                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-DR-01689-SCT

CALEB CORROTHERS a/k/a CALEB
CARROTHERS a/k/a CALBE CAROTHER a/k/a
CALEB L. CARROTHERS a/k/a CALEB
COROTHERS a/k/a CALAB CAROTHERS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        05/20/2011
TRIAL JUDGE:                             HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:               LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF CAPITAL POST-CONVICTION
                                         COUNSEL
                                         BY: LOUWLYNN VANZETTA WILLIAMS
                                             DELLWYN K. SMITH
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: BRAD ALAN SMITH
NATURE OF THE CASE:                      CIVIL - DEATH PENALTY - POST
                                         CONVICTION
DISPOSITION:                             LEAVE TO SEEK POST-CONVICTION
                                         RELIEF GRANTED IN PART AND DENIED
                                         IN PART - 02/02/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      MAXWELL, JUSTICE, FOR THE COURT:

¶1.   Caleb Corrothers was convicted of two counts of capital murder and one count of

aggravated assault. For the two capital-murder convictions, he received the death penalty.
Corrothers appealed, and this Court affirmed his conviction and death sentence.1 Corrothers

now petitions this Court for permission to proceed in the trial court with a motion for post-

conviction relief (PCR)—citing ten violations of his constitutional rights.

¶2.    To be granted leave, Corrothers must present claims that are both procedurally alive

and substantially show the denial of a state or federal right.2 For nine of Corrothers’s ten

claims, we find Corrothers failed to meet this standard. But for Corrothers’s claim of juror

bias through improper contact, we find further proceedings in the trial court are necessary.3

Thus, we grant him leave to proceed in the trial court on this issue only. We deny the rest

of his petition.

                        Background Facts and Procedural History

       I.       Deadly Attack on Clark Family

¶3.    Taylor Clark was known to sell marijuana occasionally. On the night of July 11,

2009, Taylor went to the home of his dealer’s girlfriend, Karen Hickinbottom, to return the

dealer’s cell phone. While Taylor was there, a man showed up and asked to talk to Taylor.

Taylor went outside with him. When Taylor came back inside, he said the man had wanted

to buy drugs. The man came to Hickinbottom’s door and asked to speak to Taylor again.

Taylor and the man then left in Taylor’s car.




       1
           Corrothers v. State, 148 So. 3d 278 (Miss. 2014) (Corrothers I).
       2
           Miss. Code Ann. § 99-39-27(5) (Rev. 2015).
       3
           Miss. Code Ann. § 99-38-27(7)(b).

                                                2
¶4.    At approximately 11:00 p.m., Taylor drove to his family’s home, jumped out of the

car, and ran into the house. Taylor’s brother Joshua Clark saw an armed man emerge from

the passenger side of Taylor’s car and chase Taylor toward the house. Taylor was screaming

to wake his parents, Frank and Tonya Clark. Frank ran to Taylor’s aid. And they both held

the door shut to keep the man out of the house. The man, however, shot through the door,

striking and killing Frank. The man then entered the house and shot Tonya twice, but she

survived. Taylor attempted to subdue the man. The man shot Taylor too, killing him.

¶5.    The man threatened both Joshua and Tonya and demanded money and car keys.

Tonya gave the man $50 and the keys to Taylor’s car. The man left in Taylor’s car, turning

down a dead-end road. Tonya called 911. When police arrived, they found Taylor’s car

abandoned. Police searched the area but did not find the suspect.

       II.    Investigation and Arrest

¶6.    Early the next morning, a walker came into contact with a shirtless man who appeared

to be lost. The man claimed he had been attacked and asked for directions to the highway.

Soon after, the shirtless man entered a gas station. The attendant noticed the man was

covered in scratches. The man told the attendant he had been attacked by six people and

needed to use the phone. The man made two phone calls but could not reach anyone. He

then purchased several items and left.

¶7.    The gas-station security camera captured the exchange. Using the security-camera

footage, police identified the shirtless man as Caleb Corrothers.      Police compiled a

six-person photo lineup, which they showed Tonya and Joshua five days after the crime,



                                            3
during Taylor and Frank’s visitation. Tonya could not identify the attacker. But Joshua

identified Corrothers as the person who killed Taylor and Frank. A warrant was issued for

Corrothers’s arrest, and he turned himself in to the police.

¶8.    Corrothers denied any involvement in the murders. But he did admit that he had

bought marijuana from Taylor in May at a house near Tammy’s Salon. The salon is located

near Hickinbottom’s house. Corrothers said that, on the night of July 11, he was attacked by

a man named Suave and grazed by a bullet on his left thigh. Corrothers claimed a friend

picked him up after the fight and took him home, where he went to sleep. Police were unable

to verify Corrothers’s story.

       III.   Capital-Murder Trial

¶9.    Corrothers was indicted on two counts of capital murder and one count of aggravated

assault. He was charged as a habitual offender. At trial, Joshua, Tonya, Hickinbottom, the

early-morning walker, and Investigator Scott Mills testified. Joshua and Tonya identified

Corrothers as the shooter. Hickinbottom identified Corrothers in court as the man who came

to her house to see Taylor that night. The State also called Tiffany Hutchins, the girlfriend

of Corrothers’s friend Frederick Holmes. According to Hutchins, Corrothers said he had

killed some people while he “was trying to get him a lick.” Holmes also testified, recounting

the story Corrothers had told him about the night. The story Corrothers told Holmes matched

the testimony given by Hickinbottom, Tonya, and Joshua. After two hours of deliberation,

the jury found Corrothers guilty on all three counts.




                                              4
¶10.   The sentencing portion of trial commenced the following day. Several mitigation

witnesses testified on behalf of Corrothers—Corrothers’s mother Vonda, his brother, aunt,

middle-school teacher, and a family friend—who all testified to his poor upbringing, his

being raised by his mother, and his lack of a father figure. The jury also heard from Dr.

Joseph Angelillo, an expert clinical psychologist. The jury rejected Corrothers’s mitigation

argument and sentenced him to death. This Court affirmed his convictions and death

sentence on direct appeal. Corrothers v. State, 148 So. 3d 278 (Miss. 2014) (Corrothers I).

       IV.    PCR Petition

¶11.   Corrothers now petitions this Court for leave to proceed in the trial court with a PCR

motion. See Miss. Code Ann. § 99-39-7 (Rev. 2015); M.R.A.P. 22. He presents ten issues—

       I.     In violation of the Sixth and Fourteenth Amendments, trial counsel was
              ineffective for failing to perform an adequate pretrial investigation and
              present available mitigation evidence from petitioner’s available family
              members and friends at sentencing, such that petitioner was denied a
              fair trial and sentencing free from any arbitrary factors as required by
              the Eighth Amendment.

       II.    Petitioner was denied due process and a fair trial when the State
              presented identification testimony from a witness who could only
              provide an in-court identification of Mr. Corrothers.

       III.   Mr. Corrothers is entitled to an evidentiary [hearing] based on recanted
              identification testimony.

       IV.    In violation of the Eighth and Fourteenth Amendments, petitioner’s
              death sentence is unconstitutional because an execution will create a
              substantial risk of cruel and unusual punishment.

       V.     In violation of the Sixth and Fourteenth Amendments, trial counsel was
              ineffective for failing to perform an adequate pretrial investigation and
              present that petitioner has been institutionalized most of his adolescent
              life and adulthood, such that petitioner was denied a fair trial, and


                                              5
                sentencing free from any arbitrary factors as required by the Eighth
                Amendment.

         VI.    Counsel failed to reasonably ensure that jurors gave full effect to
                mitigating evidence.

         VII.   In violation of the Sixth and Fourteenth Amendments, trial counsel was
                ineffective for failing to object to the prosecution’s improper arguments
                during the capital sentencing closing arguments, such that petitioner
                was denied due process, a fair trial, and sentencing free from any
                arbitrary factors as required by the Eighth Amendment.

         VIII. Petitioner’s constitutional right to an impartial jury was violated when
               a juror had improper communication with the victims’ family member
               and witness, Tonya Clark.

         IX.    In violation of the Sixth and Fourteenth Amendments of the United
                States Constitution, trial counsel’s cumulative errors deprived petitioner
                of his constitutional right to effective assistance of counsel, a
                fundamentally fair trial, and due process of law.

         X.     Petitioner’s sentence is disproportionate and in violation of the Eighth
                and Fourteenth Amendments to the United States Constitution and the
                corresponding portions of the Mississippi Constitution.

We address these issues categorically, based on the constitutional right Corrothers alleges

was violated.

¶12.     “Unless it appears from the face of the application, motion, exhibits and the prior

record that the claims presented by those documents are not procedurally barred under

Section 99-39-21 and that they further present a substantial showing of the denial of a state

or federal right,” we “shall . . . deny the application.” Miss. Code Ann. § 99-39-27(5) (Rev.

2015).

                                           Discussion

         I.     Right to Counsel (Issues I, V, VI, VII, and IX)

                                                6
¶13.   Half of Corrothers’s claims are directed toward his trial counsel, who Corrothers

argues provided him constitutionally ineffective assistance, thus denying his Sixth

Amendment right to counsel. U.S. Const. amend VI.

¶14.   “The benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686,

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). A defendant must demonstrate that his

attorney’s actions were deficient and that the deficiency prejudiced the defense of the case.

Id. at 687. “Unless a defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary process that renders the result

unreliable.” Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984) (citing Strickland, 466 U.S.

at 687). The focus of the inquiry must be whether counsel’s assistance was reasonable

considering all the circumstances. Id.

¶15.   With that standard in mind, we find Corrothers has failed to make both showings for

any of his six ineffective-assistance-of-counsel claims.

              A.     Failure to Investigate Mitigating Circumstances

¶16.   Corrothers first asserts his trial counsel failed to effectively convey his home

environment and family history during the sentencing phase of trial. He argues his counsel

offered only a subset of his mitigating circumstances. And he claims defense counsel failed

to investigate potential mitigation evidence, call additional witnesses, and prepare the

witnesses who were called.



                                             7
                     1.     Family, Friends, and Teachers

¶17.   To support his claim, Corrothers attaches affidavits from fourteen additional potential

mitigation witnesses, as well as an affidavit from his mother Vonda, who had testified on his

behalf during sentencing. But “[c]laims that additional witnesses should have been called

are disfavored.” Turner v. State, 953 So. 2d 1063, 1074 (Miss. 2007). There “is no

prejudice when the new mitigating evidence would barely have altered the sentencing profile

presented to the decision maker.” Chamberlin v. State, 55 So. 3d 1046, 1054 (Miss. 2010)

(internal quotations omitted) (quoting Sears v. Upton, 561 U.S. 945, 954, 130 S. Ct. 3259,

3266, 177 L. Ed. 2d 1025 (2010)). So to prevail on his claim, Corrothers must prove, “had

the affiants been called to testify, there was a reasonable probability that the result of the

proceeding would have been different.” Moffett v. State, 156 So. 3d 835, 849 (Miss. 2004)

(citing Spicer v. State, 973 So. 2d 184, 191 (Miss. 2007)). And here, Corrothers fails in his

burden.

¶18.   Corrothers’s poor home environment and family history were presented in detail at

the sentencing phase. The jury heard from his mother,4 brother,5 church friend,6 aunt,7 and


       4
        Vonda testified she and her children lived with her mother and several other family
members, a total of ten, for a period of time. At one point, she left the children with her
mother to attend college. She explained Corrothers’s father, Lee Green, was never in the
picture and had substance-abuse issues. She discussed her bouts with depression
surrounding her mother’s death and a failed marriage with her Nigerian husband, Godwin
Agulanna. Vonda elaborated regarding how her depression affected her ability to raise her
children. Because of her lack of resources, Vonda and her children lived in a low-income
neighborhood near drug dealers. According to Vonda, Corrothers did not have a consistent
male figure in his life, which caused him to “act up” when he was eight to nine years old.
       5
       Marcus, Corrothers’s brother, testified next. Green was Marcus’s father as well, and
Marcus reiterated Green’s lack of involvement in their lives. Marcus left home at the age

                                              8
middle-school teacher,8 “who all testified to his poor upbringing, his being raised by his

mother, and his lack of a father figure.” Corrothers I, 148 So. 3d at 292. The new affiants

fall into these same categories, being either Corrothers’s family members, church members,

or school teachers. Many of the them present cumulative testimony. And none of their

affidavit testimony covers any new subset of mitigating circumstances that was not



of fourteen to chase his dreams, making money. Because he had cars, clothes, and money,
Marcus stated his younger brother probably wanted to follow in his footsteps. Marcus
agreed it was not the best thing for Corrothers to look up to him and his street life. While
Marcus and Corrothers were not close growing up, they formed a relationship in prison
when they were assigned to the same facility. Marcus expressed, in hindsight, he should
have been a better example to Corrothers. He then asked the jury to spare his brother’s life
and sentence him to life in prison.
       6
         Jessie Thompson, a fellow church member of Vonda’s, met Corrothers when he was
seven or eight years old. At one point, Vonda’s family lived with Thompson. She recounted
how Corrothers would steal items as a child. Thompson stated Vonda did not know how to
discipline Corrothers and his brothers, and Thompson attempted to intervene. According
to Thompson, Corrothers resented the church because he felt it was taking his mother away
from him.
       7
         Kathy Sanders, Corrothers’s aunt, stated she was a figurehead in Corrothers’s life
until she became hooked on drugs. She agreed Corrothers grew up in a bad neighborhood
plagued with drug addicts. She also reiterated how Green was not involved in Corrothers’s
life. Sanders discussed Vonda’s poor marriage to Godwin and her relationship with her
church. Kathy also thought Corrothers resented his mother for her devotion to the church
over her children.
       8
        Arlene Dowd, Corrothers’s former teacher, testified regarding his performance in
school. Dowd oversaw a special program for students with learning difficulties. Many of
the students read below level. The program focused on reading and allowed the students to
attend cultural events. Corrothers was in the program for one year. Dowd stated he was a
“passionate and energetic” student who loved art. Although Corrothers had poor test scores,
Dowd thought he had potential to be a great student. She noted Corrothers had behavioral
issues at school, resulting in parent conferences and referrals to receive academic and
behavioral help. The school went through the procedures to have Corrothers tested to
determine if he needed medication, but testing never occurred. Dowd’s talks with Vonda
about Corrothers went nowhere as Vonda wished to “leav[e] it up to Jesus.”

                                             9
thoroughly covered by the mitigation witnesses called to testify at trial.9 So Corrothers

cannot show his counsel was deficient for failing to investigate these mitigating

circumstances. Nor can he show prejudice, as the potential mitigating evidence “would

barely have altered the sentencing profile presented to the [jury].” Chamberlin, 55 So. 3d

at 1054. And without showing prejudice, he has no triable ineffective-assistance claim.

                       2.    Psychologists and Psychiatrists

¶19.   Also as part of this claim, Corrothers argues his trial counsel was deficient for not

having Corrothers tested further. Counsel did employ a psychologist, Dr. Joseph Angelillo,

who tested Corrothers and testified at the sentencing hearing. But Corrothers asserts Dr.

Angelillo’s evaluation was too general—counsel also should have had Corrothers specifically

evaluated for “executive functioning.”

¶20.       Executive functioning “is a person’s ability to anticipate, problem-solve, and

understand delayed gratification. The deficits inhibit one’s ability to anticipate

consequences, learn from mistakes, and respond in a rational and non-impulsive manner.”

Dickerson v. State, 175 So. 3d 8, 16 (Miss. 2015). Corrothers presents the affidavit of Dr.

       9
          The only exception is Corrothers’s claim that his trial counsel should have
investigated what happened to his half-brother Tim. In her PCR affidavit, Corrothers’s
mother Vonda avers Tim, when he was twenty-one, took a trip to Africa with his Nigerian
father and returned a different person. Allegedly, Tim witnessed witchcraft while in
Africa—a man was shot, died, and supposedly was brought back to life. She claims the
event triggered Tim to have psychotic episodes he had never exhibited before. He later was
diagnosed with schizophrenia, bipolar disorder, and other mental illnesses. But according
to Vonda’s affidavit, all these events occurred while Corrothers was serving his ten-year
sentence. And Corrothers does not articulate how his half-brother’s psychotic breakdown
impacted him (Corrothers). So he cannot show he was prejudiced by his counsel not
investigating what happened to his half-brother and not presenting this evidence at his
sentencing hearing.

                                            10
Malcolm Spica, who conducted a neuropsychological examination of Corrothers in

September 2015. Dr. Spica states Corrothers’s results revealed a converging pattern of

scores indicating severe difficulty with executive functioning and severe anxiety. To a

reasonable degree of medical certainty, Dr. Spica states Corrothers’s mental defect in

executive control, particularly during times of pressure, was likely to produce significantly

disorganized behavior and substantial lapses in judgment.

¶21.   Based on this, Corrothers maintains defense counsel’s failure to investigate and

present evidence of his deficits in executive functioning constituted deficient performance.

And this deficient performance prejudiced him, because there is a reasonable probability this

evidence would have changed the outcome of the sentencing hearing. But “where defense

counsel has sought and acquired a psychological evaluation for the defendant for mitigation

purposes, counsel generally will not be held ineffective for failure to request additional

testing.” Ross v. State, 954 So. 2d 968, 1005 (Miss. 2007) (citing Moore v. Parker, 425 F.

3d 250, 254 (6th Cir. 2005)). Moreover, as with Corrothers’s lay witnesses, we find Dr.

Spica’s findings would not have altered the psychological profile presented to the jury. See

Chamberlin, 55 So. 3d at 1054.

¶22.   At trial, “Dr. Angelillo described Corrothers as rebellious, cocky, a poor

problem-solver, and testified that he might act out in anger ‘when cornered.’” Corrothers I,

148 So. 3d at 291-92. Dr. Angelillo discussed in detail Corrothers’s paranoia and anxiety.

He stated Corrothers was immature because he had poor coping skills and could not deal with

conflict resolution and emotional issues. And the personality test Dr. Angelillo administered



                                             11
showed Corrothers had a hard time getting along with others and mistrusted others. Still, Dr.

Angelillo opined Corrothers did not meet the criteria for incompetency or insanity, as he had

an appreciation of wrong. And Dr. Spica’s proposed expert testimony does not contradict

this. While Dr. Spica found Corrothers has deficits in executive functioning, he did not state

Corrothers is incapable of functioning properly.

¶23.   Thus, we find the more specific executive-functioning testimony proposed by

Corrothers’s new expert would not have significantly differed or added to Dr. Angelillo’s

testimony. So Corrothers cannot show the outcome would have been different if an expert

had been presented on executive functioning.

¶24.   Similarly, Corrothers claims he should have been given a psychiatric exam, in

addition to Dr. Angelillo’s psychological evaluation. This exam, according to Corrothers’s

second new expert, would have explained the “psychological, psychiatric, biological, and

environmental risks factors that formed his development.” But the circumstances that led to

Corrothers becoming the person he was were fully presented to the jury through Dr.

Angelillo and the lay witnesses called.10 In particular, Dr. Angelillo opined Corrothers’s

family environment and school were environmental factors that adversely affected

Corrothers’s behavior. Dr. Angelillo said the lack of a male figure negatively affected

Corrothers. He noted Vonda’s depression due to financial issues, physical health problems,

and two sexual assaults could have impacted Corrothers. He also noted Vonda had

borderline personality disorder and lacked the ability to make her own choices. Further, he



       10
            See notes 3-7, supra.

                                             12
was unsure whether Corrothers suffered from an untreated learning or behavioral disorder

because no intervention occurred while Corrothers was in school.

¶25.   A review of the trial transcript reveals counsel reasonably investigated Corrothers’s

background—including his psychological history—and the impact it had on Corrothers’s

development and behavior. So Corrothers cannot substantially show his counsel was

deficient in this area or that Corrothers was prejudiced by an additional expert not testifying.

See Brown v. State, 798 So. 2d 481, 498 (Miss. 2001) (denying relief based on failure to

present additional psychiatric/psychological experts because the petitioner “ma[de] no

showing that additional expert or psychiatric testimony would have resulted in a different

sentence”).

                      3.     Effects of Prolonged Incarceration

¶26.   In addition to his mitigation arguments, Corrothers insists his counsel was ineffective

for not investigating and presenting evidence that he had been incarcerated—either in a

juvenile training facility or adult prison—for half of his life. According to Corrothers, trial

counsel should have presented to the jury evidence about the difficult conditions he would

have faced as a young person in prison and how that would have impacted him.

¶27.   But “strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable[.]” Foster v. State, 687 So. 2d 1124, 1132

(Miss. 1996). And here, Corrothers has not shown counsel’s decision not to focus on

Corrothers’s prolonged institutionalization and incarceration was anything other than

strategic. Counsel would have been aware of this aspect of Corrothers’s past through the



                                              13
investigations of the mitigation specialists. But dwelling on Corrothers’s juvenile record and

previous imprisonment could have backfired. “[W]hen the defendant puts mitigating

evidence before the jury during the penalty phase, the prosecution is allowed a

counter-attack.” Finley v. State, 725 So. 2d 226, 239 (Miss. 1998). By not focusing on

Corrothers’s living conditions while in juvenile or adult facilities, counsel kept the State from

counter attacking with Corrothers’s criminal history. See, e.g., Ross, 954 So. 2d at 1005

(where defense counsel’s “good prisoner” evidence opened door for State’s evidence that

defendant was, in fact, a high-security prisoner because he had been caught with a hacksaw,

had tried to escape, and had been making alcoholic beverages in prison). So Corrothers can

show neither his trial counsel was deficient for not presenting this mitigation argument nor

that emphasizing Corrothers’s experiences in a juvenile training facility or adult prison would

have led to a different outcome.

              B.      Failure to Properly Instruct Jury

¶28.   Next, Corrothers claims trial counsel “failed to reasonably ensure that jurors gave full

effect to mitigating evidence.” But the reason the jury was not instructed as Corrothers now

believes they should have been was not due to any deficiency by his counsel. At trial,

counsel presented four instructions on weighing mitigation evidence. The trial court rejected

all four. And on direct appeal, this Court found no error in the judge’s denial of these

instructions. Instead, we found the mitigation-evidence instructions given to the jury were

sufficient. Corrothers I, 148 So. 3d at 300-04. So Corrothers has no claim his counsel was

deficient or that he was prejudiced by the instructions given.



                                               14
              C.     Failure to Object to Improper Argument

¶29.   Corrothers also claims his trial counsel was ineffective for failing to object to the

State’s improper arguments during the penalty phase.

¶30.   But we find neither of the arguments Corrothers cites was improper. So Corrothers

cannot show counsel was deficient for not objecting, nor can he show prejudice. See Spicer

v. State, 973 So. 2d 184, 201 (Miss. 2007) (“Because the underlying issue has been found

to be without merit, counsel cannot be held deficient for failing to object, nor can Spicer

show prejudice.”).

                     1.     Comment on Corrothers’s Lack of Remorse

¶31.   During closing argument, the State said “[i]t can only be mitigating if there is some

accepting of responsibility of your action. There has been none.” Corrothers asserts this

was an improper statement about mitigation evidence, so his counsel should have objected.

But in Doss v. State, 709 So. 2d 369, 399 (Miss. 1996), during closing argument at the

penalty phase, the State argued also against considering Doss’s mitigation evidence and for

considering Doss’s lack of remorse. And we held the prosecutor’s comments did not exceed

the limits of permissible argument. Id. at 400 (citing Berry v. State, 575 So. 2d 1, 9 (Miss.

1990)). See also Jackson v. State, 672 So. 2d 468, 493 (Miss. 1996) (holding that the

defendant’s remorse is encompassed in a “catch-all,” nonstatutory mitigating factor). We

find the same here—the State’s argument fell within the wide latitude allowed during closing

argument. So Corrothers cannot show his counsel’s failure to object was deficient or that the

failure to object prejudiced him.



                                             15
                     2.      Comment on Evidence

¶32.   This wide lattitude does have limits. “[C]ounsel is clearly limited to arguing facts

introduced in evidence, deductions and conclusions he or she may reasonably draw

therefrom, and the application of the law to the facts.” Taylor v. State, 672 So. 2d 1246,

1266 (Miss. 1996). And according to Corrothers, his counsel failed to object when the State

exceeded that limit by misleading the jury to believe Corrothers’s fingerprints were found

in Taylor’s car. But our review of the transcript reveals the State properly limited its

argument to the evidence presented and a reasonable deduction to be drawn from it.

¶33.   Corrothers’s fingerprints were not found in Taylor’s car. A handgun, the murder

weapon, was recovered from the car. But it did not have Corrothers’s fingerprints on it

either. Before results of the fingerprint testing were received, Investigator Mills asked

Corrothers whether his fingerprints would be found on the gun.

¶34.   Both defense counsel and the State brought up this interview during their respective

closings. Corrothers’s counsel emphasized how Corrothers told Investigator Mills—

       I didn’t say I did it. Didn’t say I killed him. Didn’t say I wrecked the car even
       though investigator said well what if we find the finger prints on that gun.
       How did they get there. He said what? I don’t know.

But the State argued the jury should view the interview differently—

       [I]f you listen to the interview closely, [Mills] says, “If we have finger prints
       on the gun how could you explain that?” And it’s very interesting because in
       his response to that [Corrothers] explains how his finger prints could be on that
       gun. He describes the murder weapon. He describes the murder weapon that
       was found in the car. Coincidence? . . . [A]n hour into the interview, maybe
       more[,] he starts talking about how he was in a white car that night, trying to
       legitimately explain why his fingerprints would be in Taylor Clark’s car
       because he didn’t know.

                                              16
Contrary to Corrothers’s assertion, the State never said that Corrothers’s fingerprints were

found in the car or on the gun. Instead, both defense counsel and the State drew reasonable

conclusions from the evidence the jury had heard about Corrothers’s interview with

Investigator Mills. So Corrothers cannot show his counsel’s failure to object was deficient

or that the failure to object prejudiced him.

               D.     Cumulative Effect

¶35.   In his final ineffective-assistance-of-counsel claim, Corrothers asserts the “cumulative

effect” of his counsel’s errors entitles him to relief. But for there to be a “cumulative effect,”

there first must be individual errors by counsel. And, as discussed above, Corrothers has not

substantially shown any instance where his trial counsel was in error. See Gray v. State, 887

So. 2d 158, 173 (Miss. 2004) (“With no error to be found on the part of trial counsel in these

enumerated instances, there can be no cumulative error[.]”).

       II.     Right to an Impartial Jury (Claim VIII)

¶36.   In addition to his Sixth Amendment right-to-counsel argument, Corrothers also asserts

his Sixth Amendment right to trial by an impartial jury also was violated. U.S. Const. amend

VI. He claims one of the jurors was biased. As proof, he attached two affidavits to his PCR

petition—one by his mother Vonda, and another by his cousin Makyia Sanders. Both claim

they observed a female juror improperly communicating with Tonya Clark during the trial.11

       11
            According to Vonda—

       During the trial, I noticed that a heavyset white female juror was
       communicating a lot of information to Tonya Clark when the jury would enter
       the courtroom. During the time the verdict was about to be read at sentencing,
       I noticed that this same juror said to Tonya Clark, “We got it.”

                                                17
¶37.   The State asserts this claim is procedurally barred, because it was capable of being

raised at trial and on direct appeal. See Williams, 669 So. 2d at 52. But under our

heightened standard of review for death-penalty cases, we resolve “all doubts . . . in favor

of the accused.” Batiste v. State, 184 So. 3d 290, 292 (Miss. 2016) (emphasis in original)

(citations omitted). And here, we simply cannot speculate whether Vonda and Sanders

would have alerted Corrothers or his counsel immediately if they indeed observed the alleged

improper contact. Instead, we are required to resolve this question in Corrothers’s favor to

find no procedural bar.

¶38.   Since his claim is at least “procedurally alive,” we find his allegation of improper

juror contact warrants an evidentiary hearing. Where allegations of juror impartiality have

been made, the United States Supreme Court “has long held that the remedy . . . is a hearing

in which the defendant has the opportunity to prove actual bias.” Smith v. Phillips, 455 U.S.

209, 216, 102 S. Ct. 940, 945, 71 L. Ed. 2d 78 (1982) (citing Remmer v. United States, 347

U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954)). In light of Corrothers allegations, we find

he is entitled to the opportunity to prove actual juror bias.

¶39.   We grant Corrothers leave to proceed in the trial court with his PCR petition on this

issue only.

       III.   Right to a Fair Trial (Issues II and III)


And according to Sanders—

       I attended the trial. I remember seeing a juror, who was a white lady, smile
       and wink her eye at Taylor’s mother during the trial. I thought that it was
       unusual for the juror to be allowed to do that. I would be able to identify the
       juror if I saw her today.

                                              18
¶40.   Corrothers argues his trial was unconstitutionally unfair based on Hickinbottom’s

testimony. On this issue, we deny him leave to proceed.

¶41.   At trial, Hickinbottom identified Corrothers as the man who came to her door looking

for Taylor on July 11, 2009. But in an affidavit executed six years later, she claimed she was

“not totally sure what the man looked like because [she] could not see his face.” Corrothers

argues the affidavit shows Hickinbottom’s in-court identification was unreliable and, thus,

should not have been admitted. But Corrothers did not object to Hickinbottom’s testimony

as being unreliable, so this issue is waived. See Corrothers I, 148 So. 3d at 300 (holding

Corrothers’s challenge on direct appeal to Tonya’s in-court identification was waived due

to Corrothers’s failure to object). So the only procedurally available avenue to challenge

Hickinbottom’s testimony is through his related claim that Hickinbottom has recanted her

trial testimony.

¶42.   Corrothers asks for an evidentiary hearing to determine if Hickinbottom’s recanted

testimony mandates a new trial. But we find no hearing is warranted. Recanted testimony

does not automatically entitle the defendant to a new trial. Williams v. State, 669 So. 2d 44,

53 (Miss. 1996). Instead, “in a death penalty case, admission of perjured testimony mandates

a new trial, where there is a reasonable probability that a different result will be reached in

the new trial without the perjured testimony.” Carr v. State, 873 So. 2d 991, 998 (Miss.

2004) (emphasis in original) (quoting Williams, 669 So. 2d at 53). Thus, even if Corrothers

were able to prove Hickinbottom has recanted, he still could not show that “there is a

reasonable probability that a different result will be reached” with her new testimony. Id.



                                              19
¶43.   Hickinbottom was not the only one who identified Corrothers. Both Tonya and

Joshua also identified Corrothers as the murderer. And they testified they came into much

closer contact with him that night than Hickinbottom. On direct appeal, this Court found

both Joshua’s and Tonya’s identifications were reliable and admissible. Corrothers I, 148

So. 3d at 298-300. So even without Hickinbottom’s positive identification, the evidence still

supports Corrothers being the man who lethally attacked the Clark family.

¶44.   Moreover, Hickinbottom’s new testimony is consistent with Corrothers’s conviction.

In her affidavit, Hickinbottom states she was “not totally sure” the man she saw was

Corrothers. But she does not say the man she saw was not or could not have been Corrothers.

While she “could not see his face,” she “was able to see the man’s figure and hair.” And

nowhere in her affidavit does she claim the man she saw had a different figure and hair than

Corrothers.

¶45.   Because Corrothers has failed to show a different outcome would have been reached

had Hickinbottom testified according to her affidavit, we deny his request for leave to

proceed with this claim in the trial court on his recanted-testimony claim.

       IV.    Right to Be Free From Cruel and Unusual Punishment
              (Issues IV and X)

¶46.   Finally, we address Corrothers’s two claims that the death sentence imposed on him

violates his Eighth Amendment right to be free from cruel and unusual punishment. U.S.

Const. amend VIII.

              A.     Proportionality




                                             20
¶47.   Corrothers argues his death sentence was disproportionate when compared to similar

cases. But on direct appeal, we compared Corrothers’s death sentence with others, as

required by Mississippi Code Section 99-19-105 (Rev. 2015). Corrothers I, 148 So. 3d at

324. Because we “have repeatedly upheld the death penalty [both] in cases involving capital

murders committed during the commission of a robbery” and in “cases involving multiple

capital murders,” we found no disproportion. Id. (citations and internal quotations omitted).

¶48.   As this Court has already considered the merits of this claim, Corrothers is

procedurally barred from raising it again. See Miss. Code Ann. § 99-39-21(3) (Rev. 2015).

              B.     Method of Execution

¶49.   Corrothers also argues the manner of execution set forth in Mississippi Code Section

99-15-51 (Supp. 2016) carries the unconstitutional risk of cruel and unusual punishment.

Corrothers elaborates no further, except to acknowledge that, at the time he filed his PCR

petition, Mississippi’s three-part lethal-injection protocol was being challenged in both

federal and state court. He raises this claim merely to “preserve” this issue, pending the

outcome of that litigation.

¶50.   But the United States Supreme Court has already addressed this issue sufficiently.

The United States Supreme Court “has never invalidated a State’s chosen procedure for

carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze v.

Rees, 553 U.S. 35, 48, 128 S. Ct. 1520, 1530 (2008). The death penalty is constitutional.

Glossip v. Gross, 135 S. Ct. 2726, 2732, 192 L. Ed. 2d 761 (2015) (citing Baze, 553 U.S. at

47, 128 S. Ct. at 1529). So “it necessarily follows that there must be a constitutional means



                                             21
of carrying it out.” Id. at 2732-33 (quoting Baze, 553 U.S. at 47, 128 S. Ct. at 1529). “And

because some risk of pain is inherent in any method of execution, . . . the Constitution does

not require the avoidance of all risk of pain.” Id., 135 S. Ct. at 2733. “After all, while most

humans wish to die a painless death, many do not have that good fortune. Holding that the

Eighth Amendment demands the elimination of essentially all risk of pain would effectively

outlaw the death penalty altogether.” Id. So challenging the State’s method of execution on

Eighth Amendment grounds requires more than asserting Section 99-15-51’s procedures

carry the risk of severe pain. It also requires “identify[ing] a known and available alternative

method of execution that entails a lesser risk of pain.” Id. at 2731.

¶51.   In his PCR petition, Corrothers fails to identify an alternative method of execution that

is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of

severe pain.” Baze, 533 U.S. at 52, 128 S. Ct. at 1532. Thus, from the face of the petition,

he has no Eighth Amendment method-of-execution claim.

                                         Conclusion

¶52.   In Corrothers I, we carefully considered Corrothers’s arguments and found no

reversible error. Once again, we have scrutinized the trial record and Corrothers’s PCR

petition and exhibits. And for the above reasons, we find Corrothers is not entitled to pursue

nine of the ten claims in his PCR petition. For one claim only—alleged juror bias—we grant

Corrothers leave to proceed in the Lafayette County Circuit Court. Corrothers shall have

sixty days from the issue of this Court’s mandate to file his PCR petition.

¶53. LEAVE TO SEEK POST-CONVICTION RELIEF GRANTED IN PART AND
DENIED IN PART.

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    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.




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