                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 1998-DP-01038-SCT


CHARLES WAYNE ROSS


v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         10/04/1997
TRIAL JUDGE:                              HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED:                TIPPAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF CAPITAL DEFENSE COUNSEL
                                          BY: ALISON R. STEINER
                                              ANDRE DE GRUY
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                        BENJAMIN F. CREEKMORE
NATURE OF THE CASE:                       CRIMINAL - DEATH PENALTY - DIRECT
                                          APPEAL
DISPOSITION:                              REVERSED AND REMANDED - 04/26/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Charles Wayne Ross was convicted of the capital murder of Hershel Ray Yancey by

the Circuit Court of Tippah County and sentenced to death. Finding errors in both the guilt

and sentencing phases of the trial, we reverse and remand for a new trial.

                                         FACTS
¶2.    The victim, Hershell Ray Yancey, was a construction worker who lived in rural

Tippah County. On Friday, June 28, 1996, he was dropped off at his residence by a co-

worker between 7:00 p.m. and 7:10 p.m.

¶3.    Between 7:00 and 9:30 that night, a nearby neighbor, Linda Grey, noticed a loud

vehicle driving up and down the road outside her home. Between 9:30 and 10:00, what

sounded to her like the same vehicle turned into her yard, approximately 100 to 150 feet from

her house. Grey walked outside to investigate and saw a dark-colored car whose make and

model she could not specify. She saw a short person working under the hood of the vehicle,

and, as the car drove away, she noticed that the right tail light was broken. Grey testified that

the car drove away in the direction of Yancey’s residence, and that she believed the car

stopped near the residence and left its engine running.1

¶4.    Yancey’s mother, Marie Yancey, lived in a trailer across the road from him. That

night, she had prepared dinner for her son and asked him to wait at her residence until she

returned. Yancey was not there when she returned home around 9:10 p.m., but she saw that

he had eaten dinner and left the lights on. Yancey’s mother also noticed that all of the lights

in Yancey’s residence were on, but there were no vehicles in the driveway. She assumed

Yancey had gone home to take a shower and did not go to his residence to check on him.

¶5.    Shortly after 9:10 p.m., Yancey’s mother heard a loud vehicle coming down the road

going south and passing both houses. It was too dark for Yancey’s mother to determine



       1
        Grey’s daughter testified that she saw a green, early-seventies model Chevrolet truck
parked in front of Yancey’s residence between 9:30 p.m. and 10:00 p.m. No one from the
Sheriff’s Department contacted Grey’s daughter for any follow-up investigation about what
she had seen.

                                               2
whether the vehicle was a car or a truck or how many people were in it. At 9:28 p.m., she

heard what sounded like the same vehicle start up at Yancey’s residence. She then went to

her kitchen window, and saw a vehicle drive away towards Dumas. She did not hear the

car’s engine between 9:10 and 9:28 p.m. Neither Yancey’s mother nor any other witness

remembered hearing any gunshots or any other loud noises that might have masked the sound

of gunshots. Marie Yancey found her son’s body in his residence the next morning after he

failed to come over for breakfast.

¶6.    An autopsy showed that Yancey had been fatally shot four times with a .22 caliber

weapon.    The initial investigation conducted by the Tippah County Sheriff’s Office

determined that Yancey’s wallet, television, and VCR were missing and that there were no

signs of a forced entry or struggle. The deputies found an uncashed payroll check for

$438.64 in the residence. They also collected beer cans, a broken electrical cord, and shards

of red plastic consistent with an automobile’s tail lights from Yancey’s residence.

¶7.    Though not brought out at trial, the investigation initially determined that on the

afternoon of June 28, an individual identifying himself as Charles Ross [hereinafter “Ross”]

had called a local store asking for Yancey and had left the phone number of a rented trailer

occupied by Tommy Hale, Hale’s girlfriend Margaret Jones, and Jones’ son, Jerry Sanders.

Ross and Jones are half-siblings. Ross’ and Jones’ nephew, Donald Ross, Jr., stayed at the

Hale residence on occasion and was a close companion of Sanders.

¶8.    Based on the phone call reported by the store owner, the sheriff’s office contacted the

Hale household on Saturday, June 29. Hale and Jones initially denied having seen Ross. On

Sunday, June 30, Donald Ross, Jr.’s mother contacted the sheriff’s office and said that her


                                              3
son was willing to come to the police station and give a statement. Donald Ross, Jr. made

his statement to the deputies, in which he averred that Ross had arrived at Hale’s residence

on the evening of June 29 with a television, VCR, wallet, and gun, and that he had admitted

to murdering Yancey. When Donald Ross, Jr. made his statement, he did not claim to have

personally seen Ross or to have heard the purported confession. At trial, he admitted that he

had not witnessed Ross’ arrival nor had he heard his uncle admit to the murder, but that he

had been told by his Aunt Margaret that Ross had done so.

¶9.    On the evening of Sunday, June 30, the sheriff’s deputies came to the Hale residence

to investigate. They took Jones and Hale into separate rooms to take their statements. At

that time, Jones first stated that Ross had told her that he killed Yancey and stole Yancey’s

television, VCR, and wallet. Jones said that she saw Ross toss a pistol over his head into a

sewage ditch behind the Hale residence and burn Yancey’s wallet on an outdoor grill

belonging to Hale.

¶10.   Deputies found the television and VCR in Sanders’ bedroom. They found the gun in

the sewage ditch sixty-five feet from where Jones told the officers Ross had tossed it over

his head. Deputies discovered an empty holster in Donald Ross, Jr.’s Bronco, but did not

search the vehicle for ammunition or other evidence. Jones and Hale testified that Hale’s son

found the holster for Hale’s gun behind the commode in their trailer three weeks later. Hale

said he called the sheriff’s office and told them they discovered the actual holster, but no one

from the sheriff’s office came out to examine it.

¶11.   The deputies also found a pile of ashes on the grill outside the Hale residence. One

of the investigators, Deputy Wayne Wilbanks, testified at trial that he believed that the ashes


                                               4
were the byproduct of a wallet which had been burned with the assistance of an accelerant.

The State did not conduct any forensic tests on the ashes to determine their composition. The

photograph of the grill and ashes included in the record indicate that whatever was burned

in the grill had completely disintegrated.

¶12.   Ross drove a black, 1984 Ford Cougar which had a missing right tail light and ran

loudly as a result of a missing muffler and a rattling motor. On Tuesday, July 2, officers

found and confiscated Ross’ vehicle, which was parked on the property of Ross’ brother,

Donald Ross, Sr. Inside the vehicle, deputies found seven empty Budweiser cans and one

full Budweiser can, three of which matched the manufacturer’s stamp of the beer cans in

Yancey’s trailer. About a quarter of a mile from the car, officers discovered Ross in the

woods with bed clothes, cigarettes, food, rubbing alcohol, a thermos, and $50 to $60.

¶13.   The only latent fingerprints the officers found at the murder scene were on the door

of Yancey’s trailer. Those prints did not match Ross’ fingerprints, and the sheriff’s office

did not compare the prints to those of Jones, Hale, Sanders, or Donald Ross, Jr. When asked

why he did not compare the fingerprints on the door to those of the other potential suspects,

Deputy Wilbanks said he was under the impression that defense counsel “was going to take

care of that.” With regard to the reasoning behind the decision not to investigate the other

occupants of the Hale residence, then-Sheriff Gary Mauney explained, “there was no reason

to suspect any of them because to our knowledge and all, they were assisting us.” Deputy

Wilbanks also testified that the police did not test for gunshot residue on the hands of anyone

who had stayed at the Hale residence that night, including Ross, even though such a test

might have shown whether anyone had fired a gun recently.


                                              5
¶14.   The witnesses’ account of the events in the evening on June 28 differ substantially.

Jones testified that on the afternoon of June 28, Ross came to visit her at the trailer where she

lived with her boyfriend, Hale. She stated that Ross left in his black, 1984 Ford Cougar

between 8:30 or 9:00 p.m. and returned around 11:30 p.m. Jones’ testimony at trial conflicts

with her second recorded statement to Ross’ investigator regarding the incident, in which she

stated that Ross came home between 8:30 and 9:00 that evening.2 Her testimony also

conflicts with that of Hale, who testified that Ross left the trailer around 8:00 p.m. and

returned sometime between 9:00 and 10:00 p.m. When asked if Ross might have returned

as late as 11:30 p.m., Hale insisted that Ross had returned earlier.

¶15.   Jones testified that when Ross returned, only she and Hale were home. She stated that

Sanders and Donald Ross, Jr. did not come home until just before 12:00 p.m. Hale testified

that Sanders and Donald Ross, Jr. returned before Ross, and that all were present when Ross

arrived with the television and VCR. At trial, Jones testified that Ross took her into a

bedroom and showed her a three-fold wallet. This conflicts with her statement to Ross’

investigator, in which she stated that Ross had shown her the wallet outside the trailer. Both

stories conflict with Hale’s testimony, in which he said he never saw Jones and Ross go

outside or into a bedroom alone. Inside the wallet, Jones said she saw a $5 bill and an

identification of some sort. She also said she was able to read the name, “Ray Yancey” on

the identification. Jones testified she did not know whether the wallet was made of leather

or plastic.

       2
       The statement was taken by Herbert Wells, who was offered as an investigator and
an expert on police procedures. Ross proffered the statement into evidence, but the trial court
excluded it.

                                               6
¶16.   Jones testified that Ross then brought in a television and a VCR, one of which was

missing part of its cord. When she asked where he got the items, Ross told her it was best

that she not know. Jones stated that around 12:30 or 1:00 a.m., Ross told her he wanted to

talk to her outside. According to Jones, the following conversation ensued:

       He told me, he said, "I went over there;" and said, "I shot that son of a bitch
       one time right here;" [indicating between the eyes] and he said, "[Yancey]
       looked at me and asked me, ‘What did you do that for Charles Ross?' and he
       said it didn't bother him; and he said, ‘I just kept shooting and shooting.'. . .
       Oh, he asked me . . . ‘Do you not believe that I shot somebody?' I said, ‘I don't
       know,' . . . and he said he had a gun. He said, ‘Do you not believe that I've got
       a gun?' I said, ‘I don't know.' He reached down under. He got in his car and
       reached down under his seat, and pulled a gun out. She [sic] showed me a gun,
       you know, held the gun up. . . . He was standing with [his] back to the car, and
       give [sic] the gun a little flip [indicating he tossed it over his head backwards],
       throwed [sic] it out down the hill. . . .

She testified that Ross then took some paper out of his car, placed it on the charcoal grill, laid

the wallet on top of it, and used the paper to burn the wallet. In her statement to Wells, Jones

said Ross took the papers out of the wallet and used them to start the fire. She also stated that

Ross used no accelerant when burning the wallet. This statement conflicted with the opinion

of Deputy Wilbanks, who testified that an accelerant would have to be used to reduce a

wallet to ashes.

¶17.   Jones stated that after their conversation, Ross went to sleep on the couch. She woke

Donald Ross, Jr. some time after midnight to tell him what Ross had said. Donald Ross, Jr.

gave inconsistent accounts of the night, first testifying that he was asleep when Jones came

to speak to him, but later admitted on cross-examination that he and Sanders drove Ross’ car

sometime after midnight the night of Yancey’s murder.




                                                7
¶18.   Jones testified that she then woke Hale and told him about her conversation with Ross.

She stated that her conversation with Hale occurred between 12:30 and 1:00 a.m.        Hale

testified that the conversation took place between 11:00 and 11:30 p.m. Jones said she asked

Hale if he knew where his .22 caliber pistol was. She testified he then checked the top

drawer where he kept it and discovered that the pistol and its holster were missing. When

asked where her son and Donald Ross, Jr. had been that night and what vehicle they were in,

Jones replied that, although she could not be certain, they were supposed to have been

visiting Sanders’ girlfriend’s house in Donald Ross, Jr.’s Bronco. Hale also testified he

could not be certain what vehicle Sanders and Donald Ross, Jr. were driving that night.

¶19.   On Saturday morning, Jones, Sanders, and Hale went to visit Jones’ and Ross’ mother.

Jones and Sanders testified they told her mother Ross had confessed to murdering Yancey

and that her mother cried in response to the news. However, Hale testified when they visited

Jones’ mother, Jones “never said nothing [sic]” to her mother about the murder. Instead, he

says they only told her his gun was missing.

¶20.   Ross’ version of the events of that night differs substantially from the accounts of

Jones, Sanders, Hale, and Donald Ross, Jr.         At the time of the incident, Ross was

unemployed and had no place to live. He testified that sometimes he stayed with Donald

Ross, Sr., his brother, and about two or three nights a week he stayed with Hale and Jones.

According to Ross, he became good friends with Yancey when they were coworkers. He

said he had been out to Yancey’s trailer two or three times, and at least one of those times

Donald Ross, Jr. had been with him. This conflicts with Donald Ross, Jr.’s testimony, in

which he said that he did not know Yancey and did not know where he lived.


                                               8
¶21.   Around 1:00 p.m. on the day of the murder, Ross went to a bootlegger and purchased

beer. During the afternoon, Ross drank the beer he purchased and visited various friends and

family. He said he intended to spend the night at Donald Ross, Sr.’s trailer, but discovered

upon his arrival that the trailer was locked and no one was home. He testified that he then

went to Hale’s trailer to see if he could spend the night there, arriving around 5:30 or 6:00

p.m. Ross maintained that he left the Hale residence around 7:00 p.m. and returned to

Donald Ross, Sr.’s trailer to see if anyone had come home and unlocked the house. He

testified that, finding the trailer was still locked, he decided to go back to the Hale residence

and sleep on Hale’s couch, and arrived at the residence between 8:30 and 9:00 p.m.

¶22.   Ross estimated that, by the time he reached the Hale residence, he had consumed three

six-packs of beer. He testified he did not leave the trailer after that, and the last thing he

remembers before going to sleep was asking Jones to wake him at 7:00 the next morning.

He testified that he did not see the television or VCR before going to sleep. Ross stated that

he woke up and saw Sanders and Donald Ross, Jr. trying to hook up a television and VCR.

He said he got up, went out to his car to get another beer, took a drink, put it on the coffee

table, and went back to sleep.

¶23.   He testified Jones woke him up the next morning an hour later than he had asked. He

said he knew nothing of Yancey’s death at that time and never talked to Jones about it.

                                         DISCUSSION

¶24.   On appeal, Ross raises fifteen assignments of error, which we have consolidated into

twelve: (I) that the jury selection process in his trial was fatally flawed; (II) that the trial

court made several errors in ruling on the admissibility of evidence at trial; (III) that the State


                                                9
engaged in prosecutorial misconduct; (IV) that the assistance of counsel during the trial was

ineffective; (V) that the competency hearing ordered by this Court was deficient; (VI) that

his sentence violates the United States Supreme Court ruling in Atkins v. Virginia, 536 U.S.

304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); (VII) that the trial court erred in granting the

State’s jury instructions and in denying his proposed instructions; (VIII) that the trial court

impermissibly restricted his right to present mitigation evidence; (IX) that the indictment

against him was fatally flawed in several respects; (X) that the death penalty is

unconstitutional as applied to him; (XI) that his conviction was against the overwhelming

weight of the evidence; and (XII) that the cumulative errors in his trial require reversal.

Where the death penalty has been imposed, the standard of review is heightened:

       We reaffirm at the outset our commitment to heightened scrutiny on appeal in
       cases where the sentence of death has been imposed . . . The penalty of death
       differs from all other forms of criminal punishment, not in degree but in kind.
       It is unique in its total irrevocability. It is unique in its rejection of
       rehabilitation of the convict as a basic purpose of criminal justice. And it is
       unique, finally, in its absolute renunciation of all that is embodied in our
       concept of humanity. This theme, the unique nature of the death penalty, has
       been repeated time and time again. This Court has repeatedly recognized that
       appellate review in capital cases is different from that in other cases.

Neal v. State, 451 So. 2d 743, 750 (Miss. 1984) (internal citations & quotations omitted).

This Court also stated in Neal “that thoroughness and intensity of review are heightened in

cases where the death penalty has been imposed. What may be harmless error in a case with

less at stake becomes reversible error when the penalty is death.” Id. at 749 (quoting Irving

v. State, 361 So. 2d 1360, 1363 (Miss. 1970) (citing Laney v. State, 421 So. 2d 1216, 1217

(Miss. 1982) and Williams v. State, 445 So. 2d 798, 810-11 (Miss. 1984)). Guided by this

heightened standard of review, we turn to Ross’ assignments of error.

                                              10
I.     JURY SELECTION PROCESS 3

       A.     Tainted Venire Panel.

¶25.   During voir dire, when the trial court asked if anyone knew Ross, venire member

Wanda Martindale stood and said, “I’ve testified against him in federal court,” and that this

fact would prejudice her against Ross. Defense counsel did not request a recess to address

Martindale’s statement or have her removed from the panel. Later, when the court asked if

any venire member had been a victim of a crime, Martindale indicated that she had. The trial

judge noted that she had already admitted her bias, and that he understood the reason for that

bias. During defense counsel’s challenges for cause, the following exchange occurred:

       BY THE COURT: We might as well get rid of [juror number sixty-seven]
       right now.

       BY MR. KITCHENS [DEFENSE COUNSEL]: I was wondering about the
       comment she made, how beneficial that was to the whole panel when she stood
       up and said she had testified against our client in federal court.

       BY THE COURT: I heard her say she testified against him.

       BY MR. KITCHENS: She specifically didn’t mention that in her jury
       questionnaire.

       BY MR. HOOD: We challenge [juror number seventy-two]. She said she did
       not believe in the death penalty.

Defense counsel neither expressly objected to the juror’s comment, nor did he request an

instruction to disregard from the trial court. Martindale was subsequently removed from the




       3
       This opinion does not address Ross’ claim that the State impermissibly excluded
African-American venire members from the jury in violation of the United States Supreme
Court’s mandate in Baston v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986) and Powers v. Ohio, 499 U.S. 400; 111 S. Ct. 1364; 113 L. Ed. 2d 411 (1991).

                                             11
venire and did not serve on Ross’ jury. In a post-trial Motion for Judgment Notwithstanding

the Verdict or in the Alternative for a New Trial, Ross argued that the trial court erred in

failing to quash the entire jury venire.

¶26.   The State contends that Ross is procedurally barred from bringing this claim because

he did not object to the testimony or request an instruction. Ross argues that defense

counsel’s statements constituted an objection and, in the alternative, that a defendant who

fails to make a contemporaneous objection may still preserve the issue for appeal by raising

it in a motion for a new trial. Ahmad v. State, 603 So. 2d 843, 846-47 (Miss. 1992).

¶27.   The rule that failure to make a contemporaneous objection waives the issue on appeal

generally applies to death penalty cases. Williams v. State, 684 So. 2d 1179, 1189 (Miss.

1996). An objection must be made with specificity, and failure to articulate the grounds for

objection constitutes a waiver of the alleged error. See, e.g., Latiker v. State, 918 So. 2d 68,

74 (Miss. 2005) (failure to state a legal basis for objection waives right to appeal alleged

error); Irby v. State, 893 So. 2d 1042, 1047 (Miss. 2004) (general objection that jury

instruction is “prejudicial,” without more, is insufficient to preserve for appeal); Crawford

v. State, 787 So. 2d 1236, 1246 (Miss. 2001) (general objection that expert witness was

“mistaken” insufficient to preserve issue for appeal).

¶28.   Defense counsel’s general statement that he “wondered” about “how beneficial” the

statements were, without more, was not a specific enough objection to preserve the issue for

appeal. Defense counsel did not cite any legal principle, did not request a ruling from the

trial judge, and did not object when the prosecution moved on to the next venire member.




                                              12
¶29.   The question remains whether Ross may preserve his right of appeal by raising an

objection in a motion for new trial. Ross cites Ahmad v. State, which states “if an appellant

raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must

have preserved the issue by raising it in a motion for new trial.” Ahmad, 603 So. 2d at 846-

47. However, the principle in Ahmad and virtually all comparable cases concerns the failure

to include in a post-trial motion matters objected to during the trial. See Id. at 846-47

(failure to raise contemporaneous objection and failure to include references in motion for

a new trial waive error on appeal). See also Townsend v. State, 939 So. 2d 796 (Miss. 2006)

(failure to move to dismiss indictment during trial and failure to raise issue in motion for

J.N.O.V. waives the issue on appeal); Shavers v. State, 455 So. 2d 1299, 1302 (Miss. 1984)

(failure to raise contemporaneous objection waives issue on appeal). The only other case we

have found in which an otherwise untimely error was found to be preserved solely through

a motion for a new trial was Hodges v. State, 912 So. 2d 730, 751 (Miss. 2005). In Hodges,

this Court expressly found that the defendant was not procedurally barred from challenging

the prosecution’s closing argument despite the failure to raise a contemporaneous objection.

Id. The Court went on to consider the merits of Hodges’ claim and denied relief. Id. at 751-

55.

¶30.   However, this Court has more often held that “while certain issues are required to be

raised in a motion for new trial, raising objections in a motion for new trial which should

have been made at trial has never been thought to cure the failure to object at the proper

time.” Smith v. State, 797 So. 2d 854, 856 (Miss. 2001) (citing Barnett v. State, 725 So. 2d

797, 801 (Miss. 1998)). See also Pinkney v. State, 538 So. 2d 329, 346 (Miss. 1988),

                                               13
vacated on other grounds by 494 U.S. 1075, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990)

(noting that issue raised for first time in motion for new trial was procedurally barred);

Anderson v. Jaeger, 317 So. 2d 902, 907 (Miss. 1975) (same). Smith and its progeny

articulate the more appropriate rule. In Hodges, notwithstanding the procedural bar, this

Court addressed the merits of the issue in order to dismiss the claim. Because Ross’ counsel

failed to object to Martindale’s statement and failed to seek a curative instruction, we will

not address the issue unless the trial court committed plain error.

¶31.   In general, a voir dire is presumed sufficient to ensure a fair and impartial jury. To

overcome this presumption, a party must present evidence indicating that the jury was not

fair and impartial and show that prejudice resulted from the circuit court’s handling of the

voir dire. Manning v. State, 735 So. 2d 323, 336 (Miss. 1999). A trial court's finding that

an impartial jury was impaneled will not be reversed unless the court abused its discretion.

Holland v. State, 705 So. 2d 307, 336 (Miss. 1997). This Court will treat with deference a

venire person's assertions of impartiality. Id. (citing Scott v. Ball, 595 So. 2d 848, 850

(Miss. 1992)).

¶32.   This Court has held that a defendant fails to show the necessary prejudice where the

defense counsel fails to question jurors about an inappropriate comment, and the venire

members have made general declarations that they could set aside their prejudices and reach

a decision based on the evidence. Holland v. State, 705 So. 2d 307, 339-40 (Miss. 1997);

West v. State, 463 So. 2d 1048, 1054 (Miss. 1985). If venire members are questioned about

an impermissible comment, the trial court may strike those who heard the comment.

Baldwin v. State, 732 So. 2d 236, 241-42 (Miss. 1999).

                                             14
¶33.   Ross correctly notes that it is the obligation of the trial court to insure that the jury

impaneled in a case can render an impartial judgment. Puckett v. State, 737 So. 2d 322, 332

(Miss. 1999). That obligation goes to the core of a defendant’s right to a fair jury trial under

the Sixth and Fourteenth Amendments of the United States Constitution. Evidence of Ross’

prior criminal convictions would not have been admissible during the culpability phase of

the trial unless it had fallen within one of the exceptions to the prohibition on evidence of

“prior bad acts” or had been used to impeach his credibility. See M.R.E. 404(b) & 609.

However, this Court has no basis on which to determine the potential prejudice caused by

Martindale’s statements, because the defense counsel failed to object to the comment and

subsequently failed to question potential jurors about the effect of the statement. While

Martindale’s statements are cause for great concern, we will not find prejudice absent a

record. Whether defense counsel’s failure to remove Martindale from the panel after her first

statement and its failure to query venire members about possible prejudice caused by her

statements constituted ineffective assistance of counsel will be considered in Section IV.

       B.     Questioning of Prospective Jurors.

¶34.   Ross argues that the trial court impermissibly restricted his right to question potential

jurors on their ability to consider mitigating evidence during the sentencing phase of the trial.

The State’s challenge to defense counsel’s questions came at the beginning of the defense’s

voir dire questioning regarding the death penalty:

       Q:     [By defense counsel Kitchens] Mr. Green, are you pro-death as in
              morally you believe it, or in sitting around the coffee shop is that
              something that sounds like a good idea?




                                               15
      A:     [Mr. Donnie Green] I would say I’m for the death penalty if the facts
             in the case merit the death penalty according to law.

      Q:     That’s a good starting point for where I want to go. What facts and
             circumstances in your mind would merit the death penalty?

      (Mr. Hood [District Attorney] stood)

      BY THE COURT: Sustained.

      BY MR. HOOD:         Your Honor, I object.

      BY THE COURT: I sustained the objection. That’s not a proper question.

      Q:     Would there be anything that could be presented that would convince
             you that the death penalty is not necessary?

      A:     Sure.

      BY MR. HOOD:         Objection, Your Honor

      BY THE COURT: I sustain the objection. Those are not proper questions to
      ask the jury on voir dire. You know that, Mr. Kitchens. Go ahead.

      Q:     Then I have no further questions of you, sir. All right, on the second
             row, ma’am.

During the defense’s voir dire, defense counsel asked the following questions without

objection:

      “[A]re you saying that you can’t listen to the evidence presented and return a
      fair verdict either way because of your belief in the death penalty?”

      “Are you telling me that under no set of circumstances could you return a non-
      death penalty verdict?”

      “Are you saying if you did find him guilty, no matter what amount of
      testimony was put on, that once you found him guilty, you would also vote that
      he needs to die for his involvement?”

      “Now, we will present mitigating circumstances. I will compare that to a ball,
      not a base hit or a home run, but probably a ball. You know in baseball if you


                                             16
       get four balls, you walk. Unfortunately, it’s not like that in this. I can’t
       provide you with four mitigating circumstances and he doesn’t get the death
       penalty, but those are good things about him. Those are things that—well, I
       said good things; but those are things about him that on your conscience of
       what you heard might warrant you in saving his life; that might make you
       think, well, what he did was wrong; and he should be punished for it but not
       with his life.”

       “Is there anybody in here who could not sit in this courtroom in this jury box
       and listen to mitigating circumstances, who could not under any circumstances
       if a guilty conviction were reached, could not listen to anything that was good
       about him that should or could save his life?”

¶35.   Mississippi law guarantees the right of either party in a case to probe the prejudices

of prospective jurors and investigate their thoughts on matters directly related to the issues

to be tried. West v. State, 553 So. 2d 8, 22 (Miss. 1989). Such questions enable parties to

conscientiously challenge prospective jurors for cause and provide valuable clues for the

exercise of peremptory challenges. Harris v. State, 532 So. 2d 602, 606 (Miss. 1988).

However, judicial rules prohibit a party from asking venire members hypothetical questions

or attempting to elicit a pledge to vote a certain way if a certain set of circumstances are

shown.4 Questions seeking a commitment from jurors are never necessary to accomplish the

basic purpose of securing fair and impartial juries. Harris, 532 So. 2d at 607. Because the

line between a proper and an improper question is not always easily drawn, it is manifestly

a process in which the trial judge must be given considerable discretion. Id at 606 (citing



       4
        “In the voir dire examination of jurors, the attorney will question the entire venire
only on matters not inquired into by the court. Individual jurors may be examined only when
proper to inquire as to answers given or for other good cause allowed by the court. No
hypothetical questions requiring any juror to pledge a particular verdict will be asked.
Attorneys will not offer an opinion on the law. The court may set a reasonable time limit for
voir dire.” U.R.C.C.C. 3.05.


                                             17
Murphy v. State, 246 So. 2d 920, 921 (Miss. 1971)). An abuse of that discretion will only

be found where the defendant shows clear prejudice resulting from undue lack of constraint

on the prosecution or undue constraint on the defense. Evans v. State, 725 So. 2d 613, 650

(Miss. 1997).

¶36.   The trial court’s ruling in the present case was within its discretion. Asking jurors to

speculate on what sorts of events or circumstances might warrant mitigation may in some

circumstances be considered hypothetical. A review of case law demonstrates that circuit

courts are permitted to take a variable approach to the use of specific circumstances,

irrespective of whether they are hypothetical or actual facts in the case.              See, e.g.,

Crawford v. State, 716 So. 2d 1028, 1042-43 (Miss. 1998) (superceded on other grounds,

Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003)) (finding that defense

counsel’s use of specific hypothetical facts about the defendant did not violate U.R.C.C.C.

3.05); Evans v. State, 725 So. 2d 613, 651 (Miss. 1997) (trial judge prohibited as

hypothetical a voir dire question asking whether an underlying crime of kidnapping or sexual

battery would justify the imposition of the death penalty); Davis v. State, 684 So. 2d 643, 651

(Miss. 1996) (finding that prosecution's voir dire was within the permissible range of

acceptable questioning, where the prosecution asked about specific facts, including that the

victim was killed by a friend, that the defendant had no prior felony convictions, and that

defendant was charged with one murder); Stringer v. State, 500 So. 2d 928, 938 (Miss. 1986)

(finding that prosecution’s specific questions about the facts of the alleged crime, asked

during voir dire and alluded to as an oath in closing argument, had the cumulative effect of

denying defendant the right to a fair trial). The trial court acted within its discretion in ruling

                                                18
that defense counsel’s attempt to elicit statements from venire members regarding specific

circumstances warranting the imposition of the death penalty violated the prohibition on

hypothetical questions.

¶37.   Ross also failed to show that the trial court’s ruling on the challenged voir dire

questions prevented defense counsel from probing prospective jurors’ ability to consider

mitigation evidence. The record demonstrates that defense counsel asked a number of

questions pertaining to mitigation evidence. The assignment of error is without merit.

       C.     Trial Court’s Refusal to Instruct the Venire Panel that
              Consideration of Possible Sentences Was Not Indicative of Ross’
              Guilt.

¶38.   Ross contends that the trial court committed reversible error in refusing to give a

special instruction to the venire members that questions regarding the application of the death

penalty did not pertain to Ross’ guilt or innocence. In his brief, Ross concedes that there is

no constitutional right to such an instruction for potential jurors, but argues that where there

is a genuine danger that a jury will convict based on something other than lawful evidence

proved beyond a reasonable doubt, such an instruction is required by the United States

Supreme Court. See Delo v. Lashley, 507 U.S. 272, 278, 113 S. Ct. 1222, 1225, 122 L. Ed.

2d 620, 628 (1993).

¶39.   Ross has not shown that any such genuine danger existed in the present case. While

the trial court refused to give the proposed instruction, it made repeated reference to Ross’

presumption of innocence and the burden that the State had to carry in order to move on to

the punishment phase of the trial. Defense counsel was in no way restricted from noting

Ross’ presumption of innocence, and in fact emphasized it in his voir dire. Nothing in the

                                              19
record suggests that any party conflated consideration of the death penalty with an

assumption of guilt, or that venire members misunderstood the significance of considering

possible sentences during voir dire. This assignment of error is without merit.

II.    EVIDENTIARY CHALLENGES

       A.     Admission of Hale’s .22 Caliber Pistol.

¶40.   A .22 caliber pistol was found in a ditch behind Hale’s residence. It was later

determined to belong to Hale. The State introduced the pistol as the murder weapon. Ross

argues that the trial court erred in refusing to hear his pre-trial motion to suppress the pistol

and erred in eventually admitting the firearm into evidence in violation of M.R.E. 403. The

State argues that the trial court was under no obligation to hear the motion before trial, that

Ross has failed to preserve the issue for appeal because defense counsel failed to object to

the admission of the firearm during trial, and that, in any event, its admission was permissible

under M.R.E. 403. Defense counsel first raised the issue of its pre-trial motion to suppress

in the midst of jury selection, during a brief break during which the court asked to hear

certain pre-trial motions outside the presence of the venire members:

       BY THE COURT: What else do we have? We’ll put that one on the back
       burner.

       ARGUMENT BY MR. KITCHENS:

               Your Honor, in this case we filed a motion to suppress. That would be
       the alleged murder weapon in this case. The ballistics report from the State
       Crime Lab in our discovery came back that the weapon was not, it was
       inconclusive as far as ballistics and as far as fingerprints. There were no
       fingerprints of the defendant found to be on the weapon.

             We would have issue with that being introduced into evidence since it
       cannot be conclusively identified as the murder weapon. We feel like if it

                                               20
       were allowed to be introduced, all it would do is confuse the jury as to the fact
       that they might think that that is, in fact, the murder weapon; however, that
       cannot be conclusively determined; therefore, I think it would not be relevant
       evidence. It would be more prejudicial than it would be probative.

       BY THE COURT: We’ll take this up when we get to it. When did you file this
       motion?

       BY MR. KITCHENS: I filed it, it’s been on file.

       BY THE COURT: That’s what I’m saying. These motions haven’t been called
       up. I was up here all last week, sat here and asked, specifically asked are there
       motions to be heard; and there wasn’t [sic] any motion to be heard. Now, I’m
       not going to try this case like being nibbled to death by a duck. We’re going
       to do it all at one time or at the proper time; and as these motions come up, if
       you think it’s an evidentiary objection, well, we’ll take it up at the time. If we
       have to send the jury out, we’ll send them out; but we just don’t have time
       now. I’m not going to take time with the jury standing out in the hall. The
       motion has been filed and hasn’t been called up.

Ross did not raise the issue of the motion to suppress again before the trial began. During

the trial, defense counsel failed to make any objection whatsoever, and the trial court

permitted its admission.

               1.     Ross’ pre-trial motion to suppress the pistol.

¶41.   Under Rule 2.04 of the Uniform Rules of Circuit and County Court Practice, the

burden is on the movant to obtain a ruling on a pre-trial motion, and failure to do so

constitutes a procedural bar.5 See Berry v. State, 728 So. 2d 568, 570 (Miss. 1999) (“It is the

responsibility of the movant to obtain a ruling from the court on motions filed by him and

failure to do so constitutes a waiver of same.”); Holly v. State, 671 So. 2d 32, 37 (Miss.



       5
         “It is the duty of the movant, when a motion . . . is filed . . . to pursue said motion to
hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision
before trial is deemed an abandonment of that motion; however, said motion may be heard
after the commencement of trial in the discretion of the court.” U.R.C.C.C. 2.04.

                                                21
1996) (finding that the burden to obtain a ruling on an in limine motion to exclude evidence

rests on the moving party); Martin v. State, 354 So. 2d 1114, 1119 (Miss. 1978) (same). The

orderly administration of justice dictates that the trial judge be vested with a considerable

amount of discretion with respect to trial calendaring and docket management, and we will

not overturn a trial court’s decision absent an abuse of discretion. Palmer v. State, 427 So.

2d 111, 114 (Miss. 1983).

¶42.   Ross’ failure to obtain a ruling on his pre-trial motion was a direct result of his failure

to request a ruling at an appropriate time. The trial court expressly noted that it had provided

a time to hear pre-trial motions and that conducting an evidentiary hearing on the pistol was

inconvenient since the venire members had been convened and were waiting outside the

courtroom. Further, the trial court did not deny the motion to suppress, but instead reserved

judgment until the State moved to introduce the weapon into evidence. Therefore, the trial

judge did not err in declining to rule on Ross’ pre-trial motion.

              2.      The admission of the pistol at trial.

¶43.   Ross next argues that, because he initially raised his motion to suppress before trial,

the trial court denied his motion sub silento by admitting the pistol into evidence without

conducting a hearing, and the issue is consequently preserved for appeal. As noted above,

it is incumbent upon the movant to obtain a ruling on a proffered motion. Berry, 728 So. 2d

at 570. Failure to do so constitutes a waiver. Id. Notwithstanding this procedural bar, we

will consider the merits of Ross’ claim under the plain error doctrine in light of the gravity

of the charge. Walker v. State, 913 So. 2d 198, 216 (Miss. 2005) .

¶44.   The admissibility of evidence rests within the discretion of the trial court, and reversal

                                               22
is appropriate only when a trial court commits an abuse of discretion resulting in prejudice

to the accused. Irby v. State, 893 So. 2d 1042, 1047 (Miss. 2004) (citing Sturdivant v. State,

745 So. 2d 240, 243 (Miss. 1999)). Relevance is a threshold requirement of admissibility.

M.R.E. 402; Foster v. State, 508 So. 2d 1111, 1117 (Miss. 1987). Evidence is relevant if it

has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more or less probable than it would be without the evidence.”

M.R.E. 401. Rule 401 is construed broadly in favor of admitting evidence with even slight

probative value. See M.R.E. 401 cmt. However, even otherwise relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

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

of time, or needless presentation of cumulative evidence.” M.R.E. 403. Under Rule 403, the

exclusion of prejudicial evidence is permissive; that is, if a trial court determines that the

prejudicial effect of evidence substantially outweighs its probative value, it is not obligated

to exclude the evidence, but may do so at its discretion. See Foster, 508 So. 2d at 1117.

¶45.   Ross cites Foster v. State for the proposition that evidence must be excluded where

it is not tied to the alleged crime by any forensic evidence and its introduction is more

prejudicial than probative to the defendant. Foster v. State, 508 So. 2d 1111, 1117 (Miss.

1987), overruled on other grounds, Powell v. State, 806 So. 2d 1069 (Miss. 2001). However,

Foster stands for a more circumscribed principle: where there is no forensic evidence tying

a weapon to a murder or other violent crime, witnesses cannot testify that the weapon “could

be” the one used in the crime. Instead, witnesses are restricted to stating that forensic

evidence showed that the weapon in evidence was “consistent” with the type used in the

                                              23
crime or that the weapon cannot be excluded as the weapon used in the crime. See Foster,

508 So. 2d at 1117; Kolberg v. State, 829 So. 2d 29, 72 (Miss. 2002) (affirming this reading

of Foster). In the present case, the forensic scientist called by the State did not state that the

.22 caliber pistol introduced into evidence could have been the weapon used in Yancey’s

murder; he was careful to note only that the weapon had the same caliber, and that both the

weapon in evidence and the murder weapon lacked distinguishing characteristics that would

allow a positive identification.     Therefore, the State’s witness did not impermissibly

speculate whether Hale’s pistol had been used in the crime.

¶46.   We have held that trial courts should not exclude conceivably prejudicial evidence

solely because forensic testing cannot tie it to the crime. When there is evidence that a

weapon could have caused an injury and some connection between the defendant and the

weapon exists, the weapon will be deemed relevant and admissible. See Rhodes v. State, 676

So. 2d 275, 283 (Miss. 1996) (citing Ethridge v. State, 418 So. 2d 798 (Miss. 1982) and

Stokes v. State, 518 So. 2d 1221 (Miss. 1998)). Here, while the pistol was not directly

connected to Ross through any forensic evidence, other evidence in the case demonstrated

that the pistol was of the same caliber as the one that killed Yancey and that Ross had access

to the weapon. Further, Jones testified that Ross disposed of the pistol after admitting to

Yancey’s murder. Under the circumstances, the trial court did not abuse its discretion in

admitting the pistol into evidence. This assignment of error is without merit.

       B.      Trial Court’s Refusal to Admit the State’s Ballistics Report.

¶47.   Ross argues the trial court erred in refusing to admit the ballistics report of the State’s

expert into evidence. Ross initially moved to have the ballistics report submitted into

                                               24
evidence during the State’s case:

       BY MR. PANNELL: Your Honor, we would ask that that report be admitted
       into evidence.

       BY THE COURT: Any objection?

       BY MR. HOOD: Yes, sir, your Honor. We object. His testimony, it hasn’t
       been substantially impeached. There isn’t a need to introduce the lab report.

       BY THE COURT: What do you want to introduce it for?

       BY MR. PANNELL: Because I want to refer to it in my closing argument. I
       want them to have it there where they can read it.

       BY THE COURT: You can have it marked for identification if you want[.]

Ross renewed his motion to admit the ballistics report during his own case, moving to admit

the report either to impeach the State’s witnesses or to refresh their recollections under

M.R.E. 803 and 804.

¶48.   The admissibility of evidence rests within the discretion of the trial court, and reversal

is appropriate only when a trial court commits an abuse of discretion resulting in prejudice

to the accused. Irby, 893 So. 2d at 1047. Evidence may be excluded under M.R.E. 403 if

it is merely cumulative. Ross correctly notes that the ballistics report was absolutely

admissible as a public record under M.R.E. 803(8), and that it did have to be introduced as

a prior statement under M.R.E. 801. The trial court did not specify the grounds for excluding

the report. Given the gravity of the charge and the slender basis for connecting Ross to the

pistol, it is difficult for us to say the trial court was correct in excluding the report. However,

we decline to reverse on these grounds, since Ross was able to extensively cross-examine the

State’s ballistics expert and highlight the minimal value of the evidence provided by the



                                                25
report. The effect of this ruling on our confidence in the outcome of the trial will be

addressed in Section XII.

       C.     Admission of Glass Shards and Fragments of Burnt Material.

¶49.   Ross contends that the trial court erred in admitting glass shards consistent with a

motor vehicle’s tail light found at Yancey’s residence and a pile of ashes that Jones testified

were the remains of Yancey’s wallet. The relevance of the tail light fragments was tenuous

at best. While Ross’ car had a broken right tail light, all the testimony at trial indicated that

it had been broken for at least six months. There was even testimony that the broken tail

light had been spray-painted to disguise the fact that it was broken. Linda Grey testified that

the car she saw in her driveway already had a broken tail light. It is undisputed this episode

happened prior to the murder. Finally, the State’s forensic expert testified that he could not

make the tail light fragments fit mechanically into what remained of Ross’ tail light. Despite

the complete lack of direct evidence connecting the fragments to Ross’ car, the State argued

that Ross had broken out the tail light after he stumbled with Yancey’s television. The

relevancy of the ashes taken from Hale’s grill presents similar problems. Jones testified that

Ross had burned a wallet, using, depending on which story, either papers taken from the

wallet or papers removed from his car. The ashes then sat on the grill from Friday night until

Sunday night, when the sheriff’s deputies collected them. At trial, the State made no

showing that the ashes had been covered or that they had remained undisturbed for that forty-

eight hour span. Most troubling, the State conducted no forensic tests on the ashes to

determine their composition, yet at trial asserted that they were the remains of a wallet.

¶50.   At trial, Ross not only failed to object to the introduction of these items, but

                                               26
affirmatively stated for the record that there was no objection. Such action effectively waives

the issue on appeal. Ballenger v. State, 667 So. 2d 1242, 1267 (Miss. 1995). Though Ross

did challenge the admission of these items in his motion for a new trial, a belated challenge

to an evidentiary ruling does not rehabilitate an otherwise untimely claim. Smith, 797 So.

2d at 856. Nevertheless, the heightened scrutiny applicable to the review of death penalty

cases mandates a review of the merits of Ross’ claim. Walker, 913 So. 2d at 216 (relaxing

the contemporaneous objection rule in death penalty cases).

¶51.   As noted above, the admission of evidence is within the discretion of the trial court,

and courts have been instructed to construe the Mississippi Rules of Evidence in favor of

admission. See Irby, 893 So. 2d at 1047; M.R.E. 401 cmt. Though the tail light fragments

may have been of slight probative value, Ross had ample opportunity to highlight that the

state’s own expert could not mechanically fit the fragments into the tail light frame.

Similarly, Ross was able to challenge the probative weight of the ashes by emphasizing that

no forensic tests had been conducted to determine the composition of the burnt material. The

trial court did not abuse its discretion in admitting the evidence. Irby, 893 So. 2d at 1047.

Nor does the admission of the evidence amount to plain error, since the admission, by itself,

did not constitute a miscarriage of justice. Gray, 549 So. 2d at 1321.

       D.     Whether the Beer Cans Seized by Police From Ross’ Car Were Taken in
              Violation of the Fourth Amendment.

¶52.   The police began searching for Ross after officers took statements from Hale and

Jones on June 30. On July 1, they went to the residence of Ross’ brother, Don Ross, Sr., and

noted a vehicle in the yard matching the description of Ross’ car. The police radioed in the



                                              27
tag number and were told that tag on the car had been switched. Officer Wilbanks testified

that, when the police asked to search the premises, Don Ross, Sr. replied that he did not care

if the police searched. The police noted that the vehicle had a broken tail light and that there

were several beer cans, similar to those found at the crime scene, on the floorboard, and had

the car towed to the sheriff’s office. A warrant for Ross’ arrest had not yet been issued, and

the police did not obtain a search warrant for either the car or Don Ross, Sr.’s residence. The

trial court conducted a hearing on the admissibility of the beer cans and found that, because

the car’s tag had been switched, the car was in plain view, and the officers had consent to

search the premises, there was no constitutional violation.

¶53.   On appeal, Ross argues that the trial court committed reversible error in admitting the

beer cans into evidence since the car was searched without a warrant in violation of the

Fourth Amendment. Ross contends that the search does not fall under the “automobile

exception” to the Fourth Amendment because the car was not searched incident to a lawful

arrest. He further contends that the car could not be searched under the “plain view”

exception to the Fourth Amendment because the car was on private property and was not

visible from a public road. The State responds that Don Ross, Sr. gave his consent for

officers to search the premises and, implicitly, that Don Ross, Sr. had authority over the

premises to permit the search.

¶54.   Though we normally will defer to a trial court’s determination on the admissibility of

evidence absent an abuse of discretion, we review de novo a trial court’s interpretation of

law. Harris v. State, 757 So. 2d 195, 197 (Miss. 2000). Consent to search is recognized as

an exception to the requirements of a warrant and probable cause. United States v. Matlock,


                                              28
415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); Hudson v. State, 475 So. 2d 156, 158-

59 (Miss. 1985). Consent to search may be provided by a third party who possesses common

authority over or other sufficient relationship to the premises or effects sought to be

inspected. Id. at 158. A renter such as Don Ross, Sr. has been recognized as possessing

sufficient authority to consent to a search of the premises. Id. Ross had no ownership

interest in the premises and therefore cannot argue that any expectation of privacy was

violated. Compare Scott v. State, 266 So. 2d 567, 569 (Miss. 1972) (“[W]here the proof

shows that a person is renting a room or is in possession of a room in a house or an apartment

under such circumstances as to make such person the owner thereof for the time being, such

person is entitled to the protection afforded by Section 23 of the Constitution.”). Because

Don Ross, Sr. consented to a search of his premises, evidence collected pursuant to that

consent was constitutionally acquired. This assignment of error is without merit.

       E.     Exclusion of Expert Testimony of Herbert Wells.

¶55.   Ross contends that the trial court erred in excluding the testimony and accompanying

investigative report of his expert in investigatory techniques, Herbert Wells.         Wells’

proffered testimony purported to show the inadequacy of the police investigation, the

impossibility of burning a wallet until only ashes remained, and the contradictions between

Jones’ statement to him and her testimony at trial. The State argued that the proffer was

untimely, and that the testimony should be excluded as a violation of the discovery rule. The

trial court heard the proposed testimony outside the presence of the jury and ruled it

inadmissible. Though not entirely clear, the trial court appears to have ruled the testimony

inadmissible as a substantive matter and not because it was untimely.

                                             29
¶56.   A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of

evidence. Walker v. State, 878 So. 2d 913, 915 (Miss. 2004). However, this discretion must

be exercised within the confines of the Mississippi Rules of Evidence. Cox v. State, 849 So.

2d 1257, 1268 (Miss. 2003); M.R.E. 103(a). Reversal is proper only where such discretion

has been abused and a substantial right of a party has been affected. Id. The trial court’s

discretion must also insure the constitutional right of the accused to present a full defense in

his or her case. United States v. Stewart, 323 104 F.3d 1377, 1384 (D.C. Cir. 1997).

¶57.   The admissibility of expert testimony is evaluated in light of M.R.E. 702, which holds

that such testimony may be introduced when it is found to be relevant and reliable. See Miss.

Transp. Comm'n v. McLemore, 863 So. 2d 31, 38 (Miss. 2003); see also M.R.E. 702.

Testimony is relevant if it will assist the trier of fact in understanding or determining a fact

at issue. Id. To meet the requirement of reliability, an expert’s testimony must be based on

the methods and procedures of science, and not merely on subjective beliefs or unsupported

speculation. Id., at 36 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 113

S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). Rule 702 expressly allows expert testimony

regarding non-scientific matters, so long as the witness’s knowledge, skill, experience,

training, or education qualify him as an expert in a given field, and (1) the testimony is based

upon sufficient facts or data; (2) the testimony is the product of reliable principles and

methods; and (3) the witness has applied the principles and methods reliably to the facts of

the case.

¶58.   In his proffered testimony, Wells questioned Jones’ account of Ross destroying

Yancey’s wallet by burning it. Wells stated that he had attempted to destroy a wallet by

                                              30
setting it on fire with a great deal of paper underneath.          After the attempt proved

unsuccessful, he gave the wallet time to cool off and saturated it with lighter fluid. That

attempt also proved unsuccessful, and he brought the remains of the wallet with him as part

of his proffered testimony. The State objected that Wells had not been proffered as an expert

in incineration. The trial court excluded this testimony upon finding that, without any

evidence offered as to the type of wallet Yancey owned, the accuracy of the demonstration

could not be substantiated.

¶59.   Rule 401 of the Mississippi Rules of Evidence defines “relevant evidence” as

“evidence having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without the

evidence.” Wells’ experiment was inadmissible under Rule 401 since he could not verify

that the wallet he burned was similar in composition to Yancey’s or that he had attempted

to destroy it under similar circumstances. The trial court did not abuse its discretion in

excluding Wells’ testimony regarding the experiment.

¶60.   Wells also offered testimony in which he highlighted the statements Margaret Jones

made to him in a personal interview, which were inconsistent with her initial statement to

police as well as her testimony at trial. In particular, he discussed the fact that she told him

Ross arrived at Hale’s residence between 8:30 and 9:00 p.m, while she testified at trial that

he arrived around 11:30 p.m. However, introduction of any such statements would have been

mere commentary on the veracity of a witness, which is not appropriate expert testimony

under Rule 702. Smith v. State, 925 So. 2d 825, 833 (Miss. 2006). The trial court therefore



                                              31
did not err in refusing to allow Wells to comment on Jones’ testimony at trial.

¶61.   Finally, Wells was proffered as an expert on police investigatory techniques. He

testified to his experience in securing crime scenes and collecting evidence, and opined that

in those areas the investigation into Yancey’s murder was deficient. However, his proffer

failed to establish the reliability of his testimony under Daubert and McLemore.

Consequently, the trial court did not err in excluding it.

       F.     Exclusion of Prior Inconsistent Statement of Margaret Jones.

¶62.   Ross maintains that the trial court refused to allow him to impeach Jones with prior

inconsistent statements made in her statement to Wells and that it erred in refusing to admit

the statement into evidence. The record demonstrates that defense counsel laid the proper

foundation for the introduction of impeachment evidence:

       BY MR. PANNELL: So that wouldn’t come as any surprise to you, that I
       would have both a tape and a transcript of what you said at that time [in a
       September 10, 1997, statement made to defense investigator Herbert Wells]?


       BY MR. HOOD: Your Honor, we haven’t been provided with anything like
       that in discovery.


       BY THE COURT: All right, go ahead. If the discovery issue comes up, I’ll
       rule on it at the proper time.


The trial court allowed defense counsel to use the contents of Jones’ statement to Wells to

probe inconsistencies between her testimony at trial, her initial statement to police, and her

statement to Wells. The State subsequently objected to defense counsel testifying:

       BY MR. PANNELL: You said that you saw [Yancey’s wallet] on the inside


                                              32
       [of Hale’s residence] today. You said back on July 1 [, 1996,] [in your first
       recorded statement] that you saw it on the outside. You said when you talked
       to Mr. Wells on the 10th of September [1997,] that you saw it on the outside.


       BY MR. HOOD: Objection, you Honor. I object, number one, to him
       testifying and making any statement about a transcript.


       BY THE COURT: I sustain that objection. Limit it to cross-examination.


After the State completed its redirect examination of Jones, defense counsel moved to have

her second recorded statement, made to Hebert Wells, introduced into evidence:

       BY MR. PANNELL: Your Honor, we move to have her voluntary statement
       [made to Herbert Wells] into evidence [sic]. I believe there are contradicting
       statements in there.


       BY THE COURT: You can have it marked for identification if you want to,
       if you want to do that for the record.


....


       BY MR. HOOD: If Tom wants to move it in, we may not have an objection.


       BY A JUROR: Can the jurors look at identification?


       BY THE COURT: Items of evidence that are marked for identification, the
       Court has not ruled on its admissibility yet. It’s just marked for identification,
       all right.


       BY MR. HOOD: Your Honor, we don’t have any objection to it being
       introduced into evidence.


       BY THE COURT: Let it be marked as received as an exhibit to the testimony
       of that witness.



                                              33
       [DEFENDANT’S EXHIBIT 1 WAS MARKED AS RECEIVED.]


Despite the State’s willingness to have the statement admitted into evidence, the record

demonstrates that it was only marked for identification at that time. The trial court did not

elaborate on its grounds for reserving its ruling. After the testimony of Deputy Wilbanks and

outside the presence of the jury, defense counsel argued that Wells’ statement fell under an

exception to the discovery rule, and therefore should have been admitted:

       BY MR. PANNELL: Yesterday we were prevented from reading from the
       statement that we took from Margaret Ann Jones on the grounds we had not
       provided it to [the State] in discovery. We took a second look at this discovery
       rule, and Rule 904(c)(1), (2), or (3) does not require us to provide them with
       impeached material nor work product, both of which this is.


       BY THE COURT: I’ve forgotten what it was you objected to.


       BY MR. PANNELL: They objected to me reading from this statement and
       contradictory statements that Margaret Ann Graves Jones had given on the
       grounds it had not been discovered to them. This is work product and is also
       for impeachment, and the rule does not require us to provide that to them.


       BY MR. LUTHER: As I recall, he was granted --


       BY THE COURT: I sustained that objection on a completely different ground
       as I recall. Do you plan on calling a witness back or something?


       BY MR. PANNELL: No, but I want to get this –


       BY THE COURT: You can mark it for identification if you want to.


       [DEFENDANT’S EXHIBIT 4 WAS MARKED FOR IDENTIFICATION.]


       BY MR. HOOD: Your Honor, we still, just for the record, have not been

                                             34
       provided with that copy of that.


       BY THE COURT: It’s up here if y’all want to look at it. It’s been marked for
       identification.


Though it is unclear, the objection the trial court sustained was presumably the State’s

objection to defense counsel testifying.      The trial court neither ruled that the proper

foundation had not been laid for the introduction of the statement, nor excluded the statement

as a violation of the discovery rule. On appeal, Ross again argues that Jones’ statement to

Wells was introduced for the purpose of impeachment and represented work product and was

therefore exempted from the discovery rule or, in the alternative, that the trial court erred in

failing to order a continuance pursuant to U.R.C.C.P. 9.04.

¶63.   Prior inconsistent statements used to impeach a witness need not be disclosed to

opposing counsel unless opposing counsel has requested that such statements be disclosed.

See M.R.E. 613(a). However, if a statement is introduced into evidence not only for

impeachment, but also to bolster the substantive case of a party, then the admission of the

statement may nevertheless be subject to the reciprocal discovery rule under Rule 9.04 of the

Uniform Code of Circuit and Chancery Practice (U.R.C.C.P.). See, e.g., Coates v. State, 495

So. 2d 464, 466 (Miss. 1986) (finding that, where statement was impeachment evidence but

also outlined defendant’s substantive theory of the case, evidence was subject to the

discovery rule, and the trial court’s exclusion of the statement was not error); see also Byrom

v. State, 863 So. 2d 836, 869 (Miss. 2003) (citing Coates v. State and affirming that where

the statement was substantive evidence but was sought to be introduced as impeachment



                                              35
evidence, exclusion of the evidence was proper for failure to adhere to the rules of reciprocal

discovery). This principle prevents a party from circumventing discovery rules by arguing

that evidence was used merely for impeachment purposes. Coates, 495 So. 2d at 466. In the

present case, while elements of the statement taken by Wells might have been used to

impeach Jones’ testimony, introduction of the entire statement as impeachment testimony

would have been inappropriate since a crucial element of Ross’ defense was undermining

Jones’ credibility. Therefore, though the proper foundation was laid for the introduction of

impeachment evidence, Wells’ statement should not have been admitted as impeachment

evidence, since it tended to prove Ross’ theory of the case.

¶64.   Ross argues in the alternative that the statement taken by Wells was work product and

therefore exempted from discovery. U.R.C.C.P. Rule 9.04(B)(1) excludes attorney work

product from discovery.6 “Work product” encompasses materials that contain the “opinions,

theories or conclusions” of the attorney. The statement, while indicative of the defense’s

approach, did not contain opinions, theories, or conclusions, and was therefore not work

product for the purposes of discovery. Because the statement was not introduced solely for

impeachment and did not constitute work product, defense counsel’s failure to disclose the

statement to the State was a violation of the discovery rule.

¶65.   Ross maintains that, even if the failure to disclose was a discovery violation, the trial

court erred in conclusively excluding it, rather than allowing the State to review the statement


       6
        U.R.C.C.P. 9.04(B)(1). Work Product. Disclosure shall not be required of legal
research or of records, correspondence, reports, or memoranda to the extent that they contain
the opinions, theories, or conclusions of the prosecuting or defense attorney or members of
legal staff.

                                              36
and request a continuance, if necessary. Ross correctly notes that, in making discovery

rulings, trial courts must adhere to the guidelines first articulated in Box v. State, 437 So. 2d

19 (Miss. 1983), and later codified in U.R.C.C.P. 9.04(I).7 Under Rule 9.04(I), evidence

offered by a defendant in violation of the discovery rule cannot be rejected out of hand.

Carraway v. State, 562 So. 2d 1199, 1203 (Miss. 1990). Instead, the State must be given the

opportunity to meet the evidence and determine whether a motion for a continuance or a

motion for a mistrial is necessary. Exclusion of the evidence is an extreme sanction and is

only appropriate where the defendant’s discovery violation was “willful and motivated by

a desire to obtain a tactical advantage.” Darghty v. State, 530 So. 2d 27, 32 (Miss. 1988)

(citing Taylor v. Illinois, 484 U.S. 400, 415, 108 S. Ct. 646, 655, 98 L. Ed. 2d 798, 814




       7
        U.R.C.C.P. 9.04(I). Discovery. If during the course of trial, the prosecution attempts
to introduce evidence which has not been timely disclosed to the defense as required by these
rules, and the defense objects to the introduction for that reason, the court shall act as
follows:

       1.     Grant the defense a reasonable opportunity to interview the newly
              discovered witness, to examine the newly produced documents,
              photographs or other evidence; and

       2.     If, after such opportunity, the defense claims unfair surprise or undue
              prejudice and seeks a continuance or mistrial, the court shall, in the
              interest of justice and absent unusual circumstances, exclude the
              evidence or grant a continuance for a period of time reasonably
              necessary for the defense to meet the non-disclosed evidence or grant
              a mistrial.

       3.     The court shall not be required to grant either a continuance or mistrial
              for such a discovery violation if the prosecution withdraws its efforts
              to introduce such evidence.

The court shall follow the same procedure for violation of discovery by the defense.

                                               37
(1988)). Relying on Taylor, we have held that exclusion “ought be reserved for cases in

which the defendant participates significantly in some deliberate, cynical scheme to gain a

substantial tactical advantage.” Houston v. State, 531 So. 2d 598, 612 (Miss. 1988). In all

discovery matters, we are guided by our statement in Houston v. State:

       We must never forget, however, that the trial for life or liberty is not a game
       and that discovery rules, like other rules of procedure, are not an end in and of
       themselves but a means to the end that we dare call justice. To that end, we
       administer our discovery rules with a strong bias in favor of the court and jury
       receiving and considering all relevant and otherwise admissible evidence.


Houston, 531 So. 2d at 611.

¶66.   In the present case, the trial court erred in failing to consider the admission of the

statement in accordance with Rule 9.04(I). Nothing in the record indicates that defense

counsel deliberately attempted to ambush the State with new evidence. The trial court did

not find that the introduction of the statement was motivated by a desire to gain a tactical

advantage. The State cannot claim that the introduction of the statement caught it unaware,

since the statement was given by its own witness.

¶67.   However, failure to follow Rule 9.04(I) does not inexorably require reversal. Rule

103 of the Mississippi Rules of Evidence stipulates that error may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is affected

and a timely objection is made, or the substance of the evidence was made known to the

court by an offer of proof or was apparent from the context within which questions were

asked. The admission or exclusion of evidence constitutes reversible error only where a

party can show prejudice or harm. Jackson v. State 594 So. 2d 20, 25 (Miss. 1992). The


                                              38
relevant inquiry therefore is whether the trial court’s failure to adhere to Rule 9.04(I)

prejudiced Ross.

¶68.   This Court has found prejudice where the trial court fails to follow the Box guidelines

in excluding testimony that tended to support a defendant’s account of events.              See

Darghty v. State, 530 So. 2d 27, 33 (Miss. 1988) (“Even-handed application of the Rule

requires the same procedure to be followed when the State objects to testimony because of

a defendant's violation as when the defendant objects for the same reason. . . . [the] testimony

being relevant and competent, it was prejudicial error to exclude it without following our

procedural guidelines. Accordingly, we reverse and remand for another trial.”). While Ross

was allowed to impeach Jones with her prior statement on cross-examination, the exclusion

of that statement from evidence did prejudice his case. Jones’ testimony was the only direct

evidence linking Ross to the crime. The jurors recognized the importance of her credibility,

as evidenced by one juror’s request to see the transcript. Given that Jones’ credibility was

the crucial issue in this case, and in light of the severity of the crime charged, we find that

the trial court committed reversible error in excluding her statement from evidence without

conducting a Box hearing pursuant to Rule 9.04(I).

III.   PROSECUTORIAL MISCONDUCT

¶69.   Ross argues that the district attorney committed misconduct in his closing argument

in the guilt phase and sentencing phases of the trial by (A) attacking the character and

honestly of opposing counsel, (B) making personal observations about the veracity of a

witness, and (C) referencing information not submitted into evidence.



                                              39
¶70.   Attorneys are afforded wide latitude in arguing their cases to the jury but are not

allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably

calculated to unduly influence the jury. Sheppard v. State, 777 So. 2d 659, 661 (Miss.

2001). We will review allegations of misconduct to determine “whether the natural and

probable effect of the improper argument is to create unjust prejudice against the accused so

as to result in a decision influenced by the prejudice so created.” Id. In deciding the

propriety of allegedly improper comments, we will consider them in the context of the case.

Ahmad v. State, 603 So. 2d 843, 846 (Miss. 1992). A series of otherwise harmless errors in

a closing argument may be grounds for reversal where, in the aggregate, those errors violate

a defendant’s right to a fair and impartial trial. Howell v. State, 411 So. 2d 772, 776 (Miss.

1982) (series of inappropriate comments by prosecution during closing argument grounds for

reversal for violation of due process).

¶71.   Ross failed to object to a number of the statements about which he now complains.

In general, the failure to object to the prosecution’s statements in closing argument

constitutes a procedural bar. Spicer v. State, 921 So. 2d 292, 309 (Miss. 2006). This

contemporaneous objection rule applies in death penalty cases and may apply to the

prosecution’s closing argument. Williams v. State, 684 So. 2d 1179, 1203 (Miss. 1996).

However, in extreme cases, a failure to object to questions which were violative of a

constitutional right will not act as a procedural bar to consideration. Wood v. State, 257 So.

2d 193, 200 (Miss. 1972) (finding that consideration of inappropriate cross-examination by

the State was not barred by defendant’s failure to object). See also Mickell v. State, 735 So.

2d 1031, 1035 (Miss. 1999) (“[I]n cases of prosecutorial misconduct we have held [that] this

                                             40
Court [is not] constrained from considering the merits of the alleged prejudice by the fact that

objections were made and sustained, or that no objections were made.”); Griffin v. State, 557

So. 2d 542, 552 (Miss. 1990) (“Even without a timely objection, reversal may be required

when the prosecuting attorney has commented upon the defendant's right not to testify.”)

(citations omitted).

       A.     Statements Allegedly Impugning the Honesty and Character of Opposing
              Counsel.


¶72.   In the State’s closing argument during the guilt phase of the trial, the district attorney

made a number of statements that Ross argues were insulting to defense counsel. Indicative

of these statements was the beginning of the State’s closing argument: “I don’t know if it’s

necessary to address the defense’s case or not. I think you have seen a textbook violation of

closing argument by [defense counsel].” While these and other statements are provocative,

we find that they fall within the wide discretion granted to parties in closing argument.

Sheppard, 777 So. 2d at 661.

       B.     Prosecution’s Observation on the Veracity of a Witness.

¶73.   The district attorney noted Jones had testified that Ross told her that killing Yancey

“didn’t bother him at all,” and told the jury “I don’t think it did.” Ross argues that bolstering

a witness’s credibility in this manner was error, but cites no authority for this principle. Such

statements are permissible given the wide latitude granted to parties in closing argument.

Sheppard, 777 So. 2d at 661.

       C.      References to Information not in Evidence.



                                               41
¶74.   Ross alleges that the State impermissibly implied that Ross had been seen at the crime

scene. In general, parties may comment upon any facts introduced into evidence, and may

draw whatever deductions and inferences that seem proper from the facts. Bell v. State, 725

So. 2d 836, 851 (Miss. 1998) (collecting authorities). Arguing statements of fact which are

not in evidence or necessarily inferable from facts in evidence is error when those statements

are prejudicial. Blue v. State, 674 So. 2d 1184, 1214 (Miss. 1996), overruled on other

grounds, King v. State, 784 So. 2d 884 (Miss. 2001); see Randall v. State, 806 So. 2d 185,

212-14 (Miss. 2001) (reversing and remanding for new trial in death penalty appeal partly

because the prosecutor attempted to infer guilt from the sudden absence of gunpowder

residue when absence of gunpowder residue was not in evidence); West, 485 So. 2d at 689-

90 (reversing and remanding for new trial in death penalty appeal partly because the

prosecutor inappropriately implied in closing argument the defendant had threatened

teenaged witnesses); Augustine v. State, 201 Miss. 277, 28 So. 2d 243, 244-47 (1946)

(reversing and remanding for new trial partly because the prosecutor made references to facts

not on the record, including, but not limited to, references to a gun used to commit the crime

when there was no evidence of a gun on the record). An arguing party may not appeal to a

juror’s prejudice by injecting prejudices not contained in some source of the evidence.

Sheppard, 777 So. 2d at 661 (citing Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817,

821 (1930)).

¶75.   Former Tippah County Sheriff Gary Mauney testified that, the morning after Yancey’s

murder, an unidentified party somewhere near the crime scene stated that Ross was around

Yancey’s residence the day he was killed. Sheriff Mauney wrote Ross’ name on a “crime

                                             42
scene sign-in sheet” used to record the individuals interviewed at the crime scene. Mauney

emphasized, however, that Ross was not actually at the crime scene when he wrote his name

down. This sign-in sheet was not entered into evidence and was not identified for the record.

In its closing argument, the State first argued that, based on Mauney’s notes, Ross had been

at the crime scene the day before the murder. Defense counsel objected to the State’s arguing

matters not in evidence, and the court instructed the jury to disregard the statement. Later

in its closing argument, the State again made reference to the sign-in sheet, stating that Ross’

name “appeared” on the sheet, and that “that’s the first time we hear about Charles Ross.”

No objection was made to the second statement.               Ross argues that these statements

erroneously suggest that Ross was present at the crime scene.

¶76.   This Court has reversed and remanded cases in which the prosecutor inappropriately

made references in closing argument to supposed inconsistencies between two statements the

defendant had made, one recorded on tape and one unrecorded, because neither statement

was in evidence. Flowers v. State, 773 So. 2d at 329-30. In the present case, the prosecution

made two references to the crime scene sign-in sheet and arguably misconstrued the

significance of the sheet by initially arguing it indicated that someone had seen Ross at

Yancey’s residence around the time of the crime. The trial court’s instruction to disregard

the first statement is deemed sufficient to cure any impermissible prejudice. See, e.g., Walker

v. State, 671 So. 2d 581, 621-622 (Miss. 1995) (citing Davis v. State, 530 So. 2d at 694, 697 (Miss.

1988)). Nevertheless, the second reference to the crime sign-in sheet was error. Because the second

reference was not as pointed as the first, we decline to reverse on these grounds. The effect of this




                                                 43
error on our confidence in the outcome of this trial will be considered in Section XII.

IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

¶77.   Ross argues that nearly all of his independent assignments of error are, in the

alternative, evidence of ineffective assistance of counsel. The touchstone for testing a claim

of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced

a just result. Irby v. State, 893 So. 2d 1042, 1049 (Miss. 2004) (citing Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).

¶78.   The standard of review for a claim of ineffective assistance involves a two-pronged

inquiry: the defendant must demonstrate that his counsel's performance was deficient and

that the deficiency prejudiced the defense of the case.             Id.   To establish deficient

performance, a defendant must show that his attorney’s representation fell below an objective

standard of reasonableness. Davis v. State, 897 So. 2d 960, 967 (Miss. 2004) (citing

Williams v. Taylor, 529 U.S. 362, 390-91, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)). To

establish prejudice, a defendant must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the trial would have been different. Id. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id.

¶79.   The focus of the inquiry must be whether counsel's assistance was reasonable

considering all the circumstances. Id. at 746 (citing Strickland, 466 U.S. at 688). We will

not find ineffective assistance where a defendant’s underlying claim is without merit. Id.

Similarly, multiple defaults that do not independently constitute error will not be aggregated


                                                44
to find reversible error. Walker v. State, 863 So. 2d 1, 22 (Miss. 2003). Our review is highly

deferential to the attorney, with a strong presumption that the attorney's conduct fell within

the wide range of reasonable professional assistance. Howard v. State, 853 So. 2d 781, 796

(Miss. 2003) (citing Hiter v. State, 660 So. 2d 961, 965 (Miss. 1995)). However, an

attorney’s lapse must be viewed in light of the nature and seriousness of the charges and the

potential penalty. State v. Tokman, 564 So. 2d 1339, 1343 (Miss. 1990) (citing Washington

v. Watkins, 655 F.2d 1346, 1356-57 (5th Cir. 1981)).

       A.     Tainted Venire Panel.

¶80.   As noted in Section I(B), during the voir dire of prospective jurors, venire member

Martindale noted that she had testified against Ross in federal court and, separately, that she

had been the victim of a crime. Defense counsel failed to object to her statements at the time,

did not have her removed after her initial statement that she had testified against Ross, did

not request a curative instruction from the court, and did not query the remaining venire

members about possible prejudice induced by the statement after she was removed.

Martindale was subsequently struck for cause.

¶81.   Defense counsel undoubtedly erred in failing to conduct even a cursory inquiry into

the identity of the venire members. Ross’ counsel had actual knowledge of Martindale’s

identity because testimony during a pre-trial bond hearing specifically noted that she had

been the victim of Ross’ prior armed bank robbery and had subsequently testified against

him. Similarly, while defense counsel’s decision not to object to Martindale’s first statement

immediately after she made it may well have been sound trial strategy, their failure to take

actions to remove Martindale from the panel before she made her second statement cannot

                                              45
be considered the product of reasonable strategy. It is true that evidence of the bank robbery

was introduced in the sentencing phase, but that is irrelevant to prejudice suffered during the

guilt phase, particularly after the second statement. These substantial lapses likely fall below

an objective standard of reasonableness and therefore constitute error, but we cannot say

from the record that Ross suffered prejudice.

       B.     Failure to Lay Necessary Foundation to Introduce the Statement Taken
              by Herbert Wells.

¶82.   The statement given by Jones to Wells was taken on September 10, 1997, nineteen

days before Ross’ trial began. At trial, defense counsel argued that the statement was for

impeachment purposes, or in the alternative, was work product, and therefore did not have

to be disclosed. Whether it was an omission or a misguided trial strategy, the decision

substantially prejudiced Ross because it precluded him from introducing into evidence the

substantial inconsistencies between Jones’ statements to police and her statement to Wells.

However, because we cannot say that defense counsel’s failure to introduce the statement

was not trial strategy, we do not find reversible error.

       C.     Failure to Investigate Potential Mitigating Evidence and Failure to
              Effectively Present Relevant Mitigating Evidence at the Penalty Phase.

¶83.   During the sentencing phase of the trial, defense counsel offered as mitigating

evidence the testimony of Ross’ mother, grandmother, and daughter, a minister at the jail

where Ross had been incarcerated since his arrest, and the sheriff who had arrested Ross in

1989 for armed bank robbery. Ross also testified in his own defense. Much of the testimony

concerned the witnesses’ opinions of Ross’ character. A substantial portion of defense

counsel’s case for mitigation relied on their characterization that Ross was a “good prisoner”

                                              46
and functioned appropriately in the prison system. On cross-examination of Ross, the State

challenged this characterization, noting that Ross had been moved from a county jail to a

higher security facility for possession of a hacksaw and attempting to escape and that he had

been punished in federal prison for making alcoholic beverages in his cell. During Ross’

competency hearing pending appeal, defense counsel confessed that they were stunned when

Ross admitted making alcoholic beverages in prison and “about fell through [their] seats.”

Ross also argues his attorney was ineffective for failing to conduct an adequate investigation

into potentially mitigating factors such as Ross’ psychological problems and for failing to

obtain an expert to testify to these factors.

¶84.   While courts must defer to lawyers’ judgments and strategies, “at a minimum, counsel

has a duty to interview potential witnesses and to make independent investigation of the facts

and circumstances of the case.” Ferguson v. State, 507 So. 2d 94, 96 (Miss. 1987). Under

this standard, counsel may be deemed ineffective for relying almost exclusively on material

furnished by the State during discovery and conducting no independent investigation. Id.

While counsel is not required to exhaust every conceivable avenue of investigation, he or she

must at least conduct sufficient investigation to make an informed evaluation about potential

defenses. State v. Tokman, 564 So. 2d at 1343. Under Strickland, counsel has a duty “to

make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691.

¶85.   Our state case law has not extensively addressed what constitutes adequate

investigation into mitigating circumstances. See, e.g., Brown v. State, 749 So. 2d 82, 90-91

(Miss. 1999) (defendant entitled to hearing on ineffective assistance where defense counsel

                                                47
had a psychological evaluation administered but failed to submit a mitigation report on the

evaluation); Foster v. State, 687 So. 2d 1124, 1131-32 (Miss. 1996) (decision not to

investigate potentially mitigating psychological factors was reasonable and strategic because

a preliminary competency hearing found that defendant had no psychotic disorder or organic

mental disorder); Ladner v. State, 584 So. 2d 743, 757 (Miss. 1991) (counsel not ineffective

where court-appointed psychologist performed comprehensive evaluation and found no

mitigators).

¶86.   In such cases, the jurisprudence from other jurisdictions proves useful. For example,

where defense counsel has sought and acquired a psychological evaluation of the defendant

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

additional testing. Moore v. Parker, 425 F.3d 250, 254 (6th Cir. 2005); Hall v. United

States, 2004 U.S. Dist. LEXIS 17089, *73 (D. Tex. 2004). Similarly, defense counsel cannot

be held ineffective for failing to discover a mitigating factor, such as organic brain damage,

that the defendant cannot show exists in any post trial motion. Thompson v. Bell, 315 F.3d

566 (6th Cir. 2003).

¶87.   In each of these cases, counsel will not be deemed ineffective if there is proof of

investigation or if there is no factual basis for the defendant’s claim. However, each of these

principles presuppose a certain level of investigation. By contrast, “strategic choices made

after less than complete investigation will not pass muster as an excuse when a full

investigation would have revealed a large body of mitigating evidence.” Dickerson v.

Bagley, 453 F.3d 690, 696-697 (6th Cir. 2006). “It is not reasonable to refuse to investigate

when the investigator does not know the relevant facts the investigation will uncover.” Id.

                                              48
In the present case, Ross undoubtedly alleges facts which demonstrate a need to develop

mitigating evidence based on potential psychological problems. The Mississippi State

Hospital at Whitfield conducted a psychological evaluation of Ross and discovered a number

of potential mitigating factors, including accounts of physical and sexual abuse, possible

alcoholism, accounts of visual and auditory hallucinations, and the deaths of his ex-wife and

four young children in a car accident in 1985 and the brutal murder of his sister in 1982. The

supplemental record also reveals that, at the time of his examination, Ross was taking anti-

psychotic medication and medication for depression. While Ross testified to the death of his

family, physical abuse as a child, and his drinking problems, and his mother testified to the

murder of his sister, defense counsel provided no expert evidence about how these events had

affected Ross psychologically. The record provides no evidence that defense counsel knew

about Ross’ hallucinations or the circumstances which would eventually lead to his taking

medications for psychological disorders. When asked why he did not try to develop this line

of mitigation evidence for his client, Ross’ defense counsel stated that Ross maintained he

wasn’t “crazy.” Defense counsel’s failure to investigate beyond this single declaration

cannot be considered reasonable given the serious mitigating issues evident in the post-trial

competency hearing.

¶88.   Far more problematic was defense counsel’s apparent failure to properly investigate

Ross’ record as an inmate. Defense counsel asserted in opening statements that Ross had

been a “good prisoner” since his arrest, but put on only the most superficial evidence of this

fact. In doing so, they opened the door for the State to introduce Ross’ previous bad acts into

evidence.   This failure falls below an objective standard of reasonableness and was


                                              49
undoubtedly highly prejudicial, as it tended to cast Ross as unrepentant, a habitual criminal,

and a danger to society. Given the severity of the charge against Ross, defense counsel’s

failure to investigate Ross psychological problems and his disciplinary record in prison

substantially undermines our faith in Ross’ sentence, and therefore constitutes ineffective

assistance of counsel for the sentencing phase of the trial. Davis, 897 So. 2d at 967;

Tokman, 564 So. 2d at 1343.

V.     COMPETENCY HEARING

¶89.   On appeal, Ross claims that the competency hearing conducted by the trial court and

approved by this Court was deficient in three respects: first, for placing the burden on Ross

of proving his lack of competency by a preponderance of the evidence; second, for the trial

court’s denial of Ross’ motion for a continuance to consider the testimony of the examining

physician; and third, for the trial court’s failure to address Ross’ motion to retain an

independent expert to examine Ross.

¶90.   The United States Supreme Court recognizes that the allocation of the burden of proof

in competency hearings in criminal trials lies squarely within the discretion of state courts,

and specifically that the allocation of the burden of proof to the defendant does not offend

due process. Medina v. California, 505 U.S. 437, 449-52; 112 S. Ct. 2572, 2579-81; 120 L.

Ed. 2d 353, 366-68 (1992). Where there is a serious question about the sanity or competency

of a defendant to stand trial, “it naturally devolves upon the defendant to go forward with the

evidence to show his probable incapacity to make a rational defense.” Emanuel v. State, 412

So. 2d 1187, 1189 (Miss. 1982); see also Evans v. State, 725 So. 2d 613, 660 (Miss. 1997).

The defendant must show incompetency by a preponderance of the evidence. Griffin v.

                                              50
State, 504 So. 2d 186, 191 (Miss. 1987). The trial court therefore did not err in placing the

burden of proof on Ross.

¶91.   Similarly, the decision to grant or deny a motion for a continuance is within the sound

discretion of the trial court and will not be reversed unless the decision results in manifest

injustice. See, e.g., Cox v. State, 849 So. 2d 1257, 1267 (Miss. 2003). After conducting his

examination of the psychologist who examined Ross, Ross’ appellate counsel renewed a

previously off-the-record motion for a continuance to review material that he maintained had

only been made available to him the day of the hearing. The trial court found that witnesses

had been called up from the Mississippi State Hospital and that the case would not be well

served by having the witnesses make repeated trips. The record does not reflect that Ross’

appellate counsel was unfamiliar with the evaluation results or that he was unable develop

his case through the examination of witnesses. The trial court’s determination was within

its discretion.

¶92.   Finally, Ross alleges that the trial court’s failure to address his motion for an

independent expert constituted reversible error. However, the record reveals that the trial

court was amenable to hearing Ross’ motion at an appropriate time. There is no evidence in

the record that Ross further pursued his motion. A defendant has the obligation to secure a

ruling on his motion for an independent expert, and failure to do so constitutes a procedural

bar. Berry v. State, 728 So. 2d 568, 570 (Miss. 1999) (“It is the responsibility of the movant

to obtain a ruling from the court on motions filed by him and failure to do so constitutes a

waiver of same.”). Even if Ross were not procedurally barred, a defendant is not entitled to

a favorable mental health evaluation, but only to a competent psychiatrist and an appropriate

                                             51
examination. Jordan v. State, 912 So. 2d 800, 818 (Miss. 2005); Byrom v. State, 863 So.

2d 836, 852 (Miss. 2003). The trial court cannot be faulted for failing to rule on a motion

never formally before it. This assignment of error is without merit.

VI.    ATKINS HEARING

¶93.   In Atkins v. Virginia, 536 U.S. 304, 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. Ross argues that in light of this decision his

sentence must be vacated and his case remanded to the trial court for an evaluation of his

mental capacity. Ross maintains that although he was given both an I.Q. test and a

personality index by the Mississippi State Hospital, those tests were administered to establish

his competency to assist in his appeal and did not conclusively determine whether he is

mentally retarded.

¶94.   The record reflects that while Ross’ scores on his I.Q. test were within the range of

mentally retarded, the hospital’s psychologist testified that in her opinion Ross was

malingering and that he was not actually mentally retarded. The examining psychologist also

stated that the Mississippi State Hospital had administered the Minnesota Multiphasic

Personality Inventory, or MMPI, to Ross. The examining psychologist opined that the results

of the MMPI were invalid because Ross intentionally malingered on the test by randomly

choosing answers. Ross implicitly argues that both findings are belied by the psychologist’s

testimony at the competency hearing, where she admitted that Ross had difficulty

understanding the implications of his trial and sentence.




                                              52
¶95.   A defendant will not be deemed mentally retarded for the purposes of the Eight

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 Multiphasic

Personality Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not

malingering.” Lynch v. State, 2007 Miss. LEXIS 34, 17-18 (Miss. 2007) (citing Chase v.

State, 873 So. 2d 1013, 1029 (Miss. 2004)).            When these tests already have been

administered and the results are clear from the record, re-filing an affidavit is unnecessary.

Scott v. State, 878 So. 2d 933, 948 (Miss. 2004). In the present case, the testimony from the

State’s psychologist indicates that Ross was malingering and that his functioning did not fall

within the range of mentally retarded. Because Ross has failed to proffer the information

necessary to warrant an Atkins hearing, he is not entitled to a reconsideration of his sentence

on this issue. Hughes v. State, 892 So. 2d 203, 216 (Miss. 2004). This assignment of error

is without merit.

VII.   JURY INSTRUCTIONS

¶96.   Ross maintains that the trial court erred in refusing the following proposed jury

instructions during the guilt phase of his trial: 1-A, 2, 3, and 4. He also argues that the trial

court erred in granting the State’s Sentencing Instruction S-1 and in denying his sentencing

phase instructions 2, 3, 4, 12, and 13.

       A.      Culpability Phase Instructions.

               1.     Number 4, directed verdict instruction.

                                               53
¶97.   Ross argues that the evidence presented by the State was insufficient to support his

conviction of capital murder, and that, as a result, the trial court erred in refusing Ross’

proposed instruction to the jury for a directed verdict of not guilty.

¶98.   Where a defendant has requested a peremptory instruction in a criminal case or after

conviction moved for judgment notwithstanding the verdict, the trial judge must consider all

the evidence, not just the evidence which supports the State's case, in the light most favorable

to the State. Howard v. State, 853 So. 2d 781, 788 (Miss. 2003) (citing Gavin v. State, 473

So. 2d 952, 956 (Miss. 1985)) (citations omitted). The evidence which supports the case of

the State must be taken as true, and the State must be given the benefit of all favorable

inferences that may reasonably be drawn from the evidence. Id. If there is evidence of such

quality and weight that reasonable, fair-minded men in the exercise of impartial judgment

might reach different conclusions, then the request or motion should be denied. Id.

¶99.   In Ross’ case, there was sufficient evidence, both circumstantial and in the form of

Jones’ testimony, for a reasonable jury to find that Ross murdered Yancey in the commission

of a robbery. The stolen goods were found in a residence where Ross had stayed the night

of the murder. A car similar to Ross’ had been seen and heard near Yancey’s residence the

night of the murder. Jones testified that Ross admitted to killing Yancey. Ross had access

to a pistol of the same caliber as the firearm that killed Yancey. In light of this evidence, it

was not error for the trial court to deny Ross’ proposed instruction for a directed verdict.

              2.      Number 1-A, circumstantial evidence instruction.

¶100. Ross also argues that the trial court erred in refusing to instruct the jury that the case

against Ross was based entirely on circumstantial evidence. When all of the evidence

                                              54
tending to prove the guilt of a defendant is circumstantial, the trial court must grant a jury

instruction that every reasonable hypothesis other than guilt must be excluded in order to

convict. Manning v. State, 735 So. 2d 323, 338 (Miss. 1999) (citing Givens v. State, 618

So. 2d 1313, 1318 (Miss. 1993)). Circumstantial evidence is evidence which, without going

directly to prove the existence of a fact, gives rise to logical inference that such fact does

exist. Id. If direct evidence is before the jury, then a circumstantial evidence instruction is

inappropriate. Ladner v. State, 584 So. 2d 743, 750 (Miss. 1991). Direct evidence may

consist of a confession by the defendant, including a defendant's admission to a person other

than a law enforcement officer. Id.

¶101. Ross concedes that Jones’ testimony regarding Ross’ statements to her constitutes

direct testimony, but argues that Jones’ testimony was so thoroughly discredited by other

evidence that its weight was negligible.        Therefore, he argues, the jury should have

considered Ross’ case to be based on circumstantial evidence. However, issues regarding

weight and credibility of the evidence are for the jury to resolve. Hughes v. State, 735 So.

2d 238, 276 (Miss. 1999). The trial court did not err in refusing to treat Ross’ case as a de

facto circumstantial-evidence case.

               3.     Numbers 2 and 3, instructions defining reasonable doubt.

¶102. Ross argues that the trial court erred in refusing his proposed jury instruction no. 2,

which defined reasonable doubt, and proposed jury instruction 3, which stated that all

reasonable doubts must be resolved in favor of the defendant. He contends that the refusal

of these instructions constituted reversible error because the trial court failed to offer the jury




                                                55
any instruction regarding reasonable doubt. Ross’ claim is not supported by the record. The

trial court granted jury instruction Number 1, which read:

         The law presumes every person charged with the commission of a crime to be
         innocent. This presumption places upon the State the burden of proving the
         defendant guilty of every material element of the crime with which he is
         charged. Before you can return a verdict of guilt, the State must prove to you
         beyond a reasonable doubt that the defendant is guilty. The presumption of
         innocence attends the defendant throughout the trial and prevails at its close
         unless overcome by evidence which satisfies the jury of his guilt beyond a
         reasonable doubt. The defendant is not required to prove his innocence.

(Emphasis added). The Court also granted the State’s first instruction on capital murder,

which read:

         If the State of Mississippi has failed to prove any one or more of these
         elements beyond a reasonable doubt, then you shall find the defendant,
         Charles Wayne Ross, not guilty of capital murder in the death of Hershel Ray
         Yancey.

(Emphasis added).

¶103. Where a jury is adequately instructed on reasonable doubt, it is not reversible error

for the court to refuse to give a defense instruction on it. Howard v. State, 853 So. 2d 781,

791 (Miss. 2003) (citing Holloway v. State, 809 So. 2d 598, 606 (Miss. 2000)). Instructions

nearly identical to Ross’ proposed instructions have been properly excluded where existing

instructions adequately address the presumption of innocence and reasonable doubt. See

Martin v. State, 854 So. 2d 1004, 1009-10 (Miss. 2003) (addressing the definition of

reasonable doubt); Williams v. State, 667 So. 2d 15, 24 (Miss. 1996) (addressing the

resolution of reasonable doubt). Because Ross’ proposed instructions on reasonable doubt

had been adequately addressed by other jury instructions, this assignment of error is without

merit.

                                              56
       B.      Sentencing Phase Instructions.

               1.     Sentencing instruction Number S-1.

¶104. The first sentencing instruction, offered by the State and adopted by the trial court,

included as one of the statutory aggravators to be considered by the jury that “the capital

offense was committed for the purpose of avoiding or preventing a lawful arrest.” Defense

counsel objected to the inclusion of this aggravator in the instruction on three bases: first,

that there was insufficient evidence to show that Ross had murdered Yancey in order to avoid

arrest for the robbery; second, that the use of this aggravating circumstance had not been

disclosed to Ross in the indictment; and third, that the aggravator could not be used as both

a “capitalizing” offense and an aggravator in determining Ross’ sentence.

¶105. An instruction detailing the aggravator of “avoiding lawful arrest” may be granted if

there is evidence from which a jury may reasonably infer that a substantial reason for the

killing was either to conceal the identity of the killer or to “cover their tracks” so as to avoid

apprehension and eventual arrest by authorities. Mitchell v. State, 792 So. 2d 192, 219

(Miss. 2001) (citing Manning v. State, 735 So. 2d 323, 350 (Miss. 1999)). Because Ross

knew Yancey personally, it was reasonable for a jury to conclude that Yancey was murdered

to conceal either the identity of the killer or to avoid investigation for the robbery. The trial

court committed no error in finding that there was a sufficient evidentiary basis for the

instruction.

¶106. Ross’ argument that the State erred in failing to state the aggravating circumstances

to be used in the sentencing phase is similarly unavailing. Mississippi law does not require

the aggravating circumstances to be set forth in the indictment. See Bennett v. State, 933 So.

                                               57
2d 930, 952 (Miss. 2006); Smith v. State, 729 So. 2d 1191, 1224 (Miss. 1998); Smith v.

State, 724 So. 2d 280, 296 (Miss. 1998); In re Jordan, 390 So. 2d 584, 585 (Miss. 1980).

Rather, an indictment for capital murder puts a defendant on notice of the aggravating

circumstances that may be used against him. Bennett, 933 So. 2d at 952; Williams v. State,

445 So. 2d 798, 804-05 (Miss. 1984).           The State’s failure to list the aggravating

circumstances in the indictment was therefore no bar to their being employed in the

sentencing phase of the trial. Finally, this Court has repeatedly held that evidence of the

underlying crime can properly be used both to elevate the crime to capital murder and as an

aggravating circumstance. See Bennett, 933 So. 2d at 954; Goodin v. State, 787 So. 2d 639,

654 (Miss. 2001); Smith, 729 So. 2d at 1223; Bell v. State, 725 So. 2d 836, 859 (Miss. 1998);

Crawford v. State, 716 So. 2d 1028, 1049-50 (Miss. 1998). The United States Supreme

Court has also held that the use of an underlying felony as an aggravator does not offend the

Constitution. Lowenfield v. Phelps, 484 U.S. 231, 233, 108 S. Ct. 546, 98 L. Ed. 2d 568

(1988). Consequently, there was no error in granting sentencing instruction S-1.

              2.     Denial of Ross’ Proposed Sentencing Instructions.

                     a.      Proposed sentencing instruction Number 2 – statutory and non-
                             statutory mitigation.

¶107. Ross maintains that the trial court erred in refusing his second proposed sentencing

instruction, which set out elements of the crime that the State had to prove, a list of the

aggravating circumstances the State would attempt to show, and a list of twenty-four non-

statutory mitigators, presented as illustrations of the type of information that the jury could




                                              58
consider mitigating circumstances. The crux of Ross’ contention is that the refusal of this

instruction impermissibly restricted the mitigation evidence the jury could consider.

¶108. Specific instructions on non-statutory mitigating circumstances need not be given, so

long as a “catch-all” instruction is included that instructs the jury that they may consider any

factors that they may deem mitigating in their deliberations. See, e.g., Manning v. State, 735

So. 2d 323, 352 (Miss. 1999). This Court has also held that “catch-all” instructions do not

limit the jury’s consideration of mitigating factors. Simmons v. State, 805 So. 2d 352, 499

(Miss. 2001). Under the list of statutory mitigating circumstances in the first sentencing

instruction, the trial court instructed the jury that they may consider:

       Any other matter, any other aspect of the defendant’s character or record, and
       any other circumstance of the offense brought to you during the trial of this
       cause which you, the jury, deem to be mitigating on behalf of the defendant.

The instruction properly informs the jury about what may be considered as mitigation

evidence.   Therefore, the trial court’s refusal of Ross’ proposed instruction does not

constitute error.

                      b.     Proposed sentencing instruction Number 3 – conviction is not
                             itself an aggravator.

¶109. Ross argues that the trial court erred in refusing his third sentencing instruction, which

stated that the fact of his conviction of capital murder was not itself an aggravator that could

be considered for the purpose of punishment. However, when a jury has been instructed to

consider only an enumerated list of statutory aggravating factors, there is no need for a

separate instruction to this effect. See, e.g., Walker v. State, 913 So. 2d 198, 248 (Miss.




                                              59
2005); Edwards v. State, 737 So. 2d 275, 317 (Miss. 1999). There was no error in refusing

Ross’ third proposed sentencing instruction.

                     c.      Proposed sentencing instruction Number 4 – Residual doubt.

¶110. Ross contends that the trial court erred in refusing his fourth proposed sentencing

instruction, which instructed jurors to consider as a mitigating circumstance the possibility

of residual doubt about Ross’ guilt. Both the United States Supreme Court and this Court

have held that a capital defendant is not entitled to an instruction on residual doubt.

Holland v. State, 705 So. 2d 307, 325-27 (Miss. 1997); Franklin v. Lynaugh, 487 U.S. 164,

174, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988). The trial court did not err in refusing this

proposed instruction.

                     d.      Proposed sentencing instruction Number 12 – mercy instruction.

¶111. Ross maintains that the trial court erred in granting the State’s first sentencing

instruction and denying his twelfth proposed sentencing instruction.          Ross’ proposed

instruction emphasized that while jurors could not consider “mere sympathy” in their

culpability determination, they could, and presumably should, consider mercy or sympathy

in their sentencing determination as a mitigating circumstance. The contested part of the

State’s instruction explained the process of balancing aggravating and mitigating

circumstances to the jury:

       You must consider and weigh any aggravating and mitigating circumstances,
       as set forth later in this instruction, but you are cautioned not to be swayed by
       mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or
       public feeling.




                                              60
¶112. This Court has held the above-quoted language, considered in the context of a long

sentencing instruction, does not prevent the consideration of sympathy. See Flowers v. State,

842 So. 2d 531, 563 (Miss. 2003); Evans v. State, 725 So. 2d 613, 690-91 (Miss. 1997)

(expressly approving of such language in the context of a long instruction). Consequently,

the trial court did not err in granting the State’s first sentencing instruction. Similarly, there

was no error in refusing Ross’ proposed instruction specifically citing mercy or sympathy

as a mitigator. This Court has repeatedly held that a capital defendant is not entitled to a

sympathy instruction, because, like a mercy instruction, it could result in a verdict based on

whim and caprice. See, e.g., Howell v. State, 860 So. 2d 704, 759 (Miss. 2003).

                      e.      Proposed sentencing instruction Number 13 – weighing of
                              aggravating and mitigating circumstances.

¶113. Finally, Ross argues that the trial court erred in denying his thirteenth instruction,

which would have allowed jurors to rely on a sense of mercy to sentence Ross to life

imprisonment, despite the fact that aggravators existed and were not balanced by any

mitigating factors. Such an instruction is both a mercy instruction and an instruction that

jurors are not bound to weigh aggravating and mitigating circumstances contemplated in the

State’s first sentencing instruction. This Court does not recognize a right to a mercy

instruction. Howell, 860 So. 2d at 759. Similarly, this Court has repeatedly refused to accept

instructions that would nullify the balancing of aggravating and mitigating factors, since such

instructions might induce verdicts based on whim and caprice. Manning v. State, 726 So.

2d 1152, 1197 (Miss. 1998).        The trial court did not err in refusing Ross’ proposed

instruction.



                                               61
¶114. Because Ross has shown no error by the trial court in its rulings on jury instructions,

this assignment of error is without merit.

VIII. MITIGATION EVIDENCE

¶115. Ross argues that the trial court erred in granting the State’s in limine motion to prevent

Ross’ family from testifying to the impact a death sentence would have on the family. The

United States Supreme Court maintains that the Eighth Amendment gives capital defendants

wide latitude in arguing mitigating circumstances to the jury. See, e.g., McCoy v. North

Carolina, 494 U.S. 433, 441, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990). Furthermore, a

state “cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that

the defendant proffers in support of a sentence of less than death.” Tennard v. Dretke, 542

U.S. 274, 285, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004). “Relevant evidence” has been

defined as “any aspect of a defendant’s character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence less than death. Lockett v.

Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L.Ed.2d 973 (1978). Consistent with this

precedent, testimony regarding the impact a death sentence may have on the defendant’s

family is not ‘relevant mitigating evidence,’ because it does not address the defendant's

character, record, or the circumstances of the offense. See, e.g., Wilcher v. State, 697 So. 2d

1087, 1104 (Miss. 1997) (“[T]he trial court did not err in excluding testimony from Wilcher's

family that they wished for his life to be spared . . . [because] such testimony is not relevant

to the defendant's character, record, or the circumstances of the offense.”); Simon v. State,

688 So. 2d 791, 811 (Miss. 1997) (impact of death penalty on family is not relevant to




                                              62
sentencing). The trial court therefore did not err in granting the State’s in limine motion.

This assignment of error is without merit.

IX. SUFFICIENCY OF THE INDICTMENT

       A.     Failure to List Aggravating Circumstances.

¶116. Ross claims that the indictment was insufficient because it failed to charge all

elements necessary to impose the death penalty under Mississippi law: (a) it included neither

a statutory aggravating factor nor a mens rea element of Miss. Code Ann. § 99-19-101(5) &

(7) (Rev. 2000); (b) it did not itemize the statutory aggravating circumstances that the State

would rely upon; and (c) it did not provide specific notice to Ross of what the State was

proposing to prove against him.

¶117. Ross cites Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed.2d

435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002),

in support of his argument that the statutory aggravators and mens rea element must be

specifically pled in the charging indictment of a state court case. However, as the Court has

held, neither Ring nor Apprendi stand for this proposition, and the United States Supreme

Court in both decisions specifically held it was not addressing the question of whether the

aggravators must be included in the indictment. See Apprendi, 530 U.S. at 477 fn.3; see also

Bennett v. State, 933 So. 2d 930, 952 (Miss. 2006). The Supreme Court has continued to

hold that indictment issues in federal courts are governed by the Fifth Amendment, while

indictment issues in state courts are instead governed by state law. Mississippi law does not

require the aggravating circumstances to be set forth in the indictment. See Id.; Smith v.

State, 729 So. 2d 1191, 1224 (Miss. 1998); Smith v. State, 724 So. 2d 280, 296 (Miss. 1998);

                                             63
In re Jordan, 390 So. 2d 584, 585 (Miss. 1980). Rather, an indictment for capital murder

puts a defendant on notice of the aggravating circumstances that may be used against him.

Bennett, 933 So. 2d at 952; Williams v. State, 445 So. 2d 798, 804-05 (Miss. 1984).

¶118. While specific aggravating circumstances need not be specified in the indictment

under Mississippi law, the underlying felony that elevates the crime to capital murder must

be identified in the indictment along with the section and subsection of the statute under

which the defendant is being charged. See Miss. Code Ann. § 99-17-20 (Rev. 2000). Thus,

although it is not required under federal or Mississippi law, the indictment in this case

included one of the aggravating circumstances.

¶119. Furthermore, this Court has repeatedly rejected similar arguments based on Ring and

Apprendi, holding both of them inapplicable to Mississippi's capital sentencing scheme.

Bennett, 933 So. 2d at 952. In Stevens v. State, 867 So. 2d 219, 227 (Miss. 2003), this Court

held that the “defendant is not entitled to formal notice of the aggravating circumstances to

be employed by the prosecution” and that any time an individual is charged with murder, he

is put on notice that the death penalty may result. Additionally, in Brown v. State, 890 So.

2d 901, 918 (Miss. 2004), this Court rejected the argument that Ring and Apprendi require

aggravators to be included in a state court indictment. See also Knox v. State, 901 So. 2d

1257, 1269 (Miss. 2005); Gray v. State, 887 So. 2d 158, 174 (Miss. 2004) ("Thus, the issue

of the omission of aggravating circumstances in the indictment is without merit.");

Mitchell v. State, 886 So. 2d 704, 711 (Miss. 2004); Berry v. State, 882 So. 2d 157, 173

(Miss. 2004); Puckett v. State, 879 So. 2d 920, 946 (Miss. 2004); Holland v. State, 878

So. 2d 1, 9 (Miss. 2004); Simmons v. State, 869 So. 2d 995, 1010 (Miss. 2004); Stevens, 867

                                             64
So. 2d at 227 (“The State is correct in its assertion that a defendant is not entitled to formal

notice of the aggravating circumstances to be employed by the prosecution and that an

indictment for capital murder puts a defendant on sufficient notice that the statutory

aggravating factors will be used against him.”). Ross’s indictment sufficiently informed him

of the charges against him, and his claim is without merit.

       B.     Use of the Underlying Felony as an Aggravating Circumstance.

¶120. Relying primarily on Ring and Apprendi, Ross maintains that the use of the

underlying felony of armed robbery as an aggravating circumstance upon which the jury

relied in returning a sentence was improper. However, evidence of the underlying crime can

properly be used both to elevate the crime to capital murder and as an aggravating

circumstance. See Bennett, 933 So. 2d at 954; Goodin v. State, 787 So. 2d 639, 654 (Miss.

2001); Smith, 729 So. 2d at 1223; Bell v. State, 725 So. 2d 836, 859 (Miss. 1998);

Crawford v. State, 716 So. 2d 1028, 1049-50 (Miss. 1998). Furthermore, the United States

Supreme Court has held that there is no constitutional error in using the underlying felony

as an aggravator. Lowenfield v. Phelps, 484 U.S. 231, 233, 108 S. Ct. 546, 98 L. Ed. 2d 568

(1988). The Supreme Court stated in Tuilaepa v. California, 512 U.S. 967, 972, 114 S. Ct.

2630, 129 L. Ed. 2d 750 (1994), that "[t]he aggravating circumstance may be contained in

the definition of the crime or in a separate sentencing factor (or in both)."

¶121. The use of the underlying felony as an aggravator was not error.

       C.     Substitution of Aggravating Circumstances at the Close of the Sentencing
              Phase.




                                              65
¶122. Ross complains that, during the jury instruction conference for the sentencing phase,

the State was allowed, over objection, to withdraw a jury instruction on the aggravating

circumstance of murder committed by a person who had previously been convicted of a

felony involving the threat of violence to persons and substitute a jury instruction on the

aggravating circumstance of murder committed for the purpose of avoiding or preventing a

lawful arrest. Ross argues that this last-minute substitution of aggravating circumstances

violated his Fifth Amendment right to timely notice of the charges against him and his Sixth

Amendment right to sufficient notice of the charges against him.

¶123. In Gardner v. Florida, 430 U.S. 349, 362, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977),

the United States Supreme Court held that a defendant may not be sentenced to death “on the

basis of information which he had no opportunity to deny or explain.” However, it has

already been established that an indictment for capital murder puts a defendant on notice of

the aggravating circumstances that may be used against him, Williams v. State, 445 So. 2d

798, 804-05 (Miss. 1984), and there is no authority for the proposition that the State must

furnish formal notice of aggravating circumstances in discovery. Smith v. State, 729 So. 2d

1191, 1124 (Miss. 1998).

¶124. Even if the substituted aggravating circumstance had been excluded, there was still

sufficient proof of other aggravating circumstances to support the sentence. Jordan v. State,

912 So. 2d 800, 812 (Miss. 2005). If one aggravator is found to be invalid, the Court is

authorized to reweigh the remaining aggravators against the mitigating circumstances.

McGilberry v. State, 843 So. 2d 21, 29 (Miss. 2003). Upon review of the aggravating and

mitigating circumstances without the contested aggravating circumstances, we find that there

                                             66
were sufficient aggravating circumstances to justify the sentence. This assignment of error

is without merit.

       D.      Sufficiency of the Habitual Offender Portion of the Indictment.

¶125. The portion of the indictment charging Ross as a habitual offender was on a separate

page from the rest of the indictment. Ross argues that, pursuant to Section 169 of the

Mississippi Constitution of 1890, the indictment concluded with the words "against the peace

and dignity of the state," which were found on the first page of the indictment; and therefore,

he was not properly charged as a habitual offender and could not be sentenced as such.

Section 169 of the Mississippi Constitution reads: “The style of all process shall be ‘The

State of Mississippi’ and all prosecution shall be carried on in the name and by authority of

‘The State of Mississippi,’ and all indictments shall conclude ‘against the peace and dignity

of the State.’” Miss. Const. art. 6, § 169. However, Ross did not challenge the sufficiency

of his indictment at trial.

¶126. Challenges to the substantive sufficiency of an indictment may not be waived and

consequently may be raised for the first time on appeal. State v. Berryhill, 703 So. 2d 250,

254 (Miss. 1997). For example, a challenge to an indictment for failure to charge the

essential elements of a criminal offense affects a fundamental right, and may not be waived.

Jefferson v. State, 556 So. 2d 1016, 1019 (Miss. 1989). However, “the mere fact that a

procedural requirement is located in the Constitution does not necessarily elevate it to the

status of a fundamental right.” Brandau v. State, 662 So. 2d 1051, 1054 (Miss. 1995)

(failure to conclude indictment with the words “against the peace and dignity of the State of

Mississippi” did not affect a fundamental right). We have held specifically that the inclusion

                                              67
of the habitual offender portion of an indictment after the words “against the peace and

dignity of the State of Mississippi” does not affect a fundamental right and may be waived

on appeal. Crawford v. State, 716 So. 2d 1028, 1050-51 (Miss. 1998). Ross is therefore

procedurally barred from challenging his indictment. This assignment of error is without

merit.

XI.      OVERWHELMING WEIGHT OF THE EVIDENCE

¶127. Ross argues that the trial court erred in denying his motion for a new trial. A motion

for new trial challenges the weight of the evidence. When reviewing a denial of a motion for

a new trial based on an objection to the weight of the evidence, we will disturb a verdict only

when it is so contrary to the overwhelming weight of the evidence that to allow it to stand

would sanction an unconscionable injustice. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)

(citing Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). We have stated that on a motion

for new trial, the court sits as a thirteenth juror, and the evidence is weighed in the light most

favorable to the verdict. Id. A finding that the verdict was against the overwhelming weight

of the evidence indicates that the Court disagrees with the jury’s resolution of conflicting

evidence and requires a new trial. Id.

¶128. Though the standard of review in such cases is high, “[t]his Court has not hesitated

to invoke its authority to order a new trial and allow a second jury to pass on the evidence

where it considers the first jury's determination of guilt to be based on extremely weak or

tenuous evidence[,] even where that evidence is sufficient to withstand a motion for a

directed verdict.” Lambert v. State, 462 So. 2d 308, 322 (Miss. 1984) (Lee, J., dissenting)

(citing Shore v. State, 287 So. 2d 766 (Miss. 1974)); Feranda v. State, 267 So. 2d 305 (Miss.

                                               68
1972); Barnes v. State, 249 So. 2d 383 (Miss. 1971); Cook v. State, 248 So. 2d 434 (Miss.

1971); Peterson v. State, 242 So. 2d 420 (Miss. 1970); Hux v. State, 234 So. 2d 50 (Miss.

1970); Quarles v. State, 199 So. 2d 58 (Miss. 1967); Yelverton v. State, 191 So. 2d 393

(Miss. 1966); Mister v. State, 190 So. 2d 869 (Miss. 1966); Cole v. State, 217 Miss. 779, 65

So. 2d 262 (1953); Dickerson v. State, 54 So. 2d 925 (Miss. 1951); Jefferson v. State, 52 So.

2d 925 (Miss. 1951); Conway v. State, 177 Miss. 461, 171 So. 16 (1936)); see also

Hutchins v. State, 220 So. 2d 276 (Miss. 1969); Brown v. State, 219 Miss. 748, 70 So. 2d

23 (1954); Williams v. State, 220 Miss. 800, 72 So. 2d 147 (1954); Martin v. State, 197

Miss. 96, 19 So. 2d 488 (1944); Holifield v. State, 132 Miss. 446, 96 So. 306 (1923);

Bolden v. State, 98 Miss. 723, 54 So. 241 (1910). A greater quantum of evidence favoring

the State is necessary for the State to withstand a motion for a new trial, as distinguished

from a motion for J.N.O.V. Pharr v. State, 465 So. 2d 294, 302 (Miss. 1984).

¶129. In denying Ross’ motion for a new trial, the trial court found that the jury properly

weighed the evidence and determined that Ross: (1) took a wallet, television, and VCR, (2)

from Yancey, (3) which belonged to Yancey, (4) against Yancey’s will, (5) by shooting him

four times. Miss. Code Ann. § 97-3-79 (Rev. 2000). However, a careful review of the

evidence supporting the verdict raises serious concerns regarding the weight of the evidence

considered by the jury.

       A.     The Contradictory Character of Testimony at Trial.

¶130. The most striking aspects of the evidence used to convict Ross were the numerous and

substantial inconsistencies among the testimonies of Jones, Hale, Sanders, and Donald Ross,

Jr. Although the accounts of Jones and Sanders were substantially similar, their version of

                                             69
the events differed significantly from Hale’s account. Of particular concern are the wide

inconsistencies regarding what time Ross, Sanders, and Donald Ross, Jr. arrived at Hale’s

residence, in what order they arrived, and what they did with the television and VCR after

Ross allegedly brought it inside.

¶131. Hale testified that Sanders and Donald Ross, Jr. were already home when Ross arrived

between 9:00 and 10:00 p.m. with the television and VCR. He was certain it was not as late

as 11:30 p.m. Jones disagreed, testifying Ross arrived at the Hale residence first, around

11:30 p.m., followed by Sanders and Donald Ross, Jr. who she says arrived just before

midnight. Jones’ account at trial also differs from her statement to Wells, in which she stated

that Ross arrived at Hale’s residence between 8:30 and 9:00 p.m.

¶132. Hale testified Sanders repaired the television, and then they all watched it together on

Friday night. This conflicts with Sanders’ testimony, in which he stated that he repaired the

broken cord on the television the next morning at the request of Ross. Sanders’ account also

conflicts with Jones’ testimony, in which she stated that she, Hale, and Sanders went into

town early that morning.

¶133. Jones’ testimony about the circumstances under which Ross showed her the gun and

the wallet also conflicts with her statement to Wells and Hale’s testimony at trial. At trial,

Jones testified that Ross took her into a bedroom and showed her a three-fold wallet. In her

statement to Wells, she stated that Ross had shown her the wallet outside the trailer. Both

stories conflict with Hale’s testimony, in which he said he never saw Jones and Ross go

outside or into a bedroom alone. At trial, Jones testified that Ross then took some paper out

of his car, placed it on a charcoal grill, laid the wallet on top of it, and used the paper to burn


                                                70
the wallet. In her statement to Wells, Jones said Ross took the papers out of the wallet and

used them to start the fire.

¶134. In addition to these inconsistencies, several aspects of Jones’ testimony at trial appear

implausible. Jones testified that after Ross confessed to murdering Yancey, he pulled the gun

out from under the seat of his car, showed it to her, and tossed it over his head backwards

with a “little flip.” At trial she emphasized that Ross casually tossed the gun over his

shoulder. However, the gun was found in a sewage ditch sixty-five feet from where she said

Ross had tossed it. When confronted with this inconsistency, her only reply was that

substantial time had elapsed since Ross’ confession. Similarly, Jones’ testimony was the

only evidence supporting the State’s contention that Ross had burned Yancey’s wallet on a

charcoal grill outside Hale’s residence. Jones testified that Ross showed her Yancey’s

wallet, then either took paper out of his car or out of Yancey’s wallet, and used the paper to

set the wallet on fire. She further testified that Ross had not used any accelerant to destroy

the wallet. This testimony conflicts with the opinion of Deputy Wilbanks, who collected the

ashes and opined that a wallet could not have been destroyed without some sort of accelerant.

At trial, Jones testified that she was not certain if the wallet was totally destroyed, which

conflicted with her statement to Wells, in which she stated that the wallet had been

completely reduced to ashes.

¶135. Considered in isolation, these inconsistencies and implausible accounts might be

regarded merely as a matter of witness credibility to be determined by a jury. See, e.g.,

Hughes v. State, 724 So. 2d 893, 896 (Miss. 1998). However, the fact that Jones’ testimony

was often inconsistent and implausible weighs against its trustworthiness, particularly in a


                                              71
capital case. See Cole v. State, 217 Miss. 779, 786-87, 65 So. 2d 262, 264-65 (Miss. 1953)

(finding, in case of reversal based on the overwhelming weight of the evidence, State’s key

witness was incredible since “[n]ot one, but a number of aspects of [the witness’s] testimony,

when considered together, [made] it an exceedingly improbable and unreasonable story”).

       B.     Inconclusive Circumstantial Evidence.

¶136. Absent Jones’ testimony, the bulk of the evidence against Ross was inconclusive,

circumstantial, or did not implicate Ross any more than it did the other occupants of Hale’s

residence. The State’s case relied on a number of items in evidence whose relevance was

questionable. For example, the State provided no support for their argument that the tail light

fragments came from Ross’ car. The State made no showing that the ashes found on the grill

had been properly preserved or what their composition was. The State noted that the beer

cans collected from Ross’ car had the same manufacturer’s stamp as those found at the crime

scene, but never explained how many cans would have the same stamp. The State argued

that the vehicle heard by Yancey’s neighbors was Ross’ car, which ran loudly because it did

not have a muffler. However, other individuals admitted driving the car at some point on the

night of the murder. Yancey’s neighbor said she saw a small person working on a car in her

yard, a description which could have fit Ross or Sanders. All the individuals staying at

Hale’s residence would have had access to Hale’s pistol. Finally, the stolen television and

VCR were found in Sanders’ bedroom.

       C.     The Balance of Evidence.

¶137. The lack of substantial direct evidence against Ross is troubling, particularly given

the inconsistencies in Jones’ testimonies. Ultimately, however, we cannot find that the trial

                                              72
court erred in denying Ross’ motion for a new trial. Absent from the record are the myriad

nuances and subtle impressions from which jurors weigh credibility, and this Court must be

wary of encroaching on the peculiar province of the jury. We therefore decline to find that

Ross’ conviction was against the overwhelming weight of the evidence. Its effect on our

cumulative harmless error analysis will be considered in Section XII.

XII.   CUMULATIVE ERROR

¶138. Ross argues the cumulative effect of the various errors in the trial, even if harmless,

requires reversal and remand. The cumulative error doctrine stems from the doctrine of

harmless error, codified under Mississippi Rule of Civil Procedure 61. It holds that

individual errors, which are not reversible in themselves, may combine with other errors to

make up reversible error, where the cumulative effect of all errors deprives the defendant of

a fundamentally fair trial. Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003). As an

extension of the harmless error doctrine, prejudicial rulings or events that do not even rise

to the level of harmless error will not be aggregated to find reversible error. As when

considering whether individual errors are harmless or prejudicial, relevant factors to consider

in evaluating a claim of cumulative error include whether the issue of innocence or guilt is

close, the quantity and character of the error, and the gravity of the crime charged. See, e.g.,

Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 301 (Nev. 1998) (citing Homick v.

State, 112 Nev. 304, 316, 913 P.2d 1280, 1289 (1996)). That is, where there is not

overwhelming evidence against a defendant, we are more inclined to view cumulative errors

as prejudicial. In death penalty cases, all genuine doubts about the harmlessness of error




                                              73
must be resolved in favor of the accused because of the severity of the punishment. See

Walker v. State, 913 So. 2d 198, 216 (Miss. 2005).

¶139. In the present case, we find reversible error in the failure of the trial court to adhere

to Rule 9.04(I) in excluding the statement of Margaret Jones taken by Ross’ investigator.

Similarly, defense counsel’s failure to investigate substantial mitigating factors during the

sentencing phase requires reversal of Ross’ sentence. Arguing that Ross’ life should be

spared because he could have functioned appropriately as a prisoner was not a valid defense

given Ross’ disciplinary record in prison. During the sentencing, defense counsel also failed

to address substantial non-statutory mitigating factors noted by the state mental hospital.

Other errors provide further justification for reversal because of their cumulative effort.

These include the State maintaining in closing argument that Ross had been seen at the crime

scene when he had not; defense counsel’s failure to explore the possible tainting of the venire

panel, particularly after Martindale’s second prejudicial statement; and the exclusion of the

State’s ballistics report from evidence, which took a tangible document away from Ross that

could have been argued to the jury. These errors are of particular concern because much of

the State’s case against Ross, absent the inconsistent testimony of Margaret Jones, was

indirect. We therefore reverse Ross’ conviction and sentence and remand his case for a new

trial.

                                      CONCLUSION

¶140. We do not reverse a conviction lightly and recognize that no trial is perfect. See

Walker v. State, 913 So. 2d 198, 250 (Miss. 2005). However, the gravity of a death penalty




                                              74
case demands that we sanction a conviction and sentence only where there are no genuine

doubts as to their validity.

¶141. Because the independent and cumulative errors during the guilt and sentencing phases

of the trial denied Ross a fundamentally fair trial, we reverse Ross’ conviction and sentence

and remand this case for a new trial consistent with this opinion.

¶142. REVERSED AND REMANDED.

     SMITH, C.J., COBB, P.J., DIAZ, GRAVES AND DICKINSON, JJ., CONCUR.
RANDOLPH, J., CONCURS IN RESULT ONLY. DIAZ, J., SPECIALLY CONCURS
WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., GRAVES
AND DICKINSON, JJ. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY CARLSON, J.

       DIAZ, JUSTICE, SPECIALLY CONCURRING:

¶143. I wholeheartedly concur with the majority’s opinion that we must reverse and remand

this case for a new trial because of pervasive errors during both the guilt and sentencing

phases. Yet I am compelled to write because prospective jurors were improperly struck,

violating both the constitutional rights of Charles Wayne Ross and also those of the jurors.

¶144. It is a bedrock tenet of American law that “[t]he very idea of a jury is a body . . .

composed of the peers or equals of the person whose rights it is selected or summoned to

determine; that is, of his neighbors, fellows, associates, persons having the same legal status

in society as that which he holds.” Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 90

L.Ed. 2d 69 (1986) (internal quotations and citations omitted). Accordingly, the “jury has

occupied a central position in our system of justice by safeguarding a person accused of

crime against the arbitrary exercise of power by prosecutor or judge.” Id. Therefore “[t]hose

on the venire must be ‘indifferently chosen,’ to secure the defendant’s right under the

                                              75
Fourteenth Amendment to ‘protection of life and liberty against race or color prejudice.’” Id.

(internal quotations and citations omitted).

¶145. The right to an impartial jury does not just flow to the accused in a criminal case, for

“[r]acial discrimination in selection of jurors harms not only the accused whose life or liberty

they are summoned to try,” but also the juror who has been discriminated against and, by

extension, the greater whole of the community.          Id. at 87.   “[B]y denying a person

participation in jury service on account of his race, the State [also] unconstitutionally

discriminate[s] against the excluded juror.” Id.

¶146. In Mississippi, we have specifically noted that this constitutional prohibition against

juror discrimination extends to all citizens, regardless of race. As we declared in State v.

Rogers, “[w]hile Batson v. Kentucky . . . has predominately been a tool to deter

discrimination against African Americans or other minorities, this is not the purpose of the

ruling.” 847 So. 2d 858, 862 (Miss. 2003). Instead, “[t]he purpose is to afford a fair and

impartial trial to defendants regardless of their race.” Id. (emphasis added).

¶147. In our increasingly diverse society, this means the prohibition on discrimination must

be respected against all races so that we may honor the critical balancing role the jury plays

in our country. See Batson, 476 U.S. at 87 (“For a jury to perform its intended function as

a check on official power, it must be a body drawn from the community”). Nor may the

prohibition against discrimination be invoked only by the accused; the State may also invoke

Batson. For “[r]egardless of who invokes the discriminatory challenge, there can be no

doubt that the harm is the same–in all cases, the juror is subjected to open and public racial

discrimination.” Rogers, 847 So. 2d at 862 (internal quotations and citations omitted).

                                               76
¶148. It also does not matter whether the accused and a prospective juror share the same

race, as a defendant may object to race-based peremptory challenges regardless of race. See

Powers v. Ohio, 499 U.S. 400, 11 S.Ct. 1364, 113 L.Ed.2d 411 (1991). This is not because

the dismissed jurors may have been predisposed to favor the defendant, but rather “because

racial discrimination in the selection of jurors casts doubt on the integrity of the judicial

process, and places the fairness of a criminal proceeding in doubt.” Id. at 411 (internal

quotations and citations omitted). Likewise, the same reasoning behind the prohibition

against racial discrimination has also been recognized to prohibit gender-based

discrimination. Ultimately, “[d]iscrimination in jury selection, whether based on race or on

gender, causes harm to the litigants, the community, and the individual jurors who are

wrongfully excluded from participation in the judicial process.” J.E.B. v. Ala. ex rel. T.B.,

511 U.S. 127, 140, 114 S.Ct. 1419, 128 L.Ed. 2d 89 (1994).

¶149. In the case at hand, the venire panel gathered for the trial of Ross consisted of sixty-

five white members and six African-Americans. Every one of the black jurors were struck.

The prosecution used its remaining two peremptory strikes against prospective jurors 24 and

25, Wendy Gillard and Sonya Gillard.8

¶150. In her questionnaire, Wendy Gillard indicated that she was a lifelong resident of

Tippah County, spending the entirety of her twenty-seven years there. She had no criminal

history and never knew anyone who had been the victim of a violent crime, and attended her

Baptist church every Sunday and Wednesday night for services. Her hobbies were exercise




       8
           The record does not reflect whether the prospective jurors were related.

                                               77
and reading, and she read the Memphis Commercial Appeal and the Tippah County Southern

Sentinel each week. She had been working at the Carrier Corporation but had been laid off

the month before she was called for jury duty. She regularly watched the local news.

¶151. Prospective juror 25, Sonya Gillard, was employed by Carrier as a production tech.

She had worked with Carrier for five years. She had also studied at Northeast State, the

technical college in Blountville, Tennessee, and attended her Baptist church most Sundays.

She read the Commercial Appeal on a daily basis, read the Southern Sentinel, and watched

the local news. She had no criminal history and never knew anybody that was involved in

a violent crime.

¶152. Prospective jurors 24 and 25 attend their churches regularly; work at local businesses;

and take the local papers. They both were registered to vote and both showed up for jury

duty when called. On paper, they seem like the ideal cross-section of the community.

¶153. Yet the State struck them. Counsel for Ross opposed the strikes, offering only that

“we would object to him removing the last two black jurors I think we’ve got on this panel.”

In response, the prosecutor offered that “Juror 24, Wendy Gaillard [sic], is 27 years old.

She’s single; and the same goes for juror number twenty-five, Sonya Gaillard [sic]. She’s

23 years old. She’s young. She’s single. We believe there is sufficient ties to the

community.” The State apparently meant to offer that the prospective jurors did not have

sufficient ties to the community.

¶154. In upholding the strikes, the only analysis offered by the trial court was that “the

defendant in this case is not a member of a recognizable minority . . . [t]here not even being

an issue of minority or establishing of a pattern, I’m not going to require the State to keep


                                             78
them. I’m going to excuse them.” Ross is white and the prospective jurors were black, but

as examined supra the law makes no distinction on this point. Both this Court and the United

States Supreme Court have made clear that Batson applies no matter the race of the accused

or the potential juror. Powers, 499 U.S. at 411; Rogers, 847 So. 2d at 862. Although the

trial court subsequently recognized that Batson and its progeny do not require that the

objecting party be a member of the same racial group as the party struck, it did not revisit the

earlier ruling allowing the peremptory strikes of the prospective jurors. The trial court’s

misapplication of the law is therefore reversible error.

¶155. Even if the trial judge had used the correct standard of law, the proper analysis under

Batson and our previous case law was not performed. See Rogers, 847 So. 2d at 862

(outlining the burden-shifting process in determining if there has been purposeful

discrimination). If such a process was used it is doubtful that Wendy Gillard and Sonya

Gillard would have been struck from the jury, for these two women were connected to their

communities in at least a half-dozen ways. The trial court likely would have been left with

the conclusion, as I am, that the prospective jurors were amply qualified to serve. From the

record, it appears that there is only one reason the women were struck by the State: both

Wendy and Sonya identified themselves as “black” on their jury questionnaires.

¶156. Jury selection can be a complicated process. Some lawyers look upon it with almost

a superstitious eye, and some turn to statistics or census to gain a different perspective.

There are many ways to select a jury, but we cannot and will not allow one that is tainted by

racial or gender discrimination. In addition to agreeing with the majority that Ross is entitled

to a new trial because of errors in the guilt and sentencing phases of his previous trial, I

                                              79
would also reverse because the trial court utilized the wrong standard in analyzing the

selection of the jury and because the State provided only a pretextual justification why the

prospective jurors were struck.

       WALLER, P.J., GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.



       EASLEY, JUSTICE, DISSENTING:

¶157. As I would affirm Ross’ death penalty conviction and sentence, I am compelled to

write in order to address the majority’s reversal and remand to the trial court for alleged

reversible error and cumulative error.

¶158. In my opinion, the majority erroneously finds reversible error. The majority finds that

(1) the exclusion of Margaret Jones’ statement to Wells; and (2) defense counsel’s alleged

failure to investigate mitigating factors during the sentencing phase of the trial amount to

reversible error.

¶159. In addition, I disagree with the majority’s finding of cumulative error. The majority

finds that: (1) the State’s use of information not in evidence during closing argument; (2)

defense counsel’s alleged failure to explore the tainting of the venire after Martindale’s

second statement; and (3) the exclusion of the ballistics report from evidence requires

reversal due to cumulative error. Lastly, I address two other issues, those being, (1) Wells’

proffered testimony on police investigative techniques; and (2) the weight of the evidence.

       I.     Reversible Error.

              A.     Margaret Jones - Statement to Herbert Wells.

¶160. The majority holds that the trial court erred by failing to follow U.R.C.C.C. Rule 9.04


                                             80
concerning the portions of Jones’ statements to Wells that were suitable for impeachment

purposes. I disagree. The majority finds that a Box v. State, 437 So. 2d 19 (Miss. 1983)

analysis was required. The trial court’s ruling on this issue was not clear. However, Ross

argued his reasoning for allowing the admission of the inconsistency as an impeachment

issue, not a discovery issue.

¶161. Jones gave inconsistent statements concerning the time Ross arrived at Hale’s trailer.

Jones told Wells that Ross arrived at Hale’s trailer between 8:30 and 9:00 p.m., and she

testified at trial that Ross arrived at Hale’s trailer at 11:30 p.m. However, the record reveals

that Jones was questioned on direct examination about the arrival of Ross at Hale’s trailer.

On cross-examination, Ross failed to question Jones further on this issue.

¶162. On direct examination, Jones stated that Ross arrived at Hale’s trailer in the afternoon.

She stated that Ross left around 8:30 to 9:00 p.m. and returned to Hale’s trailer around 11:30

p.m. to 12:00 a.m. Despite Jones’ testimony that Ross came to Hale’s trailer in the afternoon,

left about 8:30 p.m. to 9:00 p.m., and returned around 11:30 to 12:00 a.m., Ross failed to

question Jones on cross-examination about any inconsistencies in her statements to various

people prior to trial. At best, Ross made a vague reference to Jones’ direct testimony, stating:

       Q.     [Ross] was so drunk he was passed out on your couch that whole night,
              wasn’t he?
       A.     After he came in, yeah.
       Q.     After he came in the first time or after he came in the second time.
       A.     The second time.
       Q.     All right, and that’s just as true as anything else you’ve told us.
       A.     Whatever you say.

Additionally, Ross did not pursue any questions on cross-examination with regard to

inconsistencies with statements made as to Ross’ alleged arrival at Hale’s trailer. Ross had


                                              81
an opportunity to question Jones on cross-examination, however, he failed to do so.

Therefore, I find that this does not merit reversal.

              B.      Mitigating Factors.

                      1.     Psychological Testing.

¶163. In Hodges v. State, 912 So. 2d 730, 758-59 (Miss. 2005), this Court set forth the

standard of review for ineffective assistance of counsel as follows:

       Where ineffective assistance of counsel is alleged, "the benchmark [] 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). In addition, the defendant must show that the
       counsel's performance was deficient and that the deficiency prejudiced the
       defense of the case. Id. at 687, 104 S. Ct. 2052. In order to show prejudice
       under the Strickland standard, the [defendant] must show "that there is a
       reasonable probability that, but for counsel's unprofessional errors, the result
       of the proceeding would have been different. A reasonable probability is a
       probability sufficient to undermine confidence in the outcome." Id. at 694,
       104 S. Ct. at 2068. A defendant must make both showings under Strickland,
       otherwise, "it cannot be said that the conviction or death sentence resulted
       from a breakdown in the adversary process that renders the result unreliable."
       Jones v. State, 857 So. 2d 740, 745 (Miss. 2003) (quoting Stringer v. State,
       454 So. 2d 468, 477 (Miss. 1984)).

Hodges, 912 So. 2d at 758-59. This Court also held:

       During trial counsel must make strategic discretionary decisions including
       whether or not to file certain motions, call certain witnesses, ask certain
       questions, or make certain objections. In gauging counsel's performance, we
       must make every effort "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."

Id. (citations omitted).

¶164. The majority holds that there was ineffective assistance of counsel. In this regard,

the majority finds that in a post-conviction psychological examination conducted at the

                                              82
Mississippi State Hospital at Whitfield, some potential mitigating factors were discovered

such as physical abuse, mental abuse, alcohol abuse, and visual and auditory hallucinations.

In addition, evidence presented at the competency hearing indicated that Ross was taking

anti-psychotic medication and depression medication at the time of the evaluation.

Furthermore, the majority finds that Ross and his mother testified about the death of Ross’

ex-wife and four children in a car crash in 1984 and the murder of Ross’ sister in 1982, yet

defense counsel failed to show how these events psychologically affected Ross. The

majority finds that the defense’s failure to investigate Ross’ psychological problems

amounted to ineffective assistance of counsel.

¶165. Ross also cites to numerous places at the competency hearing, which was conducted

after Ross’ trial and imposition of the death penalty, where his trial counsel described Ross

as “stupid” and “thick headed.” 9

       9
          The testimony of Chris Kitchens, Ross’ trial counsel, at the competency hearing
reveals that Ross has taken Kitchens’ statements of “stupid” and “thick headed”out of
context. Kitchens stated that Jim Pannell, co-counsel, Ross, and he considered there to be
a problem with the issue of proof. Since they questioned the State’s ability to prove the case,
the best defense for Ross was to attack any proof of Ross’ guilt. They considered other
alternatives; however, Ross was “adamant” that he was not guilty and not crazy. Kitchens
indicated that this was the trial strategy for Ross’ case, and based on Kitchens’ testimony that
Ross amply participated and gave his opinion on various aspects of his case.

       Kitchens did call Ross “slow” and “thick headed.” Kitchen, on cross-examination,
made it clear that he thought Ross was difficult person to deal with because Ross had his own
ideas about the case. As far as Ross being stupid or thick headed, Kitchens stated:

       Well, like I say the best way I can answer that question is we thought that we
       actually had a shot at the innocence or guilt or innocence. Charles [Ross] was
       thick headed. You might even say stupid as far as trying to tell him something,
       you know he would argue with you because he knew better than you did. And
       I think that’s going back to the argument that him and Jim Pannell had. That
       was basically it. He was telling Jim no that’s not the way to do this or

                                              83
       In Hodges, this Court held:

       Strickland does not require counsel to investigate every conceivable line of
       mitigating evidence no matter how unlikely the effort would be to assist the
       defendant at sentencing. Nor does Strickland require defense counsel to
       present mitigating evidence at sentencing in every case. Both conclusions
       would interfere with the "constitutionally protected independence of counsel"
       at the heart of Strickland, 466 U.S. at 689, 104 S. Ct. 2052. We base our
       conclusion on the much more limited principle that "strategic choices made
       after less than complete investigation are reasonable" only to the extent that
       "reasonable professional judgments support the limitations on investigation."
       Id. at 690-691, 104 S. Ct. 2052. A decision not to investigate thus "must be
       directly assessed for reasonableness in all the circumstances." Id. at 691, 104
       S. Ct. 2052.

Hodges, 912 So. 2d at 764.

¶166. Turning to the mitigating evidence presented during the sentencing phase of the trial,

Ross’ mother, Nellie Bracken, testified on his behalf. She stated that Ross’ paternal

grandmother watched Ross while she worked to support her children. She stated that Ross’

grandmother “treated him bad.” His grandmother used to lock Ross in a closet while his

other siblings were playing. Bracken stated that Ross was scared of the dark closet, and his

grandmother knew it. Bracken stated that she thought this treatment made Ross frightened,

worried, and he would “go to pieces” when she had to leave him everyday.

¶167. Bracken also stated that Ross’ father, Willie Ross, was not part of Ross’ life, provided




       whatever. And me and Jim were both pretty much ringing [sic] our hands and
       Jim is more out spoken than I am and they finally got into a fuss about it.

Kitchens also made it clear that Ross understood the trial process. Kitchen thought that Ross
answered questions appropriately; he was competent; he had his own opinion; but Ross did
not provide the best assistance to Kitchens and Pannell. Therefore, Ross’ assertions are
without merit.


                                             84
no support for his children, and would beat Bracken and her children when he was present.

Even though Bracken testified that Ross had a hard time in school and dropped out at age

fourteen, he earned a G.E.D. and became a plumber while he was in prison. She also stated

that Ross drank beer. When he drank beer, she stated that “it would mess up his mind.”

Often, Ross would do and say things while drinking that were wrong, and he later apologized

for his actions.

¶168. Bracken also stated that Ross’ ex-wife and three young sons were killed by a train in

Arkansas more than eight years ago. The defense counsel then asked:

       Q.      And how did that affect him?
       A.      Rough.
       Q.      Did he have to go in the hospital or anything like that after that?
       A.      No. We took care of him. We talked to him and helped him through it.
               We helped him through it, but he will be affected with it as long as he
               lives.

The defense counsel also questioned Bracken about the violent death of her child and Ross’

sister. Bracken stated that her daughter was shot in the back by a shotgun. She described the

impact that this death had on Ross as being “awful.”

¶169. When questioned about Ross’ ability to know right from wrong, Bracken stated that

she did not believe that Ross “has got the know how sometimes.” She attributed this

difficulty to “probably alcohol and the way he was treated in his lifetime.” According to

Bracken, alcohol was “a big part” of Ross’ problems. Bracken acknowledged that Ross

sometimes became violent and “ran off” family members when he was drinking. Ross later

apologized for his actions. In addition, Bracken stated that she had heard that he was moved

to a different prison for trying to escape, but Ross never told her why he was moved. The



                                             85
prosecution alluded to a number of other instances where Ross allegedly behaved badly in

prison; however, defense counsel objected to all these questions, and the trial court sustained

them.

¶170. Howard Edward Jones, a prison minister, also spoke on Ross’ behalf at the sentencing

hearing. He stated that he believed Ross knew right from wrong. Former Sheriff Leroy

Meeks also testified on Ross’ behalf. He stated that he was the first law enforcement person

to take Ross into custody when Ross was arrested for armed bank robbery. While Meeks did

not know if Ross threw away any shotgun shells, the shotgun that the police recovered at the

time of Ross’ arrest was not loaded. In addition, Meeks stated that Ross never discharged

any bullets during the robbery.

¶171. Ross testified at the sentencing hearing about his life and background. He confirmed

his mother’s testimony that his grandmother beat him and locked him in a closet. In addition,

he told the jury about the deaths of his ex-wife and his children. He stated that he had never

gotten over the deaths of these family members. He also testified about his drinking habits.

While he did not consider himself to be an alcoholic, he stated “[m]ost people would say I

am [an alcoholic]. I would say I ain’t, but that’s the way most alcoholics would react to

that.” He also described his behavior while in prison and admitted to making alcohol in

federal prison.

¶172. Clearly, the jury heard testimony regarding Ross’ physical and mental abuse as a

child. In addition, the jury heard about Ross’ drinking problem that he acknowledged most

people would consider to be alcoholism. Ross and his mother testified to the effect the death

of his ex-wife and young sons had on him. Ross’ mother also told the jury the effect that the


                                              86
death of her daughter and Ross’ sister had on him. Ross’ mother stated that while Ross was

had difficulty with school, he eventually earned his G.E.D. while in federal prison and

learned to be a plumber. Ross’ counsel adequately presented mitigating circumstances

testimony. Therefore, I find this issue to be without merit.

                      2.     Inmate Behavior.

¶173. Ross also argues that his counsel was ineffective for portraying him as a good prisoner

in opening statements when his trial counsel “apparently” did not know about his prior prison

behavior. Specifically, Ross cites to his testimony to the jury at the sentencing phase of trial

about making alcohol and getting drugs in prison. Ross, however, failed to acknowledge his

own unsolicited elaboration on aspects of his prison behavior. At the competency hearing,

Kitchens, Ross’ former trial co-counsel, testified concerning Ross’ prison behavior. Kitchens

stated “me and Jim [Pannell] almost fell through our seat when he said that.” However,

examining the record, Kitchens made clear that the statement was because he and Pannell,

Ross’ co-counsel, were surprised that Ross made harmful statements to the jury about himself

about making alcohol in prison, not that they had no prior knowledge of Ross’ behavior. The

quote Ross forth in his brief was taken out of context. Kitchens actually stated:

       If I can I know one point [Ross] volunteered on the sentencing phase that he
       could make like homemade wine or something like that or get any drugs he
       wanted to in prison and, you know of course me and Jim about fell through our
       seat when [Ross] said that. That obviously did not help him any. I don’t think
       in [the] sentencing hearing.

A review of Ross’ testimony concerning mitigating evidence reveals that on cross-

examination Ross admitted to making alcohol and then volunteered information about being

able to obtain drugs and alcohol in prison. Defense counsel did not elicit this response.

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Therefore, Ross’ claim that his counsel provided ineffective assistance of counsel is taken

out of context and is without merit.

       II.    Cumulative Error.

              A.      Prosecutor’s Closing Statement.

¶174. The majority holds that the prosecutor made inappropriate references in closing

arguments linking Ross’ alleged presence to the scene of the crime. While the majority holds

that this error may not have prejudiced Ross enough to require reversal in Issue III, the

majority in Issue XII, concerning cumulative error, held that the prosecution’s use of

information not in evidence in his closing argument warranted reversal.

¶175. This Court has held that ‘[a]ttorneys are allowed wide latitude in closing arguments”

and “[t]he trial judge is in the best a [sic] position to determine if an alleged objectionable

remark has a prejudicial effect.” Howell, 860 So. 2d at 751.

¶176. Ross cites to two instances in the record where he claims that the prosecution argued

facts not in evidence during the closing arguments. A review of the record reveals that there

was no error, and the issue is without merit. Former Sheriff Mauney testified that Ross was

not at the scene of the crime. However, he explained that Ross’ name was on Mauney’s

crime scene sign-in sheet because a number of the witnesses present at the scene stated that

Ross had been in the vicinity the prior day. Mauney wrote Ross’ name on the sign-in sheet

as a personal note to himself so that he would not forget it.

¶177. On the first occasion of alleged prosecutorial misconduct, the record reveals that Ross

objected to the prosecution’s statement and the trial judge instructed the jury to disregard the

prosecutor’s statement, thus curing any alleged error. On the second occasion, Ross failed

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to make a contemporaneous objection to the prosecutor’s statement. In Rubenstein v. State,

941 So. 2d 735, 755 (Miss. 2006), this Court held that “[t]he contemporaneous objection rule

applies in death penalty cases.” Therefore, this now is procedurally barred on appellate

review. However not waiving the procedural bar, the prosecutor’s second statement, when

read in context, merely informed the jury of the first time that Ross’ name came up in the

investigation.

       In the first instance, the prosecution stated in part:

       [STATE]:              There has been no dispute that Gary Mauney went out to
                             the scene of the crime and was making notes – he was
                             the sheriff then – as far as who was there and things like
                             that. At that time he received information that this
                             defendant was seen in the area that day, no dispute of
                             that.
                             There’s been no dispute –
       [DEFENSE]:            I don’t mean to interrupt, but he’s arguing outside the
                             scope of the evidence.
       [COURT]:              Any statement or remark that doesn’t have any basis in
                             the evidence, the Court instructed the jury to disregard.
                             You can continue, Mr. Luther.

This Court has held that “[w]hen the trial court sustains an objection and admonishes the jury

to disregard the statement, there is usually no error, ‘absent unusual circumstances.’" Caston

v. State, 823 So. 2d 473, 494 (Miss. 2002) (citing Pulphus v. State, 782 So. 2d 1220, 1223

(Miss. 2001)).

¶178. Furthermore, the trial court instructed the jury that any remarks by counsel are

instructive only and not evidence. Jury instruction C-1 stated in part:

       Arguments, statements, and remarks of counsel are intended to help you
       understand the evidence and apply the law, but are not evidence. Any
       argument, statement, or remark having no basis in the evidence should be
       disregarded by you.

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¶179. On the second occasion, Ross failed to object to the alleged reference to facts not in

evidence. When reading the statement in context, it is clear that the prosecution’s statements

merely address the first time that Ross’ name was mentioned in the investigation, not his

actual whereabouts. The prosecution stated:

        One thing [Gary Mauney] had done at the scene – no person that they were
        accusing like Margaret Ann Jones or anybody had told them anything about
        a fellow by the name of Charles Ross; but on Gary’s note down at the bottom
        where he’s at the crime scene taking a list of all the folks standing around out
        there looking, he writes down the name Charles Ross. That is Saturday
        morning after Ray Yancey was killed. That’s the first thing we hear about
        Charles Ross.

In Scott v. State, 878 So. 2d 933, 953 (Miss. 2004), overruled on other grounds, this Court

held:

        “Heightened appellate scrutiny in death penalty cases does not require
        abandonment of our contemporaneous objection rule which applies with equal
        force to death cases. For many years this Court has held that trial errors cannot
        be raised in this Court for the first time on appeal." Williams v. State, 684 So.
        2d 1179, 1203 (Miss. 1996). "If no contemporaneous objection is made, the
        error, if any, is waived. This rule's applicability is not diminished in a capital
        case." Cole v. State, 525 So. 2d 365, 368 (Miss. 1988) (citations omitted).

See also Rubenstein, 941 So. 2d at 755 (“The contemporaneous objection rule applies in

death penalty cases.      Therefore, any issue to which Rubenstein failed to object is

procedurally barred”) (citations omitted). In addition, as addressed above, the trial court

properly instructed the jury in jury instruction C-1 that any remarks by counsel “having no

basis in the evidence should be disregarded” by the jury. Accordingly, I find that there was

no prosecutorial misconduct.

               B.     Martindale – Tainting of the Venire.

¶180. The majority addresses two statements a potential venire person made during voir

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dire. This potential juror, Wanda Martindale, was subsequently struck and did not sit on the

jury. Martindale stated that “I’ve testified against [Ross] in federal court” and indicated that

she would be biased by this fact. Later, Martindale also stated that “I was the victim of a

crime.”

¶181. The majority opinion in Issue I, Section A, finds that it has no basis to determine if

Martindale’s first statement that “I’ve testified against [Ross] in federal court” was

prejudicial since there was no objection and no record on the issue. In Issue IV, Section A,

concerning ineffective assistance of counsel, the majority finds no ineffective assistance of

counsel. Instead, the majority finds that defense counsel should have conducted a cursory

inquiry into the identity of the venire panel, and that the failure to remove Martindale before

her second statement could not be considered trial strategy. Despite these findings, the

majority states that the actions of Ross’ trial counsel likely fell below an objective standard

of reasonableness and thereby constituted error even though it cannot claim that Ross

suffered prejudice. Pursuant to the majority’s findings, Ross failed to meet the Strickland

standard. Hodges v. State, 912 So. 2d at 758-59.

¶182. Under the Strickland standard, if the actions of the defense counsel do not ultimately

result in prejudice, there is no ineffective assistance of counsel. Hodges, 912 So. 2d at

758-59. Nevertheless, the majority, in Issue XII concerning cumulative error, finds that

defense counsel’s failure to explore the possible tainting of the venire amounted to a reason

to reverse on cumulative error.

¶183. Notwithstanding the majority’s analysis, I find no error. As for Martindale’s first

statement, she was struck from the venire and never sat as a juror. Martindale simply stated

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that she testified against Ross in federal court without any further explanation. Martindale

also never specified whether she testified against Ross in a criminal or civil case in federal

court. Therefore, the other prospective venire persons had no knowledge of Ross’ federal

criminal record during voir dire.

¶184. Martindale’s second statement was that she was a victim of a crime and would be

biased by this fact. This statement alone is not egregious and is a common question asked

most venire persons in voir dire. Martindale did not state that she was a victim of a crime

committed by Ross. She simply stated that she was a victim of a crime, which did not inform

the rest of the venire of any potential connection between Martindale and Ross. Accordingly,

I find this issue without merit.

              C.      Exclusion of the Ballistics Report.

¶185. The majority finds the exclusion of the ballistics report does not merit reversal by

itself. However, under a cumulative error analysis, the majority finds that the exclusion of

the ballistics report and the jury’s inability to have the tangible document warrants reversal

of the conviction. I disagree.

¶186. Ross wanted the ballistics report to be admitted into evidence in order to refer to it in

closing arguments or for impeachment. Whether the report was in evidence made no

difference to Ross’ ability to reference the ballistics report in his closing statement. In

addition, Ross’ counsel more than adequately cross-examined law enforcement and the

ballistics expert concerning the report. Officer Wilbanks testified concerning the crime lab

results. The police requested latent fingerprint analysis of the of the gun and provided Ross’

fingerprints. Officer Wilbanks stated the report results were that “no identifications were


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effected” meaning nothing could be positively identified. John Franovich, the crime lab

ballistics expert, read the ballistics report results to the jury. The test results stated that the

recovered bullets could not be positively identified as being fired from the recovered gun.

In other words, Franovich stated that he could not positively say the bullets were fired from

the recovered gun, nor could he exclude the possibility that the bullets were fired from

another gun.

¶187. Both of Ross’ defense attorneys, Kitchens and Pannell, argued closing statements

before the jury. Both of the attorneys specifically referenced the failure to positively link the

recovered gun to the bullets. Mr. Kitchens stated, in part:

       There were no fingerprints of Charles Ross on this gun, on these beer cans, on
       this TV, on that VCR. There was not a positive ballistics match on this gun.

       You heard Mr. Franovich, although it was sort of funny when Jim [Pannell]
       said, “You went to Delta State”; and he said, “No, I didn’t,” sort of funny; but
       he couldn’t squirm out of the fact that he could not positively identify this gun
       as being the murder weapon. He couldn’t do it.

Mr. Pannell, in his portion of Ross’ closing argument, also referenced the fact that Ross

allegedly threw the gun away, yet Ross’ fingerprints were not found on the gun. In addition,

Ross’ counsel also stated that there was nothing to identify the bullets as coming from the

gun.

¶188. Therefore, the jury was made aware of the fact that the report was inconclusive as to

fingerprints and there was no match of the recovered gun to the gun used in the murder. Ross

made no showing of prejudice by the exclusion of the report. Accordingly, I find this issue

without merit.

       III.    Other Issues.


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              A.      Herbert Wells – Police Investigatory Techniques.

¶189. The majority finds that the trial court did not err by excluding the testimony of Herbert

Wells with regard to the police investigatory techniques.10 I agree. The majority finds that

Wells’ proffered testimony on police investigatory techniques failed to establish the

reliability of his testimony pursuant to Daubert and McClemore. I find, in the alternative,

that a review of the record reveals in this case that testimony concerning police investigative

techniques was placed before the jury by other witnesses, which gives Ross’ argument less

credence and absolutely demonstrates that Ross was not prejudiced by the exclusion of

Wells’ proffered testimony.

¶190. The record reveals that Ross never attempted to admit Wells’ report into evidence.

Furthermore, the record reveals that all of Wells’ proffered testimony, and more, was

presented to the jury through other witnesses. In his proffered testimony, Wells testified

generally about the police techniques. In his prior experience, Wells had been responsible

for control and analysis of a number of crime scenes. Wells testified that too many non-law

enforcement personnel were present at the crime scene without a lawful purpose. In addition,

Wells stated that the evidence could have been either accidentally or intentionally disturbed

by the large number of non-law enforcement personnel present at the scene. According to

documents reviewed by Wells, Ross’ fingerprints were the only prints submitted for




       10
           The record reveals that Ross attempted to have Wells qualified as an expert in the
field of criminal investigation. The State objected to Wells being qualified as an expert. The
trial court never specifically qualified Wells as an expert. Instead, the trial court stated that
Wells would not be allowed to testify concerning his expert opinion on investigation, police
techniques, and other matters.

                                               94
comparison results. However, Wells stated that there were no comparison or results for any

of the latent finger prints submitted. In his experience as a law enforcement officer, Wells

testified that fingerprints for each individual involved would be submitted for comparison.

Further, Wells stated that he would not arrest someone based upon a tip provided by person

with unknown credibility. Wells stated that prior to making an arrest, he would investigate

the background of a witness who provided information to him.

¶191. The State objected to Wells’ testimony and expert report based on discovery

violations of U.R.C.C.C.P. Rule 4.04(a) and Rule 9.04(c)(3). The trial court excluded Wells’

testimony on police techniques and stated:

       Do you intend to offer the testimony? Court had asked you to make this offer
       out of the presence of the jury, because Court had told you here at the bench
       I’m not going to let this witness testify concerning an expert opinion on the
       investigation, the technique, the procedure, this type thing, of this
       investigation; so that’s all out.

       The record reveals that Ross’ defense counsel admirably placed the issue of

problematic police techniques before the jury. Ross’ counsel cross-examined a number of

law enforcement personnel and presented the jury with the same concerns that were set forth

in Wells’ proffered testimony. Chief of Police Wilbanks, formerly Chief Deputy Wilbanks,

testified that a number of people were present at the scene. The police requested the crime

lab to test for latent fingerprints on the television, gun, front door of Yancey’s house, and

various other items in Yancey’s home. Officer Wilbanks stated that the crime lab results

showed that none of Ross’ fingerprints were positively identified on any of these items.

Officer Wilbanks also testified that no fingerprints of Donald Ross, Jr.; Jerry Sanders;

Margaret Jones; and Tommy Hale were sent to the crime lab for a comparison.


                                             95
¶192. Officer Wilbanks collected evidence in Yancey’s home. He acknowledged that he had

training to not disturb evidence as it is being collected and did not collect any items with his

bare hands. Officer Wilbanks stated that he did not take a skin sample from Ross to

determine if he had fired a gun within a week of his arrest. Officer Wilbanks also stated that

he did not take Margaret Jones’ or Tommy Hale’s statement, that he did not know these

witnesses, and that he did not perform a criminal record search on them.

¶193. Gary Mauney, then Police Chief of Tippah County, testified that information provided

by witnesses has to be “checked out.” Officer Mauney stated that the police sometimes have

been given false information. Joseph Kellum, a crime lab forensic scientist, stated that he

complied with standard operating procedures.

¶194. Clearly, defense counsel questioned other witnesses about police investigation

techniques. The testimony of Officers Wilbanks and Mauney covered all of the issues that

Wells raised in his proffered testimony. Therefore, the jury had an opportunity to hear

testimony about police techniques, and there is no error.

              B.      Weight of the Evidence.

¶195. The majority goes to great lengths to demonstrate inconsistences in witness testimony

and circumstantial evidence. On the one hand, the majority finds the contradictory testimony

of various witnesses, particularly Jones’ testimony, to be untrustworthy. In addition, the

majority finds the circumstantial evidence to be troubling. Nonetheless, the majority finds

that the trial court did not err, and a new trial is not warranted on this basis alone.

¶196. In Bush v. State, 895 So. 2d 836, 844 (Miss. 2005), this Court stated the standard of

review for the weight of the evidence. “[W]e will only disturb a verdict when it is so

                                              96
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction

an unconscionable injustice.” Id. The issues of weight of the evidence and credibility of

witnesses are clearly within the province of the jury. In Stephens v. State, this Court held:

       Jurors are permitted, and indeed have the duty to resolve the conflicts in the
       testimony they hear. Gandy v. State, 373 So. 2d 1042, 1045 (Miss. 1979).
       Any conflicts in the testimony of witnesses is the province of the jury.
       Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). Who the jury believes
       and what conclusions it reaches are solely for its determination. As the
       reviewing court, we cannot and need not determine with exactitude which
       witness(es) or what testimony the jury believed or disbelieved in arriving at its
       verdict. It is enough that the conflicting evidence presented a factual dispute
       for jury resolution. Id. at 300.

Stephens v. State, 911 So. 2d 424, 436 (Miss. 2005). In Howell, another death penalty case,

this Court addressed the role of the jurors when confronted with conflicting witness

testimony. Howell, 860 So. 2d at 731. This Court held:

       [T]his Court has repeatedly held that "the jury is the final arbiter of a witness's
       credibility." See Williams v. State, 794 So. 2d 1019, 1028 (Miss. 2001);
       Morgan v. State, 681 So. 2d 82, 93 (Miss. 1996). The jury alone determines
       the weight and worth of any conflicting testimony. Hicks v. State, 812 So. 2d
       179, 194 (Miss. 2002).

Howell, 860 So. 2d at 731. Further, this Court also has held:

       This Court has in numerous cases, too many to mention, said that when the
       evidence is conflicting, the jury will be the sole judge of the credibility of
       witnesses and the weight and worth of their testimony. This wise rule applies
       with equal force to the state's witnesses and the appellant's witnesses, including
       the appellant himself. We have repeatedly held that in a criminal prosecution
       the jury may accept the testimony of some witnesses and reject that of others,
       and that they may accept in part and reject in part the evidence on behalf of the
       state or on behalf of the accused. In other words, the credibility of witnesses
       is not for the reviewing court.

Hughes, 735 So. 2d at 276-77 (citations omitted). This Court presumes that juries follow the

instructions provided to them by the trial court, and to find otherwise would make the jury

                                               97
system inoperable. Howell, 860 So. 2d at 733. This Court "also held that “[c]ircumstantial

evidence need not exclude every 'possible doubt,' but only every other 'reasonable' hypothesis

of innocence." Neal v. State, 805 So. 2d 520, 526 (Miss. 2002) (quoting Tolbert v. State,

407 So. 2d 815, 820 (Miss. 1981)).

¶197. Here, the trial court properly instructed the jury concerning the weight and credibility

of the witnesses. Jury instruction C-1 stated, in pertinent part, the following:

       It is your duty to determine the facts and to determine them from the evidence
       produced in open court. You are to apply the law to the facts and in this way
       decide the case. You should not be influenced by bias, sympathy, or prejudice.
       Your verdict should be based on the evidence and not upon speculation,
       guesswork, or conjecture.

       You are the sole judges of the facts. Your exclusive province is to determine
       what weight and what credibility will be assigned the testimony and supporting
       evidence of each witness in this case. You are required and expected to use
       your good common sense and sound honest judgment in considering and
       weighing the testimony of each witness who has testified in this case.

¶198. Ross’ jury had the opportunity to hear conflicting testimony as well as the

circumstantial evidence presented at trial. Pursuant to Mississippi precedent, this Court

presumes that the jury followed the instructions of the court. Accordingly, I find this issue

to be without merit.

                                      CONCLUSION

¶199. For the foregoing reasons, I respectfully dissent with the majority opinion. I would

affirm the conviction and death sentence imposed on Charles Wayne Ross by the Tippah

County Circuit Court jury.

       CARLSON, J., JOINS THIS OPINION.




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