1171, 1183-84

(Miss.1992); Hansen v. State, 592 So.2d 114, 153 (Miss. 1991). "It is true that in capital cases,

although no error, standing alone, requires reversal, the aggregate effect of various errors may create an

atmosphere of bias, passion and prejudice that they effectively deny the defendant a fundamentally fair trial."

Conner v. State, 632 So.2d 1239, 1278 (Miss. 1993) (citing Woodward v. State, 533 So.2d 418,

432 (Miss. 1988)).

¶109. We find that a review of the record, the briefs, and the arguments reveals that there were no

individual errors which required reversal and thus there is no aggregate collection of minor errors that

would, as a whole, mandate a reversal of either Puckett's conviction or his sentence. This issue is therefore

without merit.

        XII.     COUNSEL WAS INEFFECTIVE FOR NOT PROPERLY ARGUING
                 TO THE TRIAL COURT THE "MOTION FOR DISCOVERY OF
                 EVIDENCE PRESENTED TO THE GRAND JURY IN THIS CASE"
                 AND NOT BEING AWARE OF THE CONTROLLING STATE
                 AUTHORITY ON THIS ISSUE.

¶110. Puckett's defense counsel filed a motion with the trial court seeking to obtain grand jury evidence

and testimony. The trial court denied the motion. Puckett argues that his counsel was ineffective for failing

to cite two cases, which Puckett asserts would have resulted in the motion being granted. Those two case

are Addkison v. State, 608 So.2d 304 (Miss. 1992) and Ballenger v. State, 667 So.2d 1242 (Miss.

                                                     41
1995). Puckett claims that his "counsel was ineffective in not being aware of two Mississippi cases that

addressed this issues . . . ."

¶111. The State concedes that Puckett is correct in stating that Addkison does allow discovery of grand

jury testimony by a defendant. In Addkison, we stated:

        The period during which there is prohibition and a criminal sanction for disclosure of grand
        jury proceedings expires upon the arrest, admission to bail or recognizance of the accused.
        Miss.Code Ann. § 97-9-53 (1972): Miss.Unif.Cr.Rules of Cir.Ct.Rule 2.04. Both Rule
        4.06(a)(1) and Rule 4.09 contemplate that grand jury testimony given by witnesses to be
        used by the state is available to the defendant in discovery. Since the trial of this case, Rule
        4.06 has been amended to make clear that defendants are entitled to "any statement,
        written, recorded or otherwise preserved" and "the substance of any oral statement" given
        by any witness to be offered by the prosecution at trial. Rule 4.06(a)(1). This includes
        grand jury testimony.

Addkison, 608 So.2d at 313.

¶112. The State also correctly points out that Ballenger holds that it is not reversible error to deny such

a pretrial motion. Ballenger, 677 So.2d at 1251. In Ballenger, this Court stated:

¶113. Even though the trial court denied Ballenger's over broad motion she was not denied
      access to the that evidence presented to the grand jury to which she was entitled. The trial
      court granted another motion made by Ballenger in which she requested, among other
      things, copies of all written and/or oral statements made by any person the prosecution
      intended to call at trial or who had given recorded and/or oral statements to the
      prosecution or police. This would encompass the grand jury testimony given by any
      witness that the prosecution intended to call at trial. When the trial court granted this
      motion the rule set out in Addkison was satisfied.


Id.

¶114. Puckett's counsel filed the following motions: Motion to Require the Prosecution to Disclose

Favorable Evidence to Defendant; Motion for Discovery of Information Regarding State Experts; and

Motion for Court to Conduct In Camera Inspection of the District Attorney's File by the Court for all

Exculpatory Material Favorable to the Defendant, Larry Matthew Puckett. The trial court granted all of

                                                      42
these motions. Additionally, the record reveals that the State filed and produced to Puckett a document

entitled "Substance of Oral Interviews With Potential Witness", which contains the names of thirty-one

potential witness who could have been called to testify during trial. The list indicates what the witness

would likely testify to, whether the witness has provided a written statement or had testified previously.

The list indicates that the defense had in its possession all prior testimonies, reports and written statements

by these witnesses.

¶115. Even if this Court assumes, for the sake of argument, that defense counsel was deficient as Puckett

claims, Puckett is unable to show that he was prejudiced. This issues does not pass the standard set forth

in Strickland v. Washington, and no relief is warranted.

        XIII. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
              OBJECT TO OFFICER MICHAEL RIELS'S BLATANT PERJURY
              AT TRIAL.

¶116. This claim centers around the testimony of Officer Mike Riels of the Forrest County Sheriff's Office.

Puckett claims that trial counsel was ineffective in failing to object to Officer Riels's testimony regarding a

custom painted tag displayed in the window of Puckett's truck.

¶117. To understand Puckett's argument it is necessary to begin with a pretrial motion filed by the State,

by which the State sought to determine the admissibility of prior bad acts of the defendant pursuant to

M.R.E. 404(b). Particularly, the State wanted to introduce a custom painted car tag which read "one high

toned son-of-a-bitch." Attached as "Exhibit-A" to the State's motion was an affidavit of Russell Moore,

which stated:

        During early to mid 1995, I was employed as manager of Big K Quick Stop on Highway
        49 North in Hattiesburg, Mississippi. During that time, Matthew Puckett was an employee
        of Big K. Matthew Puckett discussed with me the Stephen King movie 'The Dark Half".
        The movie was about a writer who had two personalities, one being a good guy and one
        being a bad guy. The dark half of his personality was known as George Stark, who was

                                                     43
        the bad guy and who had brutally killed an elderly man by beating him to death with his
        artificial leg. George Stark, the dark half, drove a vehicle that had lettering on the rear that
        read "one high toned son-of-a-bitch" when he was acting out his evil personality. Puckett
        told me he liked George Stark, the bad guy in the movie. Shortly after the discussion
        about the movie, Matt Puckett came to work with a tag on the front of his truck which
        read "one high toned son-of-a-bitch". Matt Puckett was proud of the tag and I advised
        him to remove it because it might be offensive to the management and public.

¶118. The State asserted in its motion that Puckett's acts were not being offered to prove his character

but to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident for the alleged crime. The trial judge took the motion under advisement.

¶119. At trial, Officer Riels gave the following testimony:

                Q. [Prosecutor] Did you look at the outside of the truck on that
                occasion?

                A. [Officer Riels] Yes, sir.

                Q. Describe what you saw.

                A. It was a dull blue. It had a roll bar. I believe it was a black roll bar.
                It had an antenna on the back. It may have had two, but I believe one CB
                aerial antenna. And in the back of the back glass it had a personalized,
                what I would call a personalized tag that was an airbrush type you'd buy
                at the mall or something, a tag that was in the back glass.

                Q. and what type tag was that?

                MR. ADELMAN: I'm going to object. Can we approach the bench?

                THE COURT: Yes. Note for the record we're having a bench
                conference.

¶120. The dialogue of the bench conference is as follows:

                MR. JONES: I want him to identify what it was.

                MR. ADELMAN: He's going into the whole business about the --

                THE COURT: Doing what?


                                                      44
                MR. ADELMAN: I just want to make sure that it's not going into the - -

                THE COURT: movie?

                MR. ADELMAN: - - The movie.

                MR. JONES: I'm not going into the movie.

                THE COURT: All right

¶121. The testimony of Officer Riels continued:

                Q. Describe what was on that tag in that back windshield.

                A. The tag had "Time Bomb" wrote on it.


¶122. First the matter of perjured testimony is not properly addressed by way of an objection as Puckett

would have it. The proper way to address Officer Riels testimony, if it was in fact perjured, would have

been through cross-examination and/or impeachment, which is what the record reveals defense counsel did.

The record clearly shows that Mr. Adelman was not remiss in his cross-examination of Officer Riels.

        Q. [MR. ADELMAN] Do you know whether or not the vehicle was ever turned over to
        the Crime Lab for examination?

        A. [Officer Riels] No, sir. The most that I know is it was taken to our service center.

        Q. I see. And eventually it was returned to Mr. Puckett's family; is that correct?

        A. I believe so.

        Q. And this alleged tag - - no one ever took this alleged tag off the vehicle, is that correct?

        A. I didn't. I can't answer for anybody else. I don't know who took it off; I didn't.
        Q. So as far as - -

        A. I saw the tag on the side of the road on the vehicle. I had been told that that was a CB
        handle that the Defendant went by.

        Q. Who told you that?


                                                     45
        A. I believe it was Corey McLain. I believe. I'm really unsure. It may have been one of
        the other officers who heard it from Corey McLain.

        Q. So this is something you heard. And you're sure - -

        A. I had heard - - whenever I saw the vehicle, I saw the tag, once I saw the tag, I knew
        exactly whose it was because I was told that that was a CB handle that he could go by.

                                                   ***
        A. I was told whenever we were doing the investigation, in looking for the Defendant, that
        he may possibly go by a CB handle "Time Bomb" on the CB radio, to any unit that may
        have a CB radio, to be listening for it. Then that night, whenever the vehicle was found,
        I saw the tag on the back of the truck, and I knew right then whose truck it was because
        I knew whose handle it was on the CB.

        Q. And you're sure there was a tag, and you're not confusing that with what someone else
        told you?

        A. No, sir; I'm sure it was a tag. I saw the tag, and I knew right then, you know, that's
        his CB handle. I pointed at the tag; I say to my self, that's his CB handle there.

¶123. Puckett later testified on his own behalf and he was able to address the issue concerning this tag.

        Q. [MR. ADELMAN] Okay. Now you've got a blue pickup, correct?

        A. [PUCKETT] Yes, sir.

        Q. And on the back of it you had this insignia that said "Time Bomb," didn't you?

        A. No, sir.

        Q. Did you have a CB handle that said Time Bomb?

        A. I have a CB handle, yes, sir.

        Q. And it says Time Bomb; that's your handle, isn't it ?

        A. Yes, sir.

        Q. As a matter of fact, that's your nickname, isn't it?

        A. Not really a nickname. It was just a -



                                                    46
        Q. Well, your friends call you by Time Bomb, don't they?

        A. No, sir. My friends call me Matt.

        Q. Well, is it a nickname? Are you called by Time Bomb?

        A. Just a CB handle.

        Q. All right. Why did you pick a CB handle of Time Bomb?

        A. I don't know. Corey gave it to me.

        THE COURT: What's that?

        THE WITNESS: My friend Corey gave it to me.

        Q. Well, what's the significance of it?

        A. I don't know.

        Q. You don't have any idea? Corey gave it to you?

        A. Yes, sir.

¶124. Puckett makes no suggestion as to what his counsel should have done differently other than to

object to Officer Riels's testimony. It is clear from the record that Mr. Adelman objected at the first hint

of any statement regarding the tag and its reference to the Stephen King movie, The Dark Half. It is also

clear from the record that Mr. Adelman attempted to impeach Officer Riels's testimony during cross-

examination. It is not logical that Mr. Adelman would have attempted to impeach Officer Riels by means

that would have opened the door to evidence of the "one high toned son-of-a-bitch" tag, which Puckett had

so fervently attempted to keep out of court.

¶125. Puckett has failed to show that his counsel's performance was deficient and does not pass the first

prong of Strickland v. Washington. Therefore, Puckett is not entitled to relief on this claim.




                                                    47
        XIV. TRIAL COUNSEL WAS INEFFECTIVE FOR PREPARING THE
             JURY IN OPENING STATEMENTS TO HEAR EVIDENCE AND
             THEN NOT PRODUCING THAT EVIDENCE OF A SLOPPY AND
             INADEQUATE POLICE INVESTIGATION THEREBY NOT
             PUTTING ON AN ADEQUATE DEFENSE.

¶126. Puckett claims that he was denied effective assistance of counsel because Adelman told the jury

in his opening statement that they would hear evidence of a sloppy police investigation, yet failed to present

evidence of sloppy police work at trial. Puckett also contends that his counsel failed to secure a blood

splatter expert and introduce blood splatter evidence.

¶127. When reviewing Adelman's opening statement, there is only one specific reference to "sloppy

investigation."

        I think earlier on you heard a list of witnesses. I think you'll find that most of the witnesses
        that have been listed are investigators, police officers, people who may have gone out to
        the Griffis residence. They have the whole array of these investigative officers, as well as
        the Mississippi Crime Lab. You heard reference to fingerprints. They have the
        opportunity to have all of these tests, whether it be for semen, fingerprints, blood, hair, all
        of these. They can go out and have all of theses test. And whether or not you come to the
        conclusion that you think that this was a world class investigation or a sloppy
        investigation, but whatever conclusion you come to, the fact of the matter is that when
        you look at the evidence, there's going to be mighty little evidence.

¶128. The transcript belies Puckett's assertion that Adelman told the jury that they would hear evidence

regarding a sloppy police investigation. The transcript clearly shows that Adelman was telling the jury that

the State of Mississippi had little evidence against Puckett despite its seemingly endless resources and

opportunity.

¶129. Because Adelman clearly made no promise to the jury regarding evidence of a sloppy investigation,

Puckett's assertion that Adelman was ineffective for failing to produce such evidence fails.

¶130. Adelman also promised the jury they would hear testimony that a cleaning service was called the

next morning by the victim's family to come clean the residence.


                                                      48
        The State had every opportunity. As far as securing the Crime Lab, you'll hear evidence
        that rather- - I'm sorry, the crime scene. You'll hear evidence that rather than secure the
        crime scene, that Service Master was called the next morning by the victim's family to
        come clean the residence, to remove any blood, to eliminate. The crime scene was
        anything but secure.

¶131. Adelman was true to his word when he told the jury during opening statements that they would hear

evidence that Service Master came the next day to clean the crime scene. During cross-examination of

David Griffis, the following dialogue occurred:

        Q. [Mr. Adelman] Is it correct that the trailer was cleaned the very next day?

        A. [David Griffis] I don't believe so.

        Q. You don't believe it was?

        A. I don't believe it was cleaned the next day.

        Q. Is it correct that Service Master cleaned th trailer?

        A. Yes

        Q. Do you know who called Service Master?

        A. My brother called them.

        Q. But you don't know when it was cleaned.

        A. I don't know when it was cleaned.

        Q. Do you know whether or not law enforcement approved of the trailer being cleaned?

        A. I am sure that they did. I dis not have anything to do with that.

¶132. Puckett asserts that Richard Storey, an employee of Service Master, was interviewed by the

defense, and it was learned that Storey observed a bloody knife in the kitchen sink at the Griffis home.

Puckett asserts that the police investigators overlooked this evidence. Puckett alleges that his counsel was




                                                    49
ineffective for not calling Storey to testify because his testimony would have further shown the police

investigation to be sloppy and would have created reasonable doubt in the jurors' minds.

¶133. First of all, Puckett has not supplied an affidavit from Storey or any other proof as to what Storey

would have testified to in support of Puckett's allegations. Puckett does provide a self-serving hearsay

affidavit which states, in part: "I had no knowledge about this [Mr. Story] until May of 2003 when Van

Williams told me about him. I asked my mother about this and she verified it to me." Second, the State is

correct in that the record does contain a subpoena issued for Storey, but there is no return of service.

¶134. At trial, Officer Danny Rigel, Director of the Metro Crime Scene Unit, testified that the crime scene

investigators finished processing the crime scene later in the evening on the same day as the murder.

Additionally, Officer Rigel testified as follows:

           Whenever we finish a crime scene, we have a debriefing, more or less, with everybody
           that's there -- the investigators, the crime scene techs, and anybody else that has anything
           to do with the crime scene just to see if -- you know, check each other out just to make
           sure we didn't miss anything, and there was all -- there was nothing else to get. Plus, the
           family and the children and all, they had to get there clothes and they wanted to clean up
           the mess, I mean, so they wouldn't have to look at it.

Puckett's contention that Adelman rendered ineffective assistance is without merit.

¶135. Under the heading of this same claim, Puckett also asserts that, because Adelman's opening

statement addressed how unlikely it would be for Puckett to have beaten Rhonda Griffis to death at close

range and not have his clothes covered in blood, Adelman should have sought to procure a blood splatter

expert " . . . to explain to the jury how a murder of this nature would leave the assailant covered in blood

. . . ."

¶136. As the State points out, the record is replete with evidence regarding the presence of blood splatter

in the victim's home. The evidence of this nature was given by testimony from Forrest County Sheriff's



                                                       50
Deputies and a detective from the Hattiesburg Police Department, testimony from Jeffery Byrd of the

Mississippi Crime Scene Unit, and photographs and video tape of the crime scene depicting blood splatter

on the walls. On cross-examination by Adelman, Lora Herff Aria, a forensic scientist with the Crime Lab,

testified that her test results on the coveralls Puckett was wearing contained only deer blood stains and one

other stain that contained human protein but was unable to be confirmed as blood.

¶137. As the State properly points out, Adelman did not fail to use the evidence presented at trial

regarding the blood splatter at the crime scene and the absence of the victim's blood on Puckett's coveralls

when Adelman delivered his closing argument to the jury. The argument, in part, is as follows:

        The state of Mississippi is the one that had them examined. And you heard the testimony
        of Ms. Aria, the lady from the Crime Lab. There was no blood on those coveralls, other
        than deer blood and some traces of human protein, which could be anything, anything that
        a human being might produce in the way of protein.
                                                   ***
        You saw the fact that there were blood splatterings. There were blood splatterings behind
        the couch and to the left of the couch, but there were no blood splatterings on those
        coveralls. And the State clearly made the implication that there was something that the --
        that somehow the coveralls -- that the Defendant really wasn't in the coveralls, but they put
        in the picture, and you heard in opening statement about the blue jeans and the shirt, the
        dark shirt. I think it has a Harley Davidson insignia on it. There was never any evidence
        that there was any blood on those clothes.

        You saw Dr. West, and when Dr. West -- when he had Mr. Jones, and he was using Mr.
        Jones as his object, and he had Mr. Jones -- remember, he was behind Mr. Jones. And
        so the implications, the argument that there was no blood splattering on my client's clothing
        because he was in front of Rhonda Griffis is totally contradicted by the scenario of Dr.
        West, who came off the stand and grabbed Mr. Jones from behind.

¶138. It is difficult to imagine what a blood splatter expert could have added to this case that was different

from what Adelman pulled together for the jury, considering the evidence that was presented in this case.

Puckett has not demonstrated that defense counsel was deficient for not obtaining such an expert, nor had




                                                     51
Puckett demonstrated that the outcome of this trial would have been different. Puckett's ineffective

assistance of counsel claim does not pass the standard set forth in Strickland v. Washington.

        XV.      PETITIONER WAS DENIED ACCESS TO COUNSEL DURING A
                 CRITICAL STAGE OF HIS TRIAL.

¶139. In his final claim, Puckett asserts that he was denied access to defense counsel during a critical

stage of his trial. As mentioned before, Puckett testified at trial on his own behalf. After cross-examination

of Puckett by the State had begun, the trial court took a brief recess and instructed Puckett not to discuss

his testimony with anyone including his counsel.

¶140. Although this issue was capable of being raised at trial, no objection was taken to the trial court's

instruction. This issue is therefore, procedurally barred for the first time in Puckett's application for post-

conviction relief. Miss code Ann. § 99-39-21(1).

¶141. Without waiving the procedural bar, Puckett's claim is without merit. The United States Supreme

Court has held "that the Federal Constitution does not compel every trial judge to allow the defendant to

consult with his lawyer while his testimony is in progress if the judge decides that there is good reason to

interrupt the trial for a few minutes." Perry v. Leeke, 488 U.S. 272, 284-85, 109 S. Ct. 594, 102 L. Ed.

2d 624 (1989). The United States Supreme Court stated:

        We are persuaded, however, that the underlying question whether petitioner had a
        constitutional right to confer with his attorney during the 15-minute break in his
        testimony--a question that we carefully preserved in Geders--was correctly resolved by
        the South Carolina Supreme Court. Admittedly, the line between the facts of Geders and
        the facts of this case is a thin one. It is, however, a line of constitutional dimension.
        Moreover, contrary to the views expressed by the dissenting member of the South
        Carolina Supreme Court, see n. 1, supra, it is not one that rests on an assumption that trial
        counsel will engage in unethical "coaching."

        The distinction rests instead on the fact that when a defendant becomes a witness, he has
        no constitutional right to consult with his lawyer while he is testifying. He has an absolute


                                                      52
        right to such consultation before he begins to testify, but neither he nor his lawyer has a
        right to have the testimony interrupted in order to give him the benefit of counsel's advice.

        The reason for the rule is one that applies to all witnesses--not just defendants. It is a
        common practice for a judge to instruct a witness not to discuss his or her testimony with
        third parties until the trial is completed. Such nondiscussion orders are a corollary of the
        broader rule that witnesses may be sequestered to lessen the danger that their testimony
        will be influenced by hearing what other witnesses have to say, and to increase the
        likelihood that they will confine themselves to truthful statements based on their own
        recollections. The defendant's constitutional right to confront the witnesses against him
        immunizes him from such physical sequestration. Nevertheless, when he assumes the role
        of a witness, the rules that generally apply to other witnesses--rules that serve the
        truth-seeking function of the trial--are generally applicable to him as well. Accordingly, it
        is entirely appropriate for a trial judge to decide, after listening to the direct examination
        of any witness, whether the defendant or a nondefendant, that cross-examination is more
        likely to elicit truthful responses if it goes forward without allowing the witness an
        opportunity to consult with third parties, including his or her lawyer.

Perry, 488 U.S. at 280-82.

¶142. The brief recess that occurred in Perry happened after direct examination and before cross-

examination began. Puckett asserts that because the recess in the instant case occurred in the middle of

cross-examination, the meaning of Perry is distinguishable. This assertion is without merit. Perhaps the

need to prevent discussion between the defendant and his counsel would increase once cross-examination

has begun because at that point, the defendant and his counsel would be aware of the direction the cross-

examination has taken.

¶143. Puckett also relies on this Court’s ruling in Pendergraft v. State, 191 So.2d 830 (Miss. 1966)

to support his claim that he was denied counsel at a crucial stage of the proceedings. In Pendergraft,

the trial court recessed for two hours at the conclusion of direct examination of the defendant and instructed

the defendant not to converse with counsel. This Court held that instruction to be reversible error stating:

        Did the trial court's instruction to the defendant and to her attorney not to converse during
        a two-hour recess of the court, immediately following the defendant's direct testimony in
        her own behalf, violate the defendant's constitutional right to the assistance of counsel as

                                                     53
          provided by the above-quoted Sixth Amendment to the United States Constitution? 21
          Am.Jur.2d Criminal Law section 313 (1965) states the general rule to be:

          In construing constitutional provisions relating to the right of an accused person to counsel,
          most courts have expressed the view that the right extends to every stage of the
          prosecution. And it is said that the right to assistance in preparing for trial is equal to the
          right to assistance during the trial itself. Accordingly, in addition to the right to
          representation during the course of his trial, an accused is generally entitled to be assisted
          by counsel * * *21 Am.Jur.2d at 339-340.

          It may be safely said that at this time in our jurisprudence there is no question of
          constitutional law more firmly established than the oft-enunciated principle that in the trial
          of criminal cases in the federal, as well as the state courts, the defendant is entitled to have
          the guilding hand of counsel at every stage of the proceeding. The trial is, of course, a stage
          of the proceeding of vital importance to the accused. The right to an attorney extends
          throughout the trial and to every stage of the proceeding. We need not look to the specific
          prejudice that resulted to the defendant as the result of the two-hour court-imposed
          restriction of consultation between the accused and her attorney. This particular phase of
          the trial is so critical that we do not attempt to envision a particular prejudice such as an
          overlooked fact, further discussions of strategy, or whether it be merely reassurance to the
          defendant. We deem it reversible error that the right of consultation granted by the
          Constitution was denied.

Pendergraft, 191 So.2d at 833.

¶144. There are two important aspects of the Pendergraft case to be considered. First, Pendergraft

was decided in 1966, a little over twenty-two years before the United States Supreme Court's decision

in Perry. Second, the recess in Pendergraft was a two-hour delay, where in Perry, the delay was

fifteen minutes.

¶145. The United States Supreme Court stated that its decision in Perry did not mean that trial judges

must forbid consultation between a defendant and his counsel during such brief recesses. Perry, 488 U.S.

at 284.

          Our conclusion does not mean that trial judges must forbid consultation between a
          defendant and his counsel during such brief recesses. As a matter of discretion in individual
          cases, or of practice for individual trial judges, or indeed, as a matter of law in some
          States, it may well be appropriate to permit such consultation. We merely hold that the

                                                        54
        Federal Constitution does not compel every trial judge to allow the defendant to consult
        with his lawyer while his testimony is in progress if the judge decides that there is a good
        reason to interrupt the trial for a few minutes.

Id. at 284-85.

¶146. Puckett argues that the record does not indicate how long the break was for. He also does not

make an assertion that it was anything but a "brief" recess. The record in this case does give insight to the

recess being one relatively brief in nature as apposed to a two hour delay. The record in the instant case

contains the following statement by the trial court:

        THE COURT: Ladies and Gentlemen of the jury, while I hesitate to break the continuity
        of the examination, when we were with counsel in chambers on other matters, it developed
        that this may be the appropriate time for you to take a recess. In addition to that, we've
        been informed by the Bailiff that some of you need to -- that being the case, we're going
        to let you retire to the --it's not polite, and I apologize. But I'm trying to explain to you
        why we're stopping in the middle of the testimony. It was your idea, as I understand. But
        be that as it may, we're going to lt you recess. Let me caution you that during this recess
        you're not to discuss this case among yourselves.

        Now, technically, Mr. Puckett, you're on the stand as a witness, and during this recess
        you may not discuss your testimony with anyone. Okay. Let's let the jury exit.

¶147. This issue is procedurally barred, and Puckett has not made a showing of cause and actual

prejudice requiring relief from the waiver. Miss. Code Ann. § 99-39-21(1)

                                            CONCLUSION

¶148. For these reasons, we deny the petition for post-conviction relief filed by Larry Matthew Puckett.

¶149. LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

    WALLER AND COBB, P.JJ.,EASLEY, CARLSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, GRAVES AND DICKINSON, JJ., NOT PARTICIPATING.




                                                       55
