                         IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 1999-DR-01391-SCT

KELVIN JORDAN a/k/a KELVIN L. JORDAN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                           11/01/1996
TRIAL JUDGE:                                HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                  CLARKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    JAMES W. CRAIG
                                            STEFANIE M. McARDLE
                                            F. KEITH BALL
                                            PRO SE
DISTRICT ATTORNEY                           BILBO MITCHELL
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: MARVIN L. WHITE, JR.
NATURE OF THE CASE:                         CIVIL - DEATH PENALTY - POST
                                            CONVICTION
DISPOSITION:                                LEAVE TO SEEK POST-CONVICTION RELIEF
                                            DENIED - 05/19/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          EN BANC.

          CARLSON, JUSTICE, FOR THE COURT:

¶1.       Kelvin Jordan was convicted by a Clarke County jury of two counts of capital murder

in the shooting deaths of Tony Roberts and Codera Bradley, and after a separate hearing, the

jury sentenced Jordan to death. This Court affirmed Jordan’s direct appeal in Jordan v. State,

728 So.2d 1088 (Miss. 1998). Rehearing was denied, and the United States Supreme Court

denied certiorari.   Jordan v. Mississippi, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778

(1999).
¶2.     Jordan now seeks post-conviction relief pursuant to Miss. Code Ann. §§ 99-39-1 et seq.

(Rev. 2000). He raises numerous issues related to his trial and the effectiveness of his

attorneys at trial and on appeal. After a full review of the claims raised in the petition, we find

that Jordan’s petition for post-conviction relief is without merit and should be denied.

                        FACTUAL AND PROCEDURAL BACKGROUND

¶3.     On October 5, 1995, after smoking marijuana and drinking beer outside a Pachuta truck

stop, cousins Kelvin Jordan and Frontrell Edwards formulated a plan to rob someone in order

to get money to attend a football game. They discussed having to kill the victim so that they

would not later be identified. Jordan had a .25 caliber pistol, and Edwards had a .22 pistol.

¶4.     Previously that night, Tony Roberts had picked up his two-year-old son Codera Bradley

from the child’s mother’s residence. When Roberts stopped at the truck stop, Edwards asked

him for a ride. Roberts agreed, and Jordan and Edwards left with Roberts and the child. After

heading south on Highway 35, Roberts stated that he had to work the next morning and he

decided that he had driven Jordan and Edwards as far as he could. When he stopped the car, he

was shot twice in the head. Codera was later shot in the head. Jordan and Edwards dumped the

bodies on a wooded dirt road off the highway.

¶5.     Law enforcement officers received an anonymous phone call implicating Edwards and

Jordan in the killings.    After a search of the trailer where the suspects were staying, officers

found a pistol and items thought to have been stolen from Roberts’s vehicle. Upon questioning

by various officers, Jordan admitted that he and Edwards had robbed and killed Roberts and

Bradley.   In his statements to police, Jordan blamed Edwards for the shootings.                However,

                                                     2
Jordan did confess that he knew about the plan to rob someone, that he suggested to Edwards

that they rob Roberts when Roberts pulled into the gas station, that he had a pistol when he left

his house that afternoon, that he had fired a shot at Roberts, that he helped Edwards dispose of

Roberts’s body, and that he helped burn the car and get rid of the pistols.

¶6.        After giving several statements, Jordan took the officers to the location of the bodies.

Both victims had been shot in the head. Roberts’s car had been stolen, and his pockets had

been emptied. Jordan and Edwards had also stolen Roberts’s Nike shoes. Jordan had stated

that he had brought a .25 caliber pistol with him and that Edwards had a .22 caliber pistol.

Edwards and Jordan had also used Roberts’s .380 pistol at some point during the crime.

Roberts had been shot twice in the head. One wound was a non-fatal shot that passed through

Roberts’s face. Codera had been shot once in the head. The medical examiner and the State’s

firearms expert were unable to determine which wounds had been caused by which pistol.

¶7.        Jordan was indicted by a Clarke County jury on two counts of capital murder. He was

tried and convicted of both counts, and the jury then considered punishment in a sentencing

hearing.      After weighing the aggravating and mitigating factors, the jury returned verdicts of

death on both counts.        Jordan appealed, and the two capital murder convictions and death

sentences were affirmed unanimously by this Court. Jordan v. State, 728 So.2d 1088 (Miss.

1998).

¶8.        Jordan initially filed a pro se petition for post-conviction relief.   In that filing, Jordan

made only conclusory allegations without supporting argument.           We consider those claims to

be subsumed by the later filings made by the attorneys who later entered appearances on behalf

                                                    3
of Jordan.   In the petition filed by counsel, Jordan raises numerous issues regarding admission

of evidence and ineffective assistance of counsel. Counsel for Jordan also filed an amended

pleading in which he raised one additional issue as to whether Jordan was mentally retarded

pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Finally, in his second amended petition, Jordan raises several new constitutional issues

unrelated to issues previously argued. We will consider each issue raised by Jordan.

                                            DISCUSSION

        I. Psychological Examination in Presence of Law Enforcement

¶9.     Jordan first alleges that he was denied his Fifth, Sixth, Eighth, and Fourteenth

Amendment rights when Deputy Sheriff Todd Kemp was allowed to testify as to a comment

he made during his mental evaluation by Dr. Reginald White. This claim was not raised at trial

or on direct appeal to this Court and is, therefore, barred by the provisions of Miss. Code Ann.

§ 99-39-21(1). This Court has noted that:

        Post-conviction relief is not granted upon facts and issues which could or
        should have been litigated at trial and on appeal. "The doctrine of res judicata
        shall apply to all issues, both factual and legal, decided at trial and on direct
        appeal." Miss. Code Ann. § 99-39- 21(3) (Supp. 1994). 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 1124, 1129 (Miss. 1996). See also Bishop v. State, 882 So. 2d

135, 149 (Miss. 2004); Grayson v. State, 879 So. 2d 1009, 1020 (Miss. 2004); Wiley v. State,

750 So.2d 1193,1208 (Miss. 1999).



                                                   4
¶10.      Prior to trial, the defense obtained permission to have Jordan examined by a psychiatric

expert.    Dr. Reginald White testified in the sentencing phase that after examining Jordan, he

had determined that Jordan appeared to be a person who would be easily influenced or

dominated by a stronger person such as Frontrell Edwards.           He also testified that Jordan

appeared to have low-average intelligence. During the State’s rebuttal, the State called Deputy

Sheriff Todd Kemp who testified that he had transported Jordan to Dr. White’s office and that

he had been present during Jordan’s interview.       Deputy Kemp testified that Jordan had stated

during the examination that he had not been influenced by Edwards and that both of them had

done what they wanted to do.

¶11.      Jordan now maintains that allowing Deputy Kemp to listen in on the examination

violated his constitutional rights. Jordan relies on the U.S. Supreme Court ruling in Estelle v.

Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which reversed the death

sentence of a capital petitioner after a state psychiatrist testified in rebuttal at the sentencing

hearing regarding comments made to him by the petitioner during a court-ordered competency

evaluation. There the Court stated:

          The Court has held that “the availability of the [Fifth Amendment] privilege does
          not turn upon the type of proceeding in which its protection is invoked, but upon
          the nature of the statement or admission and the exposure which it invites.” In
          re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967). In this
          case, the ultimate penalty of death was a potential consequence of what
          respondent told the examining psychiatrist. Just as the Fifth Amendment
          prevents a criminal defendant from being made “‘the deluded instrument of his
          own conviction,’” Culombe v. Connecticut, 367 U.S. 568, 581, 81 S.Ct. 1860,
          1867, 6 L.Ed.2d 1037 (1961)( quoting 2 Hawkins, Pleas of the Crown 595 (8th
          ed. 1824)), it protects him as well from being made the "deluded instrument" of
          his own execution.

                                                 5
451 U.S. at 462. Estelle is distinguishable from the case sub judice because in Estelle, the

statement made by the psychiatrist – that the petitioner posed a future risk to the community

– was directly used by the jury to sentence the petitioner to death. 1 In the case sub judice, the

statement made by the deputy refuted the psychiatrist’s testimony that Jordan was easily

influenced. There is nothing in the record to indicate that law enforcement surreptitiously

placed Deputy Kemp in the room with Dr. White and Jordan during the examination for the

sinister motive of eavesdropping to obtain incriminating evidence against Jordan for later use

at trial.       Additionally, similar testimony was allowed into evidence through Jordan’s          mother

and was not directly rebutted by the State.

¶12.        Pursuant to Miss. Code Ann. § 99-39-21 (Rev. 2000), the failure to raise a claim “shall

constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing

of cause and actual prejudice grant relief from the waiver.” The section defines “cause” as

“those cases where the legal foundation upon which the claim for relief is based could not have

been discovered with reasonable diligence at the time of trial or direct appeal.” “Actual

prejudice” is defined as “those errors which would have actually adversely affected the ultimate

outcome of the conviction or sentence.” The petition must allege the necessary facts to prove

cause and actual prejudice in order to overcome the procedural bar.




            1
          In Texas, the jurisdiction from which the petitioner appealed, the jury must find that there is a
probability that a defendant would commit criminal acts of violence in the future before it can sentence the
defendant to death.

                                                    6
¶13.    Even if this Court were to find that the testimony elicited from Deputy Sheriff Kemp

was improper, Jordan fails to meet the requirements of section 99-39-21. This claim could

have been raised before the trial court through an objection to Kemp’s testimony, and this

claim could have been raised before this Court on direct appeal. Because Jordan could have

discovered this error with “reasonable diligence at the time of trial or direct appeal,” Jordan

fails to meet the cause requirement of the statute. Jordan also fails to show any actual

prejudice from this testimony. His mother testified that he was easily influenced, especially

by his cousin, Frontrell Edwards. The State did not directly rebut this testimony, as it did the

testimony of Dr. White. Because Jordan fails to meet both requirements of Miss. Code Ann.

§ 99-39-21, the procedural bar is not waived, and he is not entitled to relief on this issue.

¶14.    Jordan also claims that the deputy’s actions violated his right to independent expert

assistance. He cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985),

in which the U.S. Supreme Court held that the Constitution requires that the defense be given

access to an independent psychiatric expert when the defendant’s competency is in question.

The trial judge here did grant Jordan permission to hire an independent expert, and the defense

retained the services of Dr. White.           Jordan claims that the presence of Deputy Kemp

compromised the independence of the psychiatrist hired by the defense.                We agree that the

better practice would have been for the doctor to examine Jordan in the absence of any law

enforcement officers after taking adequate security measures.            However, we find that Jordan

was given the opportunity to be examined by an independent psychiatrist of his choosing at

State expense.     The expert testified in accordance with the defense’s mitigation theory that

                                                     7
Jordan had been led to participate in the crimes by the stronger-willed Edwards. We find no

constitutional deprivation requiring post-conviction relief. For the reasons stated, we find this

issue to be without merit.

        II. Exculpatory Evidence

¶15.    Jordan next contends that the State withheld exculpatory or impeachment evidence

relating to two witnesses who testified at trial, Spencer Tracy Nicholson and Mark Holloway.

In support of this claim, Jordan attached to his petition the affidavits of Terri Skinner and

Donald Mark Phillips to his petition. Jordan also states that a motion for discovery has been

pending since April 19, 2001.

¶16.    In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215

(1963), the United States Supreme Court determined      that “suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” In order to establish that a   Brady violation has occurred, the defendant must

show:

        a. that the State possessed evidence favorable to the defendant (including
        impeachment evidence);
        b. that the defendant did not possess the evidence nor could he have obtained it
        himself with reasonable diligence;
        c. that the prosecution suppressed the favorable evidence; and
        d. that had the evidence been disclosed to the defense, a reasonable probability
        exists that the outcome of the proceedings would have been different.

King v. State, 656 So.2d 1168, 1174 (Miss. 1995).



                                               8
¶17.    In the original petition, Jordan attached affidavits from Terry Skinner and Donald Mark

Phillips as the only support for this claim. Skinner, apparently a friend of Jordan and Edwards

at the time of the crimes, stated only that two other witnesses, Spencer Tracy Nicholson and

Mark Holloway, might have had information about the crimes.             Much of the affidavit is based

on hearsay.    There is no indication in the remainder of the affidavit that the State had any

knowledge of the facts as alleged by Skinner. The affidavit filed by Phillips, an investigator in

Kentucky, is completely based on hearsay. We find very little value in that affidavit.

¶18.    Jordan has produced no evidence that the State withheld any exculpatory evidence from

him prior to trial.      Jordan has not identified a single document, statement, or any other

evidence which the State had in its possession that was not turned over to the defense.            He

likewise makes no argument that the defense could not have interviewed Skinner, Nicholson

or Holloway and gotten the same information.             Finally, Jordan makes no showing of any

probability of actual prejudice. We, therefore, find that Jordan has met none of the four Brady

requirements, and we thus find no merit in this claim.




        III. Ineffective Assistance of Counsel

¶19.    Many of the issues raised in the petition deal with allegations of ineffective assistance

of counsel. The standard for determining if a defendant received effective assistance of

counsel has often been noted by this Court. “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

                                                     9
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 v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064). The

focus of the inquiry must be whether counsel’s assistance was reasonable considering the

totality of the circumstances. Id. We have stated:

        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. at 2065). Defense

counsel is presumed competent. Hansen v. State, 649 So.2d 1256, 1258 (Miss. 1993).

        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.



                                                     10
       There is no constitutional right then to errorless counsel. Cabello v. State, 524
       So.2d 313, 315 (Miss. 1988); Mohr v. State, 584 So.2d 426, 430 (Miss. 1991)
       (right to effective counsel does not entitle defendant to have an attorney who
       makes no mistakes at trial; defendant just has right to have competent counsel).
       If the post-conviction application fails on either of the Strickland prongs, the
       proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss. 1987); Mohr v.
       State, 584 So.2d 426 (Miss. 1991).

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

1130 (Miss. 1996)).

               A. Impeachment Evidence

¶20.   Jordan’s initial claim of ineffective assistance of counsel relates to the preceding claim

that the State failed to disclose exculpatory evidence. Jordan argues that if the State was not

guilty of any Brady discovery violation, then the attorneys at trial were ineffective in failing

to investigate and uncover impeachment evidence pertaining to the testimony offered by

Holloway and Nicholson.     Holloway testified that he had seen a gun and car stereo equipment

at the house of Edwards and Jordan shortly after the killings. Nicholson also testified that

Edwards and Jordan had stolen some stereo equipment and that there had been some discussion

about the presence of blood on some car speakers.

¶21.   Jordan now maintains that his attorneys should have cross-examined Nicholson and

Holloway about an alleged feud between Roberts and Nicholson and about their alleged

involvement with stealing the car speakers and disposing of the car.      Those allegations are

discussed in the affidavits filed by Skinner and Phillips, but as we have previously found, those

allegations are based on hearsay. Jordan also claims that the defense attorneys should have



                                               11
called witnesses familiar with the reputations of Nicholson and Holloway for truthfulness,

although no current affidavits stating that they were not known for truthfulness have been

submitted.

¶22.    Again, the affidavits submitted by Skinner and Phillips are largely based on hearsay, and

we discount them accordingly.          However, while it might be possible that there were some

minor grounds for impeachment of Nicholson and Holloway that counsel for the defense did

not discover prior to trial and did not cover in cross-examination, we find that Jordan has failed

to prove that if his counsel were deficient, he was prejudiced by such a deficiency. As noted

above, a criminal defendant is not entitled to errorless counsel. Mohr v. State, 584 So.2d at

430; Cabello v. State, 524 So.2d at 315. Upon a review of the entire record, we are unable to

find that any deficiency by the attorneys prejudiced Jordan. Jordan admitted that he knew about

the plan to rob and kill someone, that he helped pick out Roberts as the robbery victim, that he

fired a shot at Roberts during the robbery and that Roberts fell as a result of that shot. Jordan

led the police to the bodies and to where two of the guns used in the crime were hidden. We

find that there is no reasonable probability that the result would have been different if

Nicholson and Holloway had been cross-examined about the statements in the affidavits

attached to the petition. Therefore, Jordan’s petition fails to meet both of the requirements of

the Strickland test as to this issue. Accordingly, this issue is without merit.

                B. Expert Witnesses




                                                     12
¶23.       Jordan asserts that his attorneys were deficient in failing to retain a ballistics expert at

trial.   He alleges that his attorneys should have sought an independent ballistics expert who

might have determined which pistol fired the fatal shots.         The State’s pathologist, Dr. Steven

Hayne, and the State’s ballistics expert, Steve Byrd, were unable to state definitively which

pistol had caused the respective wounds to Roberts and Bradley because the bullets had passed

through the heads of both victims and only small bullet fragments had been found.

¶24.       Miss. Code Ann. § 99-39-9(1)(e) provides that a post-conviction relief petition shall

contain:

           (e) A specific statement of the facts which are not within the prisoner's personal
           knowledge. The motion shall state how or by whom said facts will be proven.
           Affidavits of the witnesses who will testify and copies of documents or records
           that will be offered shall be attached to the motion. The affidavits of other
           persons and the copies of documents and records may be excused upon a
           showing, which shall be specifically detailed in the motion, of good cause why
           they cannot be obtained. This showing shall state what the prisoner has done to
           attempt to obtain the affidavits, records and documents, the production of which
           he requests the court to excuse.

Jordan has failed to submit documentation from any expert who now claims that he has

reviewed the evidence presented at trial and can now testify about which pistol caused which

entrance wound. We decline to speculate about such testimony, and we are unable to judge any

impact that the testimony might have had on the outcome. We find no ineffective assistance

of counsel in the trial attorneys’ failure to call a ballistics expert because such an examination

could have conclusively determined that Jordan fired the fatal shot. Because Jordan has failed

to demonstrate deficient performance and actual prejudice as required by Strickland, he is

entitled to no relief on this portion of his claim.

                                                      13
¶25.    Parenthetically, we note that it made little practical difference who fired which shots.

Under Mississippi’s accomplice liability statutes, both Edwards and Jordan were equally

culpable for the capital murders where the two conspired to rob and kill Roberts. Miss. Code

Ann. § 97-1-3 (Rev. 2000) provides that “[e]very person who shall be an accessory to any

felony, before the fact, shall be deemed and considered a principal, and shall be indicted and

punished as such; and this whether the principal have been previously convicted or not.” This

Court held in Crawford v. State, 133 Miss. 147, 97 So. 534 (1923), that to aid and abet in the

commission of a felony, one must “do something that will incite, encourage, or assist the

actual perpetrator in the commission of the crime.” See also Vaughn v. State, 712 So.2d 721

(Miss. 1998); Malone v. State, 486 So.2d 360, 363 (Miss. 1986) (“One who is an accessory

before the fact or one who aids and abets necessarily enters into an agreement that an unlawful

act will be done. He participates in the design of the felony.”).

¶26.    Jordan was guilty of capital murder as a principal whether the fatal shot came from his

pistol or Edwards’s pistol. Jordan admitted that he participated in the planning of the robbery,

that he and Edwards discussed killing the eventual victim, that he fired at least one shot and that

he helped to dispose of the bodies and the incriminating evidence. It mattered not whether

Jordan had produced an expert who could have said that the fatal shot came from a certain

pistol. Therefore, we find this issue to be without merit.

                C. Discovery




                                                     14
¶27.    Jordan next alleges that his attorneys were ineffective in failing to seek complete

discovery from the State.       He claims that the discovery sought by the defense attorneys was

insufficient, but he provides no specific examples of any helpful evidence that would have been

produced had the discovery request been more thorough.

¶28.    More than seven months prior to trial, Jordan’s attorneys filed a “Motion to Disclose

Evidence” in which they sought discovery of “[a]ny evidence in the possession, custody or

control of the State or which may become known or which through due diligence may be

learned from the investigating officers or witnesses in the case which relates to any issue in

the case for Defendant to prepare for trial . . . .” The motion included over seven pages of

specific requests including names of witnesses known to the State, the entire files of the

investigating officers, copies and tapes of any recorded confessions or statements, any

scientific tests, any physical evidence, and any exculpatory evidence. From the record, we find

that Jordan has not shown deficient performance, as his attorneys filed a motion for discovery

specifically requesting the items Jordan now contends should have been requested.

¶29.    As with the deficiency prong of Strickland, Jordan has failed to show that he was

prejudiced by the actions of his counsel. We find that the request for discovery filed by

Jordan’s trial counsel was more than adequate and that Jordan has made no showing of

ineffective assistance of counsel on this claim. Because Jordan has failed to demonstrate

deficient performance and actual prejudice as required by Strickland, he is entitled to no relief

on this issue, which we find to be meritless.

                D. Voir Dire

                                                 15
¶30.    Jordan alleges that the voir dire conducted by his attorneys was insufficient. He claims

that his attorneys failed to conduct an adequate voir dire on the meaning of mitigating

circumstances.2

¶31.    In Russell v. State, 849 So.2d 95 (Miss. 2003), this Court denied post-conviction relief

on the petitioner’s allegation that his attorneys were ineffective in failing to adequately voir

dire jurors about potential biases. We held that no relief was merited “absent some specific

allegation as to any specific juror.” Id. at 131.

¶32.    Jordan’s petition fails to single out any juror who should have been excluded for cause

on the basis of that juror having a preconceived opinion that the death penalty was the only

appropriate penalty in this case and that he or she would not consider the mitigating evidence

presented on Jordan’s behalf. Jordan also fails to direct this Court to a specific instance in the

record where a juror stated that he or she had such strong opinions in favor of the death penalty

so as to render impossible consideration of mitigating evidence in making a fair determination

as to whether life imprisonment was the more appropriate punishment.

¶33.    In reviewing the record, we find that trial counsel fully examined the venire members

concerning whether they would automatically impose the sentence of death. Defense counsel

discussed each mitigating factor and questioned the jurors as to whether they would consider

those factors during their deliberation on sentencing if the trial reached that point. Those




        2
          In a footnote, Jordan also contends that his trial attorneys failed to voir dire the potential jurors for
evidence of racial bias. He does not argue that claim in the petition, and we, therefore, decline to address
it further.

                                                       16
jurors who indicated that they would automatically impose the death sentence were excused

for cause.

¶34.    We find that counsel did in fact do a more than adequate job asking the jurors about

their feelings regarding applying the mitigating factors, and we find no constitutionally

defective    assistance of counsel here. Jordan’s petition fails to demonstrate deficient

performance by trial counsel and resulting prejudice. Therefore, he is entitled to no relief on

this portion of his claim.

                 E. Parole Eligibility

¶35.    Jordan maintains that his attorneys were ineffective in failing to request that the jury

be instructed that a life sentence for capital murder amounted to a life sentence without parole.

He claims that the jury may have been concerned that if Jordan were sentenced to life that he

might eventually be released on parole when there was no such possibility.

¶36.    The record shows that counsel for Jordan did inform the jury that Jordan would never

be eligible for parole. Both in voir dire and in his closing arguments, Jordan’s attorney stated

that if the jury sentenced Jordan to a life sentence that Jordan would spend the rest of his life

in prison.    Further, counsel for Jordan submitted two jury instructions, which if given, would

have informed the jury that a life sentence meant that there was no chance of parole eligibility.

The trial court declined to give those instructions after finding that other instructions

adequately explained the sentencing options. Jordan did not argue on appeal that the failure to

give those instructions was erroneous. The current claim is that his attorneys were ineffective

in failing to argue that life imprisonment meant life without parole. The record reveals that the

                                                  17
attorneys did in fact make that argument, both orally in closing argument and in the proposed

jury instructions. If a trial judge refuses an offered instruction, the petitioner may not use that

refusal to demonstrate ineffectiveness of counsel.

¶37.    Jordan’s petition fails to demonstrate deficient performance because trial counsel

presented two specific instructions on this point for consideration by the trial court. Thus, trial

counsel attempted to do, by instruction, what Jordan is now contending his trial counsel did not

do. Further, as pointed out above, Jordan can show no actual prejudice because the jury was

informed that life imprisonment meant life without parole because trial counsel argued this

in his closing argument. Jordan’s petition fails to meet both Strickland requirements;

therefore, we find Jordan’s claim of ineffective assistance of counsel to be without merit.

                F. Mitigation Evidence

¶38.    Jordan claims that his attorneys failed to investigate the case they presented in

mitigation during the sentencing phase and they failed to prepare the witnesses they intended

to call, thus presenting inadequate mitigation evidence at the penalty phase. Jordan called nine

witnesses in the sentencing phase.       Those witnesses included Nannie Craft, Jordan’s mother;

Dr. Reginald White, the court appointed psychiatrist; Rev. James W. Hare, Jordan’s minister;

Nobia Hare, the minister’s wife and a Jordan family friend; Jethro Trotter, Jordan’s neighbor

and former school bus driver; Edna Johnson, a family friend who had known Jordan since

childhood; Officer John Riley, a jailor; and Charles McCree, a jail trustee. Frontrell Edwards

was also called as a witness during the penalty phase; however, he invoked his Fifth Amendment

rights and refused to answer any substantive questions. Jordan’s petition focuses on his

                                                     18
attorneys’ allegedly deficient performance in preparing his mother and Dr. White to testify

during the penalty phase of the trial.

                 1. Nannie Craft

¶39.    Jordan first claims that defense counsel should have prepared his mother, Nannie Craft,

to testify about various childhood illnesses and injuries he claims he suffered.    Jordan argues

that his mother should have testified about his delayed development as a child, that he had

attended special education classes, and that he had grown up in poverty.           Defense counsel

attempted to go into Jordan’s early childhood medical and developmental history; however, the

trial court ruled that unless these medical problems continued to affect him throughout his

adult life, they were not relevant. Therefore, the record shows that counsel was aware of the

early childhood illness, but he was not allowed to address these areas with Craft due to

relevance. Further, Jordan submits no school or medical records or any other documentation

supporting these claims; therefore, we have no way of ascertaining the relevance of any alleged

childhood illnesses or problems.

¶40.    Jordan also maintains that his attorneys should have clarified questions about Jordan’s

juvenile records. Jordan’s mother was cross-examined about whether Jordan had ever appeared

in youth court.     Craft testified that Jordan had been involved in youth court proceedings on

approximately three occasions, but she claimed that Frontrell Edwards and Jordan’s brother,

Michael, were the ones responsible for Jordan’s delinquent behavior. In a speaking objection,

Jordan’s attorney attempted to explain that “we don’t have anything to show that there was ever

any adjudication of delinquency, no order entering anything.      All we are talking about are

                                               19
charges against someone.” Counsel also explained in his closing argument that Jordan’s mother

had testified, as to the youth court matters, that “none of that was Kelvin’s fault according to

her, not one bit of that.    All of those things that he had gotten in trouble about through the

years, none of it was his fault; it was always someone else’s.”      Any confusion about Craft’s

youth court testimony was clarified by counsel.

¶41.    Jordan’s petition has not demonstrated deficient performance on the part of counsel,

nor has the petition shown any prejudice suffered by Jordan. Because Jordan has failed to meet

the requirements of the Strickland test, he is entitled to no relief as to this issue, which we

find to be without merit.

                2. Dr. Reginald White

¶42.    Jordan claims that neurological testing should have been performed to determine if he

suffered from any brain dysfunction or mental retardation.        He has not submitted any new

testing which would confirm any mental incapacity, and he does not support this argument with

any new evidence. We decline to find that the attorneys were deficient where Jordan has still

not produced any medical evidence which his prior attorneys should have found.

                3. Other Witnesses

¶43.    Additionally, Jordan has not submitted any substantial affidavits of witnesses who now

claim that they had relevant evidence which would have assisted the case in mitigation and that

they were willing to testify if they had been contacted or called by the defense attorneys.

Attorneys in a death penalty trial have a duty to investigate and present mitigation evidence for

the sentencing phase. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d

                                                  20
471 (2003); Simmons v. State, 869 So.2d 995, 1000-01 (Miss. 2004); Grayson v. State, 879

So.2d 1008, 1016-17 (Miss. 2004). We conclude that Jordan has not submitted sufficient

evidence of a breach of the duty of counsel to investigate and present mitigation evidence as

required, and we determine that counsels’ performance was not constitutionally ineffective

pursuant to Strickland. Taken as a whole, we find that the mitigation case was adequately

presented.     The defense called nine witnesses.    The defense was able to attempt to portray

Jordan as a mild-mannered, well-behaved young man who was susceptible to manipulation by

Frontrell Edwards.       The mere fact that the jury did not accept the defense’s argument that

Jordan’s life should be spared does not mean that the attorneys who made that argument were

ineffective. Because Jordan has failed to meet the requirements of the Strickland test, he is

entitled to no relief as to this issue.

                  G. Closing Argument During Sentencing Phase

¶44.     Jordan argues that counsel was deficient in failing to object to a statement made by the

prosecutor in his closing argument. Jordan argues that the prosecutor informed the jury that

they were not “being asked to kill anybody,” thus diminishing their responsibility for the

imposition of a sentence of death in violation of Caldwell v. Mississippi, 472 U.S. 320, 105

S.Ct. 2633, 86 L.Ed.2d 231 (1985). However, the complete statement made by the prosecutor

was:

         You are not being asked to kill anybody. You are being asked to look at the
         evidence in this case. And if the aggravating factors outweigh the mitigating
         factors, you are being asked to give a sentence that is authorized under the law,
         a sentence that the State of Mississippi recognizes and authorizes you to give.


                                                21
This comment was in response to defense counsel’s statements made during closing argument.

Counsel stated that the jury had Jordan’s life in their hands and that the jury had “the awful job”

of deciding “whether this man is so beyond redemption that he should be eliminated from the

human community.” Counsel further argued that:

        You know, we have always had, all of us have always had to come to grips with
        killing somebody. You and I could be driving down the road and a dog runs out
        in front of us. And you know what we do? We go to great lengths to dodge that
        dog to try and avoid running over it. I suggest to you, ladies and gentlemen, that
        in our world and in our society, executing someone is intentionally doing what
        I just said.

¶45.    The comments made by the prosecutor are not in violation of Caldwell. In fact, these

appropriate statements made during the State’s closing arguments in the sentencing phase of

Jordan’s trial pales in comparison to the prosecutor’s statements made during the closing

arguments in Bobby Caldwell’s trial.3     In Caldwell, defense counsel argued to the jury during

the sentencing phase that life was precious and that the jury had an “awesome responsibility”

in deciding whether Bobby Caldwell would live or die.           In the State’s rebuttal during closing

arguments, the prosecutor sought to lessen in the minds of the jurors their solemn

responsibility and role in this state’s statutory capital sentencing scheme.      The assistant district

attorney argued, inter alia:

        ASSISTANT DISTRICT ATTORNEY: Ladies and gentlemen, I intend to be brief.
        I’m in complete disagreement with the approach the defense has taken. I don’t
        think it’s fair. I think it’s unfair. I think the lawyers know better. Now, they
        would have you believe that you’re going to kill this man and they know – they


        3
          Caldwell’s conviction and death sentence were affirmed on direct appeal to this Court. Caldwell
v. State, 443 So.2d 806 (Miss. 1983).

                                                  22
        know that your decision is not the final decision. My God, how unfair can you
        be? Your job is reviewable. They know it. Yet they......

        COUNSEL FOR DEFENDANT: Your Honor, I’m going to object to this
        statement. It’s out of order.

        ASSISTANT DISTRICT ATTORNEY: Your Honor, throughout their argument,
        they said this panel was going to kill this man. I think that’s terribly unfair.

        THE COURT: Alright, go on and make the full expression so the Jury will not
        be confused. I think it proper that the jury realizes that it is reviewable
        automatically as the death penalty commands. I think that information is now
        needed by the Jury so they will not be confused.

        ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they attempted
        to give you the opposite, sparing the truth. They said “Thou shalt not kill.” If
        that applies to him, it applies to you, insinuating that your decision is the final
        decision and that they’re gonna take Bobby Caldwell out in front of this
        Courthouse in moments and string him up and that is terribly, terribly unfair.
        For they know, as I know, and as [the trial judge] has told you, that the decision
        you render is automatically reviewable by the Supreme Court. Automatically,
        and I think it’s unfair and I don’t mind telling them so.

472. U.S. at 325-26, 105 S.Ct. at 2637-38.

¶46.    The United States Supreme Court vacated Caldwell’s death sentence since the

prosecutor had led the jury “to believe that the responsibility for determining the

appropriateness of the defendant’s death rests elsewhere.”    472 U.S. at 328-29, 105 S.Ct. at

2639.     Obviously, under Mississippi’s statutory capital sentencing scheme, notwithstanding

the fact that a death sentence imposition will be reviewed by many judges, a capital defendant

will be subjected to the death penalty only if so found by the jury. The judge alone can never

impose the death penalty. See Miss. Code Ann. § 99-19-103 (Rev. 2000).




                                               23
¶47.   The objectionable comments by the prosecutor in Jordan’s case are not comparable to

those made by the prosecutor in Caldwell. This issue is without merit.




               H. Testimony of Charles McCree

¶48.   Charles McCree was the Clarke County jail trustee who testified in the sentencing

phase that Edwards had told him that he had killed Roberts and Bradley and that Jordan had been

opposed to the killings.     Jordan now claims that his attorneys at trial should have called

McCree during the guilt phase.

¶49.   The State argues that McCree’s testimony would have been of little value at the guilt

phase because Jordan had confessed his involvement in the robbery plan, had known that the

victim would be killed, and had in fact fired a shot at Roberts. Under this State’s laws

concerning principals and accomplice culpability, it mattered not whether Edwards had

admitted that he shot Roberts and Bradley since Jordan had admitted from the beginning that

he participated in the robbery and killing. The State further maintains that McCree’s testimony

had potentially more impact at the sentencing phase where the defense’s theory was that

Edwards was the leader and that Jordan had been influenced by Edwards.

¶50.   Decisions regarding which witnesses to call and when to call them are within the realm

of trial strategy. Gray v. State, 887 So.2d 158, 168 (Miss. 2004), citing King v. State, 679

So.2d 208, 211 (Miss. 1996).       By calling McCree during the penalty phase, we acknowledge

that defense counsel for Jordan knew about McCree and his testimony. Defense counsel may

well have considered McCree’s potential testimony and determined that it would be more

                                                 24
effective at the sentencing phase. We must presume that counsel for the defendant was

competent. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Stringer, 454 So.2d at 477. There

is no reasonable probability that the outcome of this trial would have been different had

McCree testified during the guilt phase of the trial.

¶51.    We find that the decision to call McCree at the sentencing phase and not at the guilt

phase was acceptable trial strategy. It is certainly possible that the jury would have given more

weight to McCree’s testimony in the sentencing phase.              Furthermore, even if we were to

alternatively find that the decision not to present McCree’s testimony at the guilt phase was

deficient, which we do not, we find no prejudice to Jordan under the second Strickland prong.

Again, Jordan had admitted complicity in the plan to find and rob a victim for cash to go to a

football game. He had confessed that he knew that the plan was to kill the victim to avoid

detection. He admitted that he had suggested Roberts as the gas station customer to rob. He

admitted that he fired one shot at Roberts and that he had helped dispose of the bodies. The fact

that Edwards had also confessed his complicity would have had no effect on the issue of

whether Jordan was also guilty. Because Jordan has failed to meet the requirements of the

Strickland test, he is entitled to no relief as to this issue.

                 I. Preservation of Issues for Appeal

¶52.    Jordan maintains that his attorneys at trial were deficient in failing to preserve two

issues for the eventual direct appeal.         He first claims that his attorneys should have objected

to the improper use of juvenile court records at the sentencing phase. As discussed above, the



                                                        25
State cross-examined Jordan’s mother after she testified at the sentencing hearing that Jordan

had been a peaceful child who had not been in much trouble. The prosecutor used youth court

records to show that Kelvin and others had been charged with various delinquent acts.        The

mother explained that Kelvin had been brought into youth court on several occasions but that

it had always been for acts actually done by his cousin Frontrell or his brother Michael. Jordan

now claims that his attorneys should have objected to the use of the youth court records.

¶53.    The record reveals that counsel did in fact pose two objections during the cross-

examination about the youth court records. Counsel first objected to the questioning about the

records because the records were not in the record and the prosecutor was “arguing facts not

in existence.” That objection was overruled. The defense attorney later objected to the line

of questioning because “we don’t have anything to show that there was ever any adjudication

of delinquency, no order entering anything.         All we are talking about are charges against

someone.” Additionally, this issue was raised on direct appeal, where this Court found that the

cross-examination about the youth court records was proper. Jordan, 728 So.2d at 1098. We

now find that there is no basis for a finding of ineffective assistance of counsel where the

attorneys did raise relevant objections and where this Court has already found that there was

no error in the use of the youth court records.

¶54.    Jordan also claims that his attorneys should have objected to the State’s argument at the

penalty phase that the jury was not responsible for killing the defendant if it imposed the death

sentence.   He claims that argument stripped the jury’s sense of responsibility for returning a

sentence of death. For the same reasons as discussed in III G., above, we find that Jordan has

                                                  26
failed to meet the requirements of the Strickland test, and he is thus entitled to no relief as

to this issue.

                 J. Defense of International Treaties

¶55.     Jordan alleges that his attorneys were ineffective in failing to raise various international

treaties as defenses to imposition of the death penalty.     He cites the International Covenant on

Civil and Political Rights, the International Convention on the Elimination of All Forms of

Racial Discrimination, the Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, the American Convention on Human Rights, the International

Covenant on Economic, Social and Cultural Rights, and other treaties enacted by the United

States Senate or signed by the President of the United States. He claims that those treaties are

to be enforced under the supremacy clause and that they prohibit his execution.

¶56.     In considering death penalty cases via direct appeal and post-conviction relief

proceedings, we apply the Constitution of the United States, the Constitution and laws of the

State of Mississippi, and case law as handed down by the United States Supreme Court and this

Court. Of course, we also look to federal court decisions from this State and federal and state

court cases from our sister states for persuasive guidance.            On this note, however, we

unhesitatingly acknowledge the United States Supreme Court’s recent decision in Roper v.

Simmons, 543 U.S.         , 125 S.Ct. 1183, 161 L. Ed. 2d 1 (March 1, 2005), where the Court in

a 5-4 decision declared that death penalty imposition upon offenders who were under the age

of 18 when the crimes were committed was violative of the Eighth and Fourteenth



                                                  27
Amendments to our federal constitution. In reaching this conclusion, the sharply divided Court

relied in part on national and international studies, covenants and treaties.      Such reliance

generated scathing dissents from Justice O’Connor and Justice Scalia, with Chief Justice

Rehnquist and Justice Thomas joining Justice Scalia’s dissent. However, in our case today, we

note that Jordan’s date of birth is December 25, 1976, and the date of these murders was

October 5, 1995. Inasmuch as Jordan was 18 years of age – and only 81 days away from his

19th birthday – at the time of the brutal murders of Tony Roberts and 2-year old Codera

Bradley, we decline to rely on international laws, covenants and treaties in determining whether

the death penalty is appropriate.

¶57.     Therefore, defense counsel was not ineffective in failing to raise claims under these

various treaties, covenants and conventions, and Jordan’s petition has failed to allege any actual

prejudice in the failure to raise such claims. We find this issue to be without merit. Because

Jordan has failed to meet the requirements of the Strickland test, he is entitled to no relief as

to this issue.

         IV. Admission of Evidence at the Sentencing Phase

¶58.     Jordan claims that the trial court should have allowed him to delve into Frontrell

Edwards’s alleged intimidation or domination of Jordan.       The trial court allowed Jordan’s

mother to testify that Edwards had once shot Jordan.         However, the trial court ruled that

Jordan’s mother, Nannie Craft, could not testify further about the event because she had no

firsthand knowledge of the shooting. Jordan also claims that the trial court should have allowed

him to put on evidence that he suffered from several illnesses as a child. As this Court has

                                               28
previously stated, the trial court ruled that without some showing that the childhood illnesses

had an impact on Jordan as an adult, the proposed testimony was irrelevant.

¶59.    These claims are barred for failure to raise the claim on direct appeal of this case. No

claim was presented to this Court on the basis of the trial court’s sustaining of the objection

to this line of questioning. Such a claim can not be raised for the first time on post-conviction

review. See Miss. Code Ann. § 99-39-21(1); Bishop v. State, 882 So. 2d 135, 149 (Miss.

2004); Grayson v. State, 879 So. 2d 1009, 1020 (Miss. 2004). By failing to present proof to

support these assertions, Jordan’s petition has failed to demonstrate cause and actual prejudice

as required by Miss. Code Ann. § 99-39-21; therefore, the procedural bar is not waived.

¶60.    Procedural bar aside, Jordan makes no argument under this issue, and he cites no

authority. Thus, we decline to address these claims. Brown v. State, 798 So.2d 481, 497, 506

(Miss. 2001) (citing Holland v. State, 705 So.2d 307, 329 (Miss. 1997)).          See also Gary v.

State, 760 So.2d 743, 754 (Miss. 2000) (this Court may, at its discretion, refuse to review an

assignment of error not supported by authority yet this is not an absolute bar). We find this

issue to be without merit.

¶61.    The trial court held a hearing on the issue of childhood illnesses. Finding that these

illnesses did not affect Jordan during his adult life, the trial court found them to be irrelevant.

We find this ruling to be proper. Also as previously stated, Jordan was able to argue that he

was, at times, dominated by other people, especially Frontrell Edwards. Although we hold these

claims are procedurally barred, they are likewise without merit.



                                                   29
        V. The State’s Conflicting Theories of the Case

¶62.    Jordan claims that the State’s theory at his trial conflicts with the State’s theory at

Edwards’s later trial for the same two capital murders.        During closing argument in the guilt

phase of Jordan’s trial, the District Attorney argued that “this man right over here [Jordan] fired

that fatal shot.”     Later, in Edwards’s trial, the District Attorney argued that Edwards “is

responsible for both of these murders.”         Jordan claims that the theories conflict and that he

was deprived of a fair trial and sentencing hearing.

¶63.    This claim was not raised at trial or on direct appeal; therefore, this claim is barred from

consideration for the first time on post-conviction review. See Miss. Code Ann. § 99-39-21.

See also Wiley v. State, 751 So. 2d 1193, 1208 (Miss. 1999).

¶64.    Procedural bar aside, we find that the statements do not conflict. The statement that

Jordan fired the shot that killed Roberts is consistent with the State’s theory in Jordan’s trial

and with the evidence. Jordan admitted that he fired one shot at Roberts after Edwards shot

him first. Jordan stated that his shot caused Roberts to fall. Roberts was shot twice in the head

with only one of the wounds being fatal. That statement does not contradict the District

Attorney’s later argument that Edwards was responsible for both murders. In fact, both Edwards

and Jordan were responsible for both murders by participating in the plan to rob and kill the

victim in order to prevent later identification and by shooting at Roberts and disposing of the

bodies. This argument does not demonstrate the cause and actual prejudice necessary to

overcome the procedural bar to the consideration of this claim for the first time on post-

conviction review. We find no merit in this issue.

                                                       30
         VI. Disproportionate Sentence

¶65.     Frontrell Edwards’s trial commenced after Jordan’s, and he was also convicted of two

counts of capital murder and was sentenced to death.             On appeal, this Court reversed the

convictions and sentences on several bases and the matter was remanded to the circuit court

for retrial.   Edwards v. State, 737 So.2d 275 (Miss. 1999).               Without attaching any court

records, affidavits or other proof as required by Miss. Code Ann. § 99-39-9(1)(e), Jordan

contends that Edwards entered into a plea agreement for a sentence of life without parole.

Jordan claims that Edwards was the leader in the robbery scheme, that he had a motive and plan

to kill Roberts, and that Jordan was an unwilling participant in the robbery and murder scheme.

Therefore, he claims that he is less culpable than Edwards and that their sentences are

disproportionate. However, Jordan’s petition has failed to support his claim that he was not an

active participant in these murders with the proof required by the post-conviction statutes.

¶66.     First, we find that the proportionality question was decided in Jordan’s direct appeal.

There, this Court reviewed the proportionality of Jordan’s death penalty and found that the

sentence was not disproportionate when compared to other death penalty situations. Jordan,

728 So. 2d at 1099-1100. Therefore, the issue of the proportionality of the sentence of death

in this case is res judicata. See Miss. Code Ann. § 99-39-21(3); Doss v. State, 882 So. 2d 176

(Miss. 2004); Bishop v. State, 882 So. 2d 135 (Miss. 2004) (relitigation of disproportionality

argument barred by Miss. Code Ann. § 99-39-21(3)).




                                                   31
¶67.    Alternatively, this issue is without merit. Jordan now argues that his sentence is

disproportionate to the sentence ultimately imposed upon Frontrell Edwards. On direct appeal,

this Court determined that Jordan was a major actor in this double murder. As previously

stated, Jordan confessed to his actions in this case. He knew and approved of the plan to rob

and kill a convenient gas station customer. He pointed out Roberts as a likely prospect.      He

had a pistol in his possession when he encountered Roberts and his helpless two-year old child.

He fired at least one shot at Roberts, and he helped dispose of the body. There is very little

evidence that Jordan was less than a willing accomplice in these crimes.

¶68.    In McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), the

U.S. Supreme Court stated:

        McCleskey's argument that the Constitution condemns the discretion allowed
        decision makers in the Georgia capital sentencing system is antithetical to the
        fundamental role of discretion in our criminal justice system. Discretion in the
        criminal justice system offers substantial benefits to the criminal defendant.
        Not only can a jury decline to impose the death sentence, it can decline to
        convict or choose to convict of a lesser offense. Whereas decisions against a
        defendant’s interest may be reversed by the trial judge or on appeal, these
        discretionary exercises of leniency are final and unreviewable. Similarly, the
        capacity of prosecutorial discretion to provide individualized justice is “firmly
        entrenched in American law.” As we have noted, a prosecutor can decline to
        charge, offer a plea bargain, or decline to seek a death sentence in any particular
        case. Of course, “the power to be lenient [also] is the power to discriminate,”
        but a capital punishment system that did not allow for discretionary acts of
        leniency “would be totally alien to our notions of criminal justice.”

Id. at 311-12, 107 S.Ct. at 1777-78, 95 L.Ed.2d at 291 (citations & footnotes omitted). See

also Ladner v. State, 584 So.2d 743, 750-51 (Miss. 1991). The State is entitled to exercise

some discretion in deciding against whom to pursue the death penalty. This Court has held that


                                                  32
even though a co-defendant might have received a life sentence, there is no prohibition against

another co-defendant being sentenced to death. Walker v. State, 671 So.2d 581 (Miss. 1995);

Mack v. State, 650 So.2d 1289 (Miss. 1994); Ladner v. State, 584 So.2d 743 (Miss. 1991);

Culberson v. State, 379 So.2d 499 (Miss. 1979).

¶69.    In the federal statutory framework, there is a specific mitigating factor which states that

the jury may consider whether “[a]nother defendant or defendants, equally culpable in the

crime, will not be punished by death.” 18 U.S.C. § 3592(a)(4). Thus, in federal death penalty

actions, the jury can consider whether some other defendant has escaped the death penalty and

whether that entitles the subject defendant to any leniency.        There is, however, no requirement

that all equally culpable defendants receive the same punishment.

¶70.    Jordan relies on Randall v. State, 806 So.2d 185 (Miss. 2001), where this Court found

that the defendant’s death sentence was disproportionate. There, five defendants robbed Eugene

Daniels and killed him in the course of the robbery at his apartment. The State was unable to

prove definitively which defendant was the actual triggerman. The jury found that Randall had

contemplated that lethal force would be employed but the jury did not find that Randall actually

killed the victim, attempted to kill him, or intended that a killing take place. Id. at 233-34. In

contrast, Jordan’s jury found that Jordan had attempted to kill Roberts; that Jordan had intended

that the killing of Roberts take place; and, that Jordan contemplated that lethal force would be

employed. The jury further found that Jordan intended that the killing of Codera Bradley take

place and that he had contemplated prior to the killing that lethal force would be employed.



                                                  33
¶71.   Under the circumstances here, we find that the lone fact that Jordan received the death

penalty while Edwards did not is insufficient to establish a disproportionate or constitutionally

excessive sentence.     After a full review of the record and after considering all of the

aggravating and mitigating circumstances presented at trial, and after a comparison with the

circumstances of other capital murder cases, we are of the opinion that imposition of the death

penalty in Jordan’s case is not disproportionate or excessive. Thus, this issue is without merit.

       VII. Atkins v. Virginia and Ring v. Arizona

¶72.   On June 19, 2003, Jordan filed an amended petition for post-conviction relief. Jordan’s

amended petition is based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d

335 (2002) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

¶73.   In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the

United States Supreme Court held that the execution of mentally retarded inmates amounted

to cruel and unusual punishment and was therefore prohibited by the Eighth Amendment.          In

his first supplement to the petition for post-conviction relief, Jordan alleges that he has

suffered from “mental retardation and its attendant adaptive deficits since early childhood.”

The only indications of mental retardation he provides are that his childhood development was

slow, that he did not learn to walk until he was two years old, that he suffered from meningitis

as a child which might have caused brain injury; and, that he was placed in special education

classes in school.    None of those allegations are supported by any affidavits of mental health




                                               34
professionals or by any documentary or medical evidence. Based on these allegations alone,

Jordan seeks a hearing on whether he is mentally retarded.

¶74.   On May 20, 2004, we announced the requirements for obtaining a hearing to determine

whether a capital defendant is mentally retarded in Chase v. State, 873 So. 2d 1013 (Miss.

2004). This Court held:

       With the sole exception discussed below, no defendant may be granted a hearing
       on the issue of Eighth Amendment protection from execution, due to alleged
       mental retardation unless, prior to the expiration of the deadline set by the trial
       court for filing motions, the defendant shall have filed with the trial court a
       motion, seeking such hearing. The defendant must attach to the motion an
       affidavit from at least one expert, qualified as described above, who opines, to
       a reasonable degree of certainty, that: (1) the defendant has a combined
       Intelligence Quotient ("IQ") of 75 or below, and; (2) in the opinion of the expert,
       there is a reasonable basis to believe that, upon further testing, the defendant
       will be found to be mentally retarded, as defined herein.

       Upon receiving such motion with attached affidavit, and any response filed by
       the State, the trial court shall provide a reasonable amount of time for testing the
       defendant for mental retardation. Thereafter, the trial court shall set a hearing
       on the motion, and the matter shall proceed.

Id. at 1029. We further held:

       We hold that no defendant may be adjudged mentally retarded for purposes of
       the Eighth Amendment, unless such defendant produces, at a minimum, an expert
       who expresses an opinion, to a reasonable degree of certainty, that:
       1. The defendant is mentally retarded, as that term is defined by the American
       Association on Mental Retardation and/or The American Psychiatric
       Association;
       2. The defendant has completed the Minnesota Multi phasic Personality
       Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not
       malingering.

       Such expert must be a licensed psychologist or psychiatrist, qualified as an
       expert in the field of assessing mental retardation, and further qualified as an


                                                 35
        expert in the administration and interpretation of tests, and in the evaluation of
        persons, for purposes of determining mental retardation.

        Upon meeting this initial requirement to go forward, the defendant may present
        such other opinions and evidence as the trial court may allow pursuant to the
        Mississippi Rules of Evidence.

Id. On August 26, 2004, this Court further addressed the question of what is required in order

to obtain a hearing under Atkins in Wiley v. State, 890 So. 2d 892 (Miss. 2004). This Court

in Wiley held:

        This Court spoke of evolving standards in Chase, 873 So.2d at 1024. We now
        find it necessary to expand on the procedure to be used in reaching a
        determination of mental retardation by holding that this Court will consider the
        entire record before it in deciding whether to grant an Atkins hearing.

        The standard set out by this Court in Chase, 873 So.2d at 1028, and cited herein
        establishes the minimum requirements for a person to be adjudged mentally
        retarded. This Court said "[n]o defendant may be adjudged mentally retarded ...
        unless" that defendant produces an expert opinion that the defendant is retarded
        and has completed the MMPI-II. That does not mean that every defendant who
        submits an expert opinion to this Court and has completed the MMPI-II will be
        adjudged mentally retarded for the purposes of Atkins. Further, Wiley does not
        even assert that he has completed the MMPI-II or some similar test to show that
        he is not malingering. There is a mention of the MMPI-II in the 1987 affidavit
        of Dr. Fox, but nothing in this most recent motion.

890 So. 2d at 897-98.

¶75.    Jordan’s Atkins claim is unsupported by any affidavits or records indicating that he has

an I.Q. of less than 76. Further, there is no indication that he has completed the MMPI-II.

Jordan’s petition has failed to support his claim of retardation under the precedent announced

in Chase; therefore, Jordan is not entitled to an evidentiary hearing on his claim of mental

retardation.


                                                  36
¶76.   Jordan also claims that the United States Supreme Court’s decision in Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requires that the jury be allowed to

determine whether he is mentally retarded.        On the same day that the petitioner filed the

amended petition raising the Ring claim, this Court decided this same issue in Russell v. State,

849 So.2d 95 (Miss. 2003).     There, the Court stated that “[w]e find that not being mentally

retarded is not an aggravating factor necessary for imposition of the death penalty, and Ring

has no application to an Atkins determination.” Id. at 148.      This precise issue has previously

been decided by this Court adversely to Jordan’s position, and we rely on the previous holding.

¶77.   Jordan also claims that the Ring decision and its predecessor Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), require a new trial because the

aggravating factors were not included in the indictment. As with the prior issue, this Court has

addressed these identical claims in a previous decision.     In Berry v. State, 882 So.2d 157

(Miss. 2004), this Court determined that Ring and Apprendi have no applicability to

Mississippi’s capital murder sentencing scheme.     Id. at 12.   This issue is thus without merit.

       VIII. Cruel and Unusual Punishment

¶78.   Jordan argues that lethal injection causes undue suffering and lingering death. He

claims that the unnecessary infliction of pain and the prolonged period of pain experienced by

the condemned person violates evolving standards of decency and amounts to cruel and unusual

punishment. Jordan failed to make any claim relating to the method of execution at trial or on

direct appeal. Therefore, this claim is barred for consideration for the first time on application



                                               37
for leave to seek post-conviction relief. See Miss. Code Ann. § 99-39-21(1); Bishop v. State,

882 So. 2d 135, 149 (Miss. 2004); Grayson v. State, 879 So. 2d 1009, 1020 (Miss. 2004).

Notwithstanding the procedural bar, this issue is without merit.

¶79.      In support of his allegations, Jordan cites only Nelson v. Campbell, 541 U.S. 637, 124

S.Ct 2117, 158 L.Ed.2d 294 (2004). At the time of the filing of Jordan’s amended petition, the

U.S. Supreme Court had granted certiorari in Nelson. Since then, the opinion has been issued.

In Nelson, an Alabama death row inmate sought to file a 42 U.S.C. §1983 action challenging

Alabama’s proposed lethal injection procedure. Nelson had vein damage due to years of drug

use and lethal injection by conventional needle procedures would not work on his veins.         He

filed a section 1983 action challenging the “cut down” injection procedure in which a vein in

his arm or leg would be catheterized prior to the legal injection. The lower courts determined

that section 1983 was not a proper vehicle to challenge the “cut down” procedure. The U.S.

Supreme Court ruled that section 1983 was available in the petitioner’s attempts to gain

injunctive relief.   Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924

(2004).     Notably, the Court did not rule on the constitutionality of lethal injection or even on

whether the proposed “cut down” procedure amounted to cruel and unusual punishment. The

decision is merely procedural and is therefore inapplicable here.

¶80.      Jordan fails to support his claim that lethal injection is a cruel and unusual method of

execution with any sworn proof as is required by Miss. Code Ann. § 99-39-9(1)(e). This Court

has also recently decided that Mississippi’s lethal injection procedure does not amount to



                                                   38
cruel and unusual punishment and is not a constitutional deprivation.     Russell, 849 So.2d at

144-45. We find this issue to be without merit.

         IX. Capital Sentencing Scheme

¶81.     Jordan alleges that “Mississippi’s capital sentencing scheme creates a substantial risk

that death will be inflicted in an arbitrary and capricious manner on a defendant convicted of

felony murder.”       Jordan does not specifically argue any deficiencies in Mississippi’s capital

punishment framework. Jordan failed to make any claim relating to the capital sentencing

scheme at trial or on direct appeal. Therefore, this claim is barred for consideration for the

first time on this post-conviction motion. See Miss. Code Ann. § 99-39-21(1); Bishop v.

State, 882 So. 2d 135, 149 (Miss. 2004); Grayson v. State, 879 So. 2d 1009, 1020 (Miss.

2004).

¶82.     Procedural bar aside, we find no constitutional deficiencies in Miss. Code Ann. §§ 99-

19-101 et seq. We have held that the Mississippi capital murder scheme is not unconstitutional

because the underlying felony is used both to elevate the crime to capital murder, and also used

later as an aggravating circumstance. West v. State, 725 So. 2d 872, 894 (Miss. 1998);

Ballenger v. State, 667 So. 2d 1242, 1260-61 (Miss. 1995). Therefore, this issue is without

merit, and Jordan is entitled to no relief.

         X. Jury Instructions

¶83.     Jordan alleges that the trial court erred in refusing to give certain proposed defense

instructions. This claim could have been raised on direct appeal and is procedurally barred in



                                                  39
these post-conviction relief proceedings.         See Miss. Code Ann. § 99-39-21(1); Bishop v.

State, 882 So. 2d 135, 149 (Miss. 2004); Grayson v. State, 879 So. 2d 1009, 1020 (Miss.

2004). Furthermore, Jordan cites no authority to support the claim that these instructions

should have been given. In Puckett v. State, 879 So. 2d 920 (Miss. 2004), this Court held that

issues unsupported by authority were considered abandoned by the petitioner. Jordan has shown

neither cause or actual prejudice in any attempt to overcome the bar to the consideration of

the merits on this claim.

¶84.    Nevertheless, we find the claim to be without merit. After a review of all of the

instructions, we find that the jury was properly instructed in the sentencing phase and that the

proposed instructions were properly refused.

¶85.    Jordan first contends Instruction D-4-S4 was improperly denied. This instruction deals

with aggravating factors outweighing mitigating factors. This Court has held that a capital

defendant is not entitled to an instruction stating that the aggravating circumstances must

outweigh the mitigating circumstances “beyond a reasonable doubt.”                  Beyond a reasonable

doubt is not the burden on the weighing process. The statute only requires the jury to find that

the mitigating factors outweigh the aggravating circumstances. Miss. Code Ann. § 99-19-

101(2)(c); Edwards v. State, 737 So. 2d 275 (Miss. 1999); Berry v. State, 703 So. 2d 269

(Miss. 1997).




        4
         From the record it appears that Jordan is referring to D-5-S, not D-4-S.

                                                     40
¶86.     As to instruction D-7-S, which states that each individual juror must find beyond a

reasonable doubt that death is the only appropriate punishment, we find this instruction was

also properly refused by the trial court. We have held that a defendant is not entitled to an

instruction informing the jury that it must find, beyond a reasonable doubt, that death is the

only appropriate penalty. The statute merely requires that (1) a unanimous finding, beyond a

reasonable doubt, of the existence of one or more of the aggravating circumstances; (2) there

are insufficient mitigating circumstances to outweigh the aggravating circumstances; and, (3)

a unanimous finding that the defendant should suffer death. Miss. Code Ann. § 99-19-103.

Simmons v. State, 805 So. 2d 452 (Miss. 2001); Williams v. State, 684 So. 2d 1179 (Miss.

1996).

¶87.     As to instruction D-8-S, this instruction would have informed the jury that Jordan will

never be eligible for pardon or parole. In addition to being a misstatement of law as worded,

this instruction was repetitive because the Court’s instruction, Instruction C-2-S, fully

informed the jury of its sentencing options. Therefore, the jury was fully informed through the

instructions that it could sentence Jordan to life imprisonment without the possibility of parole

or any type of early release. In addition to being procedurally barred, this issue is without

merit, and Jordan is entitled to no relief on this claim.

         XI. Voir Dire

¶88.     Jordan alleges that group voir dire, as opposed to individual voir dire, “created a climate

in which petitioner was unable to discern jurors’ true feelings and predilections” and prevented

the selection of a fair and impartial jury. This issue could have been raised at trial and on direct

                                                      41
appeal and is therefore barred here. Miss. Code Ann. § 99-39-21; Bishop v. State, 882 So.

2d 135, 149 (Miss. 2004).

¶89.     Notwithstanding the procedural bar, we find the issue to be without merit. Jordan was

allowed to interview several panel members in an individual setting when their answers to

questions required sensitive treatment. Jordan’s claim regarding the manner in which voir dire

was conducted is without merit.

         XII. Jury Qualifications

¶90.     Jordan next alleges that Miss. Code Ann. § 13-5-1, which requires jurors to be twenty-

one years of age or older, deprives him of his right to a jury of his peers. Jordan was eighteen

years old at the time of the murders. First, this issue could have been raised at trial and on

direct appeal and is therefore barred here. Miss. Code Ann. § 99-39-21(1); Bishop v. State,

882 So. 2d 135, 149 (Miss. 2004). Second, Jordan cites no authority here in support of his

claim.   Because Jordan’s petition fails to demonstrate cause and actual prejudice to overcome

this bar, this claim is barred from consideration.

¶91.     Notwithstanding the procedural bar, this Court has repeatedly rejected this argument,

most recently in Howell v. State, 860 So.2d 704, 723-24 (Miss. 2003), certiorari dismissed

as improvidently granted, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005), and has held the

provisions of Miss. Code Ann. § 13-5-1 are constitutional.     Therefore, this issue is without

merit, and Jordan is entitled to no relief on this claim.

         XIII. Cumulative Error in the Guilt Phase.



                                                      42
¶92.     As we have found find no error in the guilt phase, we necessarily find no cumulative

error requiring post-conviction relief. If there is “no reversible error in any part, so there is

no reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss. 1987). See also

Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003); Caston v. State, 823 So.2d 473, 509

(Miss. 2002); Hicks v. State, 812 So.2d 179, 195 (Miss. 2002). Therefore, this issue is

without merit.

         XIV.    Cumulative Error in the Penalty Phase.

¶93.     As we have found no error in the penalty phase, we necessarily find no cumulative error

requiring post-conviction relief. If there is “no reversible error in any part, so there is no

reversible error to the whole.” McFee v. State, 511 So.2d 130, 136 (Miss. 1987). See also

Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003); Caston v. State, 823 So.2d 473, 509

(Miss. 2002); Hicks v. State, 812 So.2d 179, 195 (Miss. 2002). Therefore, this issue is

without merit.

                                        CONCLUSION

¶94.     Jordan participated in a robbery which resulted in the brutal murders of Tony Roberts

and two-year-old Codera Bradley. He confessed that he took part in the crimes, and he

admitted that he shot Roberts. After finding Jordan guilty of two counts of capital murder, the

jury proceeded to consider all the evidence introduced at the guilt and penalty phases of the

trial.   Upon considering this evidence, including the aggravating and mitigating evidence, the

same jury determined that Jordan should suffer the penalty of death. After a meticulous review



                                               43
of the record, we find no error requiring vacation of the judgment of conviction and imposition

of the death penalty.   Accordingly, for the reasons herein stated, we find that Jordan is not

entitled to seek post-conviction relief; therefore, his post-conviction relief motion is denied.

¶95.   LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

    SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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