                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2002-DR-00686-SCT

HOWARD DEAN GOODIN (GOODEN)

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                                   05/19/1999
TRIAL JUDGE:                                        HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                          NEWTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                            TERRI L. MARROQUIN
                                                    ROBERT M. RYAN
ATTORNEYS FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL
                                                    BY: JUDY T. MARTIN
                                                          MARVIN L. WHITE, JR.
DISTRICT ATTORNEY                                   KEN TURNER
NATURE OF THE CASE:                                 CIVIL - DEATH PENALTY - POST
                                                    CONVICTION
DISPOSITION:                                        APPLICATION FOR LEAVE TO SEEK POST-
                                                    CONVICTION RELIEF GRANTED IN PART
                                                    AND DENIED IN PART - 08/07/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     Howard Dean Goodin was convicted of capital murder and sentenced to death for the murder of

Willis Rigdon. Goodin's conviction and sentence were affirmed by this Court on direct appeal. See

Goodin v. State, 787 So.2d 639 (Miss. 2001), cert. denied, 535 U.S. 996, 122 S. Ct. 1558, 152 L.

Ed. 2d 481 (2002). Goodin filed his Application for Leave to File Petition for Post-Conviction Relief in this
Court on April 30, 2002, raising nine grounds for relief under the Mississippi Uniform Post-Conviction

Collateral Relief Act, Miss. Code Ann. § 99-39-1 to -29 (Rev. 2000 & Supp. 2002). While many of the

issues are procedurally barred, we consider them to the extent necessary to address Goodin's claims of

ineffective assistance of counsel and mental illness. Finding that he has succeeded in presenting a substantial

showing of the denial of a state or federal right and that his attorney's performance at trial was

constitutionally deficient, we grant Goodin's application for leave to seek post-conviction relief in part and

deny it in part.

                                                  FACTS

¶2.     The following statement of facts is taken from this Court's opinion:

        The events which occurred inside Willis Rigdon's Store and Restaurant in the early morning
        hours of November 5, 1998, were recorded by surveillance cameras. The surveillance
        tapes show a black man, identified as Howard Goodin, entering Rigdon's Store in Union,
        Mississippi, around 1:44 a.m. Goodin browsed around the video rental section for a few
        minutes before pulling a gun on the owner of the store, Willis Rigdon. Goodin then
        disconnected a surveillance camera and the TV and VCR to which it was attached. The
        tape shows Goodin and Rigdon exiting the store carrying the surveillance camera, TV, and
        VCR. The two men reenter the store and exit once again with Goodin waving a gun and
        Rigdon holding his hands in the air. At 1:57 a.m. a witness drove by Rigdon's Store and
        saw Rigdon sitting in his truck on the driver's side and a black man hunched over in the
        passenger side.

        Shortly after 2:00 a.m., Mitchell Graham and his wife, who live about one mile from the
        Union city limits and about four miles from Rigdon's store, were awakened by someone
        knocking on their front door and ringing their door bell. Graham went to the door and,
        without opening the door, asked who was there. There was no response. Thinking it might
        be a trouble maker, Graham's wife called her father and told him to drive down to their
        house to scare the person away. When Graham saw his father-in-law's car, he turned on
        the outside light and opened the door to find Willis Rigdon lying face down in a pool of
        blood on the front porch. Rigdon was bleeding profusely from two gunshot wounds to the
        head and neck. Graham's wife called 911 to request an ambulance.

        Graham asked Rigdon what happened, and he stated that he had been shot and robbed.
        Graham then asked Rigdon if he knew who did it. Rigdon replied, "No, I don't. It was a



                                                      2
black man." Rigdon was then transported to the hospital where he subsequently died as
a result of the gunshot wounds.

Between 3:00 and 3:30 a.m., Goodin was seen in Philadelphia, Mississippi, driving
Rigdon's truck and carrying a large sum of money. Philadelphia is approximately thirteen
miles from the city of Union. At 4:30 a.m., Goodin, still driving Rigdon's truck, went to the
home of his nephew, Kelly Junior Peden, who resides in Philadelphia. Peden noticed that
the steering column of the truck was broken. Goodin later attempted to start the truck with
a screwdriver, but was unable to do so. Peden then became suspicious and told Goodin
that he could not leave the truck in his driveway. Goodin then removed the license plate
from the truck and threw it away.

Goodin left Peden's house and walked to the home of his cousin, Iris Owens, and asked
her to drive him to Union. She told him that she did not drive at night and instead called a
tow truck. The tow truck driver, John Raymond Roberts, picked Goodin up at Owens'
home and drove him to Peden's home. Roberts asked Goodin who owned the truck, and
Goodin responded, "This white fellow in Union." Roberts noticed that the truck had no
license plate and that the steering column was broken. He told Goodin that he would have
to call the police department and have the VIN number run before he could tow the truck.
Goodin told Roberts to do whatever he wanted with the truck but to take him back to
Owens' house. Before the men left the Peden house, Goodin got a TV and VCR out of the
back of Rigdon's truck and put it in the tow truck. Goodin then gave Roberts $50.00 from
a long sock of money he had in his pocket. Roberts then drove him to Iris Owens' house.
As Goodin exited the tow truck, he told Roberts, "You don't know me, and I don't know
you." Goodin took the TV and VCR into Owens' house.

Iris Owens testified that Goodin returned to her house with a VCR and TV. He then left
saying he would be back to get the VCR and TV. Goodin never returned. Later that
morning, the police came to Owens' house. Owen turned the VCR and TV over to the
police. The police asked Owens whether Goodin was armed when he was at her house.
She told the police that she had not seen a gun. She later found a gun hidden among her
crochet items. She then called the police who returned and retrieved the gun.

When Goodin's nephew, Peden, heard about the robbery and description of the truck, he
called the police and told them that a truck fitting that description was at his house. Tow
truck operator Roberts saw the surveillance tapes showing Goodin and Rigdon on a news
broadcast. He too notified the police. Based on the information from the video surveillance
tapes and the statements of Peden, Roberts and Owens, the police began searching for
Goodin. They arrested him later that day at the home of Jetty Mae Kelly in Philadelphia,
Mississippi. He had a stocking filled with $590.00 in his pocket at the time of the arrest.

Goodin was booked, and an officer took him to get a shower and change into jail clothes.



                                             3
        At this time Goodin took $200.00 out of his socks. After his shower, Goodin took another
        $700.00 out of his mouth.

        Goodin was tried as a habitual offender in the Circuit Court of Lamar County for the
        capital murder of Willis Rigdon during the commission of a kidnapping in Count I and
        armed robbery in Count II. Goodin's previous convictions include:

        1972 Shoplifting 2 years

        1973 Burglary 5 years

        1977 Second Degree Sexual Assault 7 years, each
        robbery count, concurrent
        burglary

        1980 Armed Robbery 25 years

        1982 Aggravated Assault 25 years
        armed Robbery
        attempted Armed Robbery
        assault on a Law Enforcement Officer

        1995 Burglary 6 years

        Goodin had been out of prison only five months before the murder. The jury convicted
        Goodin on both counts and sentenced him to death by lethal injection.

Goodin, 787 So.2d at 642-43.

¶3.     On April 30, 2002, Goodin filed his Application for Leave to File Petition for Post-Conviction

Relief with this Court. In order to supplement his original petition, Goodin filed a rebuttal brief with

additional exhibits on November 18, 2002. Therefore, the State has filed a Motion to Strike Petitioner's

Rebuttal Brief which this Court will address in addition to the issues raised by Goodin in his application.

                                             DISCUSSION

¶4.     Goodin's application raises the following issues:

        I. Procedural History



                                                     4
         II. Preservation of Issues

         III. Standard of Review

¶5.      Under these first three issues, Goodin discusses procedural matters which will be discussed as

follows under each issue as necessary.

         IV.      Whether Petitioner's constitutional rights under the Sixth, Eighth,
                  and Fourteenth Amendments of the United States Constitution and
                  Article Three, Sections 24, 26, 28 and 29, of the Mississippi
                  Constitution were violated by numerous instances of prosecutorial
                  misconduct.

¶6.      On direct appeal Goodin alleged that the trial court erred in allowing the State to argue, in closing

argument in the sentencing phase, that Willis Rigdon did not have the protection of the law, the jury system

and the Constitution the night of his murder as did Goodin during his trial. This Court found no reversible

error, stating:

         We have previously found similar arguments to be error, though not reversible since the
         statements were made in isolation. See Wells v. State, 698 So.2d 497 (Miss. 1997);
         Davis v. State, 684 So.2d 643, 654 (Miss. 1996); Shell v. State, 554 So.2d 887, 900
         (Miss. 1989).

         The facts in this case overwhelmingly indicate the defendant's callous indifference to human
         life. The statutory elements supporting the penalty of death should have been easily met.
         In such a case, we find it troubling that the prosecutor would exhibit such blatant contempt
         of the law in order to obtain a death sentence. We have previously cautioned prosecutors
         against using such statements in closing arguments.

         We must conclude that the district attorney and his assistants in this case have either not
         comprehended the law or have simply ignored our prior admonishments. When they took
         their oaths to become attorneys in this state, they swore to "support the Constitution of the
         State of Mississippi...." Miss. Code Ann. § 73-3-35 (2000). Those who take the oath to
         become a district attorney, swear to uphold the Constitution of the United States and the
         Mississippi Constitution. Miss. Const. art. 14, § 268. These oaths are violated when jurors
         are instructed to ignore constitutional rights. Such blatant disrespect of the prior rulings of
         this Court, and more importantly, the constitutional rights of the accused will not be
         tolerated.



                                                       5
        Jury decisions should be based on the rational weighing of facts and law. Unnecessary
        appeals to passion, bias, and prejudice must be avoided. Challenges to a jury to ignore
        constitutional rights and rules of law are reprehensible and will no longer be overlooked.
        We have repeatedly criticized this line of argument and have given fair warning to the bar
        that such statements are in error.

        We once more must condemn as strongly as possible arguments evidencing disrespect for
        the rule of law and the constitutional rights of defendants. However, our review of this case
        indicates that the prosecutors' crude appeals likely did not influence the jury one way or
        the other. Evidence of the defendant's callous indifference to human life in this case is
        overwhelming. The jury's sentence in this case was well-supported by the record. Our
        respect for the rule of law and the findings of juries constrains us to find no reversible error
        on this issue. In a closer case, such statements might affect the jury's verdict and warrant
        reversal, but such is not the case here.

Goodin, 787 So.2d at 653-54.




                A.       Whether the prosecution characterized Petitioner as
                         a liar.

¶7.     During closing argument in the guilt phase of the trial, the district attorney argued that Goodin was

a liar and that the jury should "punish him for that." No objection was made at trial, and the issue was not

raised on direct appeal. Goodin now argues that the district attorney violated his right to a fair trial with

this argument. The State answers first that Goodin is procedurally barred from raising an issue that could

have been raised on direct appeal but was not. See Miss. Code Ann. § 99-39-21(1). The State also

argues that the district attorney was merely arguing the facts, answering Goodin's defense that the State's

witnesses were lying. The State cites Hull v. State, 687 So.2d 708, 721 (Miss. 1996), where we stated,

"It is not improper for a prosecutor to comment that the defendant was lying when the contention is

supported in the record." We agree that this issue is both procedurally barred and without merit.




                                                       6
                B.       Whether the prosecution made impermissible
                         arguments in closing comparing the rights of the
                         victim to the rights of the Petitioner.

¶8.     Goodin argues that it was error to allow the district attorney to make the closing argument that

Willis Rigdon did not enjoy the same rights the night of his murder as Howard Goodin was enjoying during

his trial. As mentioned above, this argument was raised on direct appeal and rejected by this Court. As

such, the State's argument that it is barred by res judicata is correct. See Miss. Code Ann. § 99-39-21(3).




                C.       Whether Petitioner Goodin was denied his right to a
                         fair trial by the willful and repeated actions of the
                         prosecution in this case to comment unfairly on
                         Petitioner's constitutional rights.

¶9.     Goodin next cites numerous cases from this and other jurisdictions, law journal articles, and

professional rules and codes to make the following arguments: (1) prosecuting attorneys have a higher

obligation than other attorneys to seek justice and act in an ethical manner, even if it means that they may

lose a conviction in the process and (2) attorneys representing the State are rarely sanctioned by

professional disciplinary bodies so the courts have an obligation to step into that role where appropriate.

Goodin specifically argues that the State violated his right to a fair trial where, on closing argument in the

sentencing phase, it argued that capital punishment was endorsed by the Bible. There was no objection

at trial by defense counsel, and the issue was not raised on direct appeal. The State argues that Goodin

is procedurally barred from making the argument. We agree. See Miss. Code Ann. § 99-39-21(1);

Berry v. State, 703 So.2d 269, 281 (Miss. 1997) (where this Court found that an issue based on the

prosecutor's statement that capital punishment was commanded by the scripture was procedurally barred

                                                      7
where there was no contemporaneous objection at trial, and that it was acceptable to use the Bible as a

historical reference).

¶10.    Goodin finally argues that this particular district attorney, and his office have continually made

improper arguments in this and other cases, and that Goodin should be granted relief in order to deter such

conduct in the future. Even if such an action would have that result here, this Court would not consider it

here, where this issue is without merit under the authority of this Court.

        The State's Motion to Strike Petitioner's Rebuttal Brief

¶11.    The next two issues are largely concerned with Goodin's mental condition, as Goodin alleges that

he is both mentally retarded and paranoid schizophrenic. Most of the exhibits attached to Goodin's

application are concerned with his mental health background. Included are the pretrial evaluation from Dr.

Gerald O'Brien, dated February 24, 1999 (Exhibit 2); a Social Security disability report dated April 23,

1998 (Exhibit 3); an unsigned psychological evaluation from Dr. Michael Whelan dated May 1998 (Exhibit

4); a mental health evaluation from Dr. David Powers, dated May 25, 1998 (Exhibit 5); a Disability

Determination and Transmittal form dated May 26, 1998 (Exhibit 6); progress notes from Dr. Thomas

Welsh in Laird Hospital dated August 10, 1998 (Exhibit 7); an Intake Evaluation Interview dated July 13,

1998 (Exhibit 8); a Weems Mental Health Discharge/Termination Summary dated February 25, 1999

(Exhibit 9); and an unsworn, undated statement from Dr. Michael Whelan (Exhibit 10). Goodin relies on

these documents in part to argue that he was and is mentally retarded and cannot be executed and that his

trial counsel was ineffective for failure to obtain and be aware of these documents and their contents at his

trial in order that it could be argued he was retarded and mentally ill.

¶12.    The State responded to these arguments in its brief and in some cases alleges that these exhibits

were not probative of the issues or were deficient on various grounds. Goodin then filed his Rebuttal Brief

                                                      8
to which he attached additional exhibits, including some of his school records (Exhibit 1); affidavit of Teresa

Clemons, Goodin's niece (Exhibit 2); affidavit of Tommie Peden Dennis, Goodin's sister (Exhibit 3);

affidavits from Tomika Harris, investigator for the Mississippi Office of Capital Post-Conviction Counsel

(OCPCC) (Exhibits 4-7); affidavits from Deidre Jackson, a paralegal from OCPCC (Exhibits 8-9); an

affidavit of Dr. Gerald O'Brien, dated November 15, 2002 (Exhibit 10); and an affidavit of Robert N.

Brooks, Goodin's trial counsel, dated November 14, 2002 (Exhibit 11).

¶13.    The State subsequently filed its Motion to Strike Petitioner's Rebuttal Brief, in which it argues that

Goodin cannot present new evidence on rebuttal to shore up arguments shown to be weak or without merit

by the State. The State argues that the rebuttal is "an attempt to ambush the State with records and

affidavits that were available to the Petitioner at the time the original petition was filed. This is yet another

example of how the Mississippi Office of Capital Post-Conviction Counsel continuously files apparently

incomplete applications and then seeks to supplement those applications – when the supplemental

information could have been obtained through due diligence at the time the petition was filed." The State

also argues that Goodin's rebuttal is a "blatant attempt to circumvent the statute of limitations." The State

says that it has no procedural mechanism to respond to the new documentation and asks that the rebuttal

be stricken.

¶14.    Although the State is correct in some of its arguments, a number of the OCPCC's actions were

unavoidable, as the law on execution of the mentally retarded changed between the time Goodin filed his

original application and his rebuttal. Therefore, this Court finds that the Motion to Strike Petitioner's

Rebuttal Brief is not well-taken and denies it.




                                                       9
        V.       Whether the execution of the mentally retarded should be
                 prohibited under the Eighth Amendment to the U.S. Constitution
                 as well as Article Three, Section 28, of the Mississippi
                 Constitution.

¶15.    Goodin's application was filed on April 30, 2002. Goodin argued that the execution of the mentally

retarded should be declared unconstitutional. On June 20, 2002, the United States Supreme Court ruled

in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed. 2d 335 (2002), that the execution of

mentally retarded offenders amounted to cruel and unusual punishment and was, therefore, prohibited by

the Eighth Amendment to the United States Constitution. Thus, a large portion of Goodin's argument on

what the law should be on this issue may be disregarded. What must be considered is the extent to which,

if any, Goodin may be entitled to further proceedings under this issue pursuant to Atkins.

¶16.    The Supreme Court added in Atkins:

        To the extent there is serious disagreement about the execution of mentally retarded
        offenders, it is in determining which offenders are in fact retarded. In this case, for instance,
        the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not
        all people who claim to be mentally retarded will be so impaired as to fall within the range
        of mentally retarded offenders about whom there is a national consensus. As was our
        approach in Ford v. Wainwright, with regard to insanity, "we leave to the State[s] the
        task of developing appropriate ways to enforce the constitutional restriction upon its
        execution of sentences." 477 U.S. 399, 405, 416-417, 106 S.Ct. 2595, 91 L.Ed.2d 335
        (1986).

Atkins, 122 S.Ct. at 2250. The Court noted that "[t]he statutory definitions of mental retardation are not

identical, but generally conform to the clinical definitions set forth in n. 3, supra," as stated below:

        The American Association of Mental Retardation (AAMR) defines mental retardation as
        follows: "Mental retardation refers to substantial limitations in present functioning. It is
        characterized by significantly subaverage intellectual functioning, existing concurrently with
        related limitations in two or more of the following applicable adaptive skill areas:
        communication, self-care, home living, social skills, community use, self-direction, health
        and safety, functional academics, leisure, and work. Mental retardation manifests before
        age 18." Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th
        ed.1992). The American Psychiatric Association's definition is similar: "The essential

                                                      10
        feature of Mental Retardation is significantly subaverage general intellectual functioning
        (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least
        two of the following skill areas: communication, self-care, home living, social/interpersonal
        skills, use of community resources, self-direction, functional academic skills, work, leisure,
        health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C).
        Mental Retardation has many different etiologies and may be seen as a final common
        pathway of various pathological processes that affect the functioning of the central nervous
        system." American Psychiatric Association, Diagnostic and Statistical Manual of Mental
        Disorders 41 (4th ed. 2000). "Mild" mental retardation is typically used to describe people
        with an IQ level of 50-55 to approximately 70. Id., at 42-43.

Atkins, 122 S.Ct. at 2245 n.3.

¶17.    Goodin argues that he has met his burden of production, that the issue of whether he meets the

definition of retardation must be submitted to a jury, and that the State should bear the burden of proving,

beyond a reasonable doubt that he is not mentally retarded. In support of his argument, Goodin cites the

recent U.S. Supreme Court cases of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002).

¶18.    After he fired several shots into the home of an African-American family in New Jersey, Apprendi

was indicted on numerous state charges of shooting and possession of firearms. He eventually pled guilty

to two counts of possession of a firearm for unlawful purpose and one count of possession of an explosive.

After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on one of the

counts because it was a hate crime. The judge concurred and rendered an enhanced sentence of twelve

years on that particular count, with shorter concurrent sentences on the other two counts.

¶19.    Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The

Supreme Court agreed, stating, "Other than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." Apprendi, 530 U.S. at 490. However, the Court specifically stated that "Apprendi


                                                      11
has not here asserted a constitutional claim based on the omission of any reference to sentence

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

today." Id. at 477 n.3.

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

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

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

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

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

whether to sentence the defendant to death or some lesser sentence. Id. at 496-97(citing Walton v.

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

sentencing process).

¶21.    The U. S. Supreme Court subsequently decided Ring v. Arizona. Ring addressed the issue of

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

and a judge making findings on aggravating factors, survived Apprendi. The Supreme Court decided it

did not. Despite the efforts in Apprendi to distinguish non-capital enhancement cases from aggravating

circumstances in capital cases in this context, the Supreme Court in Ring found that there was no

difference:

        [W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury,
        to find an aggravating circumstance necessary for imposition of the death penalty. See 497
        U.S., at 647-649, 110 S.Ct. 3047. Because Arizona's enumerated aggravating factors
        operate as "the functional equivalent of an element of a greater offense," Apprendi, 530
        U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by
        a jury.
                                                   ***



                                                     12
                 "The guarantees of jury trial in the Federal and State Constitutions reflect
                 a profound judgment about the way in which law should be enforced and
                 justice administered. . . .If the defendant preferred the common-sense
                 judgment of a jury to the more tutored but perhaps less sympathetic
                 reaction of the single judge, he was to have it." Duncan v. Louisiana,
                 391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

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

Ring, 536 U.S. at 609, 122 S.Ct. at 2443.

¶22.    The State answers that whether Goodin is mentally retarded is not an aggravating factor necessary

for imposition of the death penalty, and Ring has no application to an Atkins determination. The State

also asserts that the burden of proof is on Goodin in this matter, citing this state's post-conviction statute,

Miss. Code Ann. § 99-39-23(7) ("no relief shall be granted under this chapter unless the prisoner proves

by a preponderance of the evidence that he is entitled to such"). This Court agrees with both arguments

of the State.

¶23.    This Court may find either (1) that Goodin does not meet the standard of mental retardation or (2)

that Goodin has met enough of an initial burden to have the matter of mental retardation remanded for a

hearing before the trial court. The Legislature adopted the following standard in Miss. Code Ann. § 41-21-

61(f) (Rev. 2001), dealing with commitments, which states in part:

        (f) "Mentally retarded person" means any person (i) who has been diagnosed as having
        substantial limitations in present functioning, manifested before age eighteen (18),
        characterized by significantly subaverage intellectual functioning, existing concurrently with
        related limitations in two or more of the following applicable adaptive skill areas:
        communication, self-care, home living, social skills, community use, self-direction, health
        and safety, functional academics, leisure and work . . . .




                                                      13
¶24.    Goodin argues that he is retarded. In his original application he relies on the pretrial evaluation of

Dr. Gerald O'Brien, that Goodin had "achieved a verbal IQ of 65, a performance IQ of 60, for a full scale

IQ of 60" on the Wechsler Test. On another test called the Shipley, Dr. O'Brien found that Goodin had

"obtained an estimated (WAIS-R) IQ of 50, which also falls within the mildly retarded range." Dr. O'Brien

found that Goodin was reading at a second grade level and capable of doing math at a first grade level.

Goodin points to Judge Gordon's Report of the trial, where he marked Goodin's intelligence level, as being

"Low (IQ below 70)."

¶25.    The State rebuts this argument by pointing to the rest of Dr. O'Brien's evaluation, where Dr.

O'Brien stated on several occasions that Goodin appeared to be malingering, not trying, or not doing as

well as he was capable of, or was feigning a mental disorder. The State points to Dr. O'Brien's finding of

"no substantial evidence of significant neuropsychological problems," "intentional distortion and feigning

psychological and emotional difficulties," and his conclusion that Goodin was competent and sane. The

State also comments on the remainder of Judge Gordon's trial report, which found that Goodin was

attentive, cooperative and polite. The State argues that Goodin's behavior during and after the

shooting/robbery showed a level of intelligence, reasoning and planning that was inconsistent with a finding

of mental retardation.

¶26.    Goodin then relies on the following items attached to his rebuttal brief: his school records for

grades 1-4 (it appears that Goodin spent three years in third grade); affidavits from relatives stating that

Goodin acted strangely at times; several affidavits from OCPCC personnel stating what other people had

told them about Goodin's behavior; and an affidavit from Dr. O'Brien. While Dr. O'Brien states that if he

had known about Goodin's schizophrenia, he might have made different findings on the issues of IQ and




                                                     14
retardation, Dr. O'Brien's original report shows that he was aware of Goodin's claim of hearing voices, of

considering suicide, of difficulties in school and of being disabled.

¶27.    This Court finds that Goodin has produced enough evidence to be granted leave to proceed in the

trial court on the issue of his mental retardation.

        To that end the standard or definition of mental retardation shall be that enunciated by the
        Supreme Court in Atkins, especially the American Psychiatric Association's definition
        of mental retardation. American Psychiatric Association, Diagnostic and Statistical
        Manual of Mental Disorders IV 39-46 (4th ed. 1994). As Presiding Justice Smith
        recommends in his dissent, we further hold that the Minnesota Multiphasic Personality
        Inventory-II (MMPI-II) is to be administered since its associated validity scales make the
        test best suited to detect malingering. See Id. at 683 (defining malingering as the
        "intentional production of false or grossly exaggerated physical or psychological
        symptoms, motivated by external incentives such as avoiding military duty, avoiding work,
        obtaining financial compensation, evading criminal prosecution, or obtaining drugs"). See
        also United States v. Battle, 235 F. Supp. 2d 1301, 1307 (N.D. Ga. 2001)
        (explaining MMPI and its validity scales and stating that "[t]he MMPI is generally agreed
        to be difficult to cheat on without getting caught").

Russell v. State, No. 1997-DR-00046-SCT, 2003 W L 21403734, at *49 (¶ 251) (Miss. June 19,

2003). Goodin must prove that he meets the applicable standard by a preponderance of the evidence

pursuant to Miss. Code Ann. § 99-39-23(7) (Rev. 2000). This issue will be considered and decided by

the Newton County Circuit Court without a jury.

        VI.      Whether trial counsel for Howard Goodin were ineffective at the
                 penalty phase of his capital trial, depriving him of his Sixth and
                 Fourteenth Amendment right to competent counsel, and his Eighth
                 and Fourteenth Amendment right to have mitigating evidence
                 presented to the jury, as well as his right to counsel under Article
                 III, Section 26, of the Mississippi Constitution.

¶28.    As a preliminary matter the State argues that Goodin's direct appeal attorney, Edmund Phillips,

raised the issue of ineffective assistance of trial counsel, Robert Brooks and Shawn Harris, on direct

appeal. At trial, Will Rigdon, grandson of the victim, identified two videotapes of the occurrence in the



                                                      15
victim's store and identified Goodin as the person on the tapes who was robbing his grandfather. The

specific issue raised on direct appeal was whether trial counsel was ineffective for failure to object to Will

Rigdon's identification of Goodin. This Court resolved the matter as follows:

        First, Goodin must show that the defense counsel's performance was deficient. Perhaps
        Goodin's defense counsel should have objected to the identification by Will Rigdon
        pursuant to M.R.E. 602. However, this does not automatically mean that the error made
        was so serious as to deny Goodin the "counsel" guaranteed him under the Sixth
        Amendment. Goodin must overcome the presumption that, under the circumstances, the
        challenged action might be considered sound trial strategy. Goodin has failed to show any
        evidence that would overcome this presumption. However, even if Goodin had indeed
        met his burden of proof under the first prong of this test, he has failed to meet the second
        requirement set out in Strickland.1

        Goodin must show secondly that the deficient performance prejudiced his defense. The
        record simply does not support this argument. Even if defense counsel had objected to
        the identification by Will Rigdon and had the trial court sustained the objection, the tow
        truck driver later testified that he identified Goodin from the surveillance tapes shown
        during a news broadcast. This identification prompted him to call the police. Finally,
        Goodin identified himself on the tapes from Rigdon's Store during direct examination.

        We find that Goodin's argument does not in any way satisfy the requirements of
        Strickland. The conduct of defense counsel did not fall below the level of effective
        assistance of counsel as guaranteed by the Sixth Amendment. This argument is without
        merit.

Goodin, 787 So.2d at 652.

¶29.    The State argues that Goodin is procedurally barred from raising any additional issues based on

ineffective assistance of trial counsel, as this could have been raised on direct appeal by Edmund Phillips

and was not. The State cites Lockett v. State, 614 So.2d 888 (Miss. 1992), where this Court found

that Lockett's attempt to raise ineffective assistance of trial counsel was procedurally barred, where

appellate counsel, being different from trial counsel, had failed to do so.



        1
            Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).

                                                     16
¶30.    Goodin citesFaraga v. State, 514 So.2d 295 (Miss. 1987) (direct appeal), and 557 So.2d 771

(Miss. 1990) (post-conviction). Faraga was convicted of capital murder and sentenced to death. On direct

appeal Faraga's appellate counsel, being different from trial counsel, raised numerous issues of ineffective

assistance of trial counsel at the guilt and sentencing phases. This Court found all such issues without merit

and affirmed. Faraga subsequently filed an application for post-conviction relief in this Court. This

application raised the issue of possible withholding of exculpatory material by the State from Faraga, or

ineffective assistance of counsel for failure to request the material. This issue was not raised on direct

appeal. This Court granted Faraga's application to proceed in the circuit court. Faraga, 557 So.2d at

775. See also Hymes v. State, 703 So.2d 258, 261 (Miss. 1997) (ineffective assistance claim was

arguably procedurally barred on post-conviction because of not being raised on direct appeal but Court

would allow inmate to proceed where appellate counsel's brief was "exceedingly incoherent" and post-

conviction proceeding was usual avenue for pursuing ineffective assistance claim even where trial and

appellate counsel are different). Therefore, there is conflicting authorityon whether this Court should apply

the procedural bar.

¶31.    The issue of Goodin's mental capacity was first raised when defense counsel filed a Motion for

Psychiatric Examination on December 7, 1998. Defense counsel attached his affidavit stating that he

believed that Goodin was "of insufficient soundness of mind to make a rational defense" in the case and

"should be ordered to submit to psychiatric examination, observation, and evaluation." The motion also

stated that Goodin had been released from prison in June 1998 and during that prison term he was

"incarcerated in the psychiatric ward and was treated by the psychiatrist of said ward." Also on December

7, during Goodin's arraignment, defense counsel mentioned the motion to Judge Gordon, who indicated

he would grant the motion.

                                                     17
¶32.    On December 10, 1998, Judge Gordon entered an Order for Psychiatric and Psychological

Examination stating that Goodin should be examined by Dr. Gerald O'Brien, a psychologist, and Dr.

Donald Guild, a psychiatrist. The order stated that the doctors should "determine [Goodin's] present

ability to stand trial and assist his attorneys in his defense; and further examine him to determine his ability

to know the difference between right and wrong and to understand the nature and quality of his actions

at the time of the alleged offenses. Upon completion of said examination, said psychologist and

psychiatrist shall make a written report of his findings. . . ."

¶33.    On February 10, 1999, Judge Gordon entered an Order for Psychological Examination stating

that Goodin should be examined by Dr. O'Brien. On February 16, 1999, during motions hearing, Judge

Gordon asked if Goodin had been examined. Defense counsel stated that he had, "but that Dr. Guild in

his report requested further examination by Dr. O'Brien, and there is an order entered February 10th

ordering that and scheduled him to go [on] an appointment this Friday, February 19th, 1999, for further

additional examination."

¶34.    The reports made by Drs. O'Brien and Guild were not included as a part of this record in Goodin's

direct appeal. Judge Gordon made no findings on the record and entered no orders on the mental state

of Goodin. Goodin was apparently determined to be competent because otherwise the trial would not

have taken place.

¶35.    Goodin has attached Dr. O'Brien's report, dated February 24, 1999, as Exhibit 2 to his

application. Dr. O'Brien administered, or attempted to administer, a number of tests. Dr. O'Brien

suggested in several places that Goodin may not have been trying very hard: "[H]is degree of apparent

effort and motivation strongly suggest these scores underestimate his level of functioning. . . . Results on

all these tasks must be viewed with caution as they are confounded with this questionable effort and


                                                      18
motivation. . . . [A]bility test results tend to underestimate his overall intellectual functioning and reflect his

level of motivation and cooperation . . . . This pattern is characteristic of individuals who are feigning a

mental disorder, and is rarely seen in those responding truthfully."

¶36.    As to Goodin's mental status examination, Dr. O'Brien stated that Goodin was "less than

cooperative," giving a "slightly incorrect response to an arithmetic question, or refus[ing] to respond when

asked a question which should have been well within his apparent ability range." Goodin described hearing

voices which he said were connected to demons and Satan. Goodin said that he had trouble sleeping and

had suicidal thoughts when incarcerated at Parchman in 1993. He had received some psychological

treatment when previously incarcerated. He complained about not getting his SSI check. He denied that

he was guilty of capital murder.

¶37.    Dr. O'Brien concluded:

        Howard Goodin is a 44 year old African American male whose intellectual functioning
        falls at least in the borderline range, and whose test scores underestimate his intellectual
        functioning. Generally there is no substantial evidence of significant neuropsychological
        problems. His performance on ability tests and his approach to other tasks reflect his
        level of motivation and cooperation, which is strongly suggestive of intentional distortion
        and feigning psychological and emotional difficulties.

        Clinical observations reveal a minimal level of distress, which is likely attributable to his
        current legal situation. He is certainly suspicious of others, especially those in authority,
        which seems consistent with past cultural and institutional experiences. His reported
        hallucinations and other reported beliefs may have similar underpinnings, but appear at
        best extremely exaggerated as to their effect on his functioning.

        It is my opinion, based on all the information available, that he does not exhibit a
        psychosis or other significant psychological disorder which would affect his understanding
        the nature and quality of his actions, including whether they were right or wrong, and
        conforming his behavior to the requirements of the law. He also appears competent to
        stand trial and to assist in his own defense.




                                                       19
¶38.    Goodin also attached, as Exhibit 4 to his application, an evaluation of him by Michael Whelan,

Ph.D., a psychologist in Greenwood. The evaluation is dated May 13, 1998, and was apparently

performed during Goodin's incarceration, though the reason for the evaluation is not known. The unsigned

evaluation is divided into History, Daily Activities, Mental Status, and Conclusion. The primary mental

symptomGoodin complained of for the previous three to five years was auditory hallucinations, for which

he had been treated with anti-psychotic medication. The hallucinations seemed to have a religious basis,

dealing with Jesus, Satan and demons. Goodin also complained of having trouble sleeping. Goodin had

not been hospitalized for psychosis but had been treated as an outpatient. Dr. Whelan did not think

Goodin should be considered competent to manage money should he be awarded disability benefits

because he had been incarcerated most of his adult life. Dr. Whelan found that Goodin "probably has an

IQ in the middle 70's." Dr. Whelan concluded:

        I think the patient suffers from chronic paranoid schizophrenia. His institutional record
        suggest that he is a withdrawn and isolated inmate. He is described as rarely participating
        in conversations on the unit and tends to stay to himself. I think his prognosis for the
        future is guarded due to the chronicity of his symptoms. He probably has a very low
        tolerance for stress and his insight into his illness is limited. However, he has been
        compliant with medication and if he remains compliant when is released from prison, then
        he should be able to function with at least minimal adequacy if his sister's environment is
        stress free.

¶39.    Goodin attached an affidavit from Dr. O'Brien to his rebuttal which states that Dr. O'Brien

conducted his competency evaluation of Goodin with only the documents supplied by the State. Dr.

O'Brien states that he has now reviewed additional materials supplied by Goodin which "would have been

a significant factor in my forensic evaluation." Dr. O'Brien found that the records showing Goodin to be

schizophrenic "would have been significant, not just in terms of determining whether Mr. Gooden was

mentally ill but also for assessing whether he was mentally retarded." Dr. O'Brien stated that Goodin had



                                                   20
an IQ of 60, in the mildly mentally retarded range, but he suspected at the time that Goodin was

malingering. Dr. O'Brien stated that he might have reached a different conclusion had he known of the

records in question. Dr. O'Brien stated that Goodin's school records and social security records were

significant in a determination of retardation. Dr. O'Brien stated that Goodin should have been treated for

schizophrenia and then reevaluated and retested. Dr. O'Brien stated that it was difficult to evaluate whether

someone was retarded when they also suffered from mental illness. Dr. O'Brien "strongly recommended

that Mr. Goodin receive a thorough evaluation both to thoroughly assess his mental illness and to

determine whether he is mentally retarded. Based on the records and my prior testing, I believe that there

is a significant likelihood that Mr. Gooden may in fact be mentally retarded."

                A.       Whether counsel failed to investigate mental
                         retardation.

¶40.    Goodin argues that his trial attorneys failed to investigate his mental retardation at trial. Robert N.

Brooks, one of Goodin's trial attorneys, executed an affidavit which was attached to Goodin's Rebuttal

Brief. Brooks's affidavit contained the following statement:

        When I represented Mr. Gooden, I had just litigated the capital murder trial of Mack
        Wells. In Mr. Wells' case I presented evidence of mental retardation. Because Mr. Wells
        was still sentenced to death, I felt presenting such evidence was futile. Even though I was
        aware of the fact that Mr. Gooden's IQ was low and that I had great difficulty
        communicating with him, I did not raise his retardation or investigate it further for
        mitigation purposes.

¶41.    In addition, even though it could have been raised for mitigation purposes, at the time of Goodin's

trial and direct appeal, execution of the mentally retarded was constitutional. This Court is granting

Goodin's leave to seek post-conviction relief in the trial court based upon his alleged mental retardation.

If Goodin is found to be mentally retarded within the meaning of Atkins then he cannot be executed.




                                                     21
However, if he is found not to be retarded then counsel's allegedly deficient conduct in this area is

irrelevant.

                 B.      Whether counsel failed to investigate mental illness.

¶42.     Robert N. Brooks, one of the defense attorneys for Goodin at his trial, stated the following in his

affidavit:

         I knew something was wrong with Mr. Gooden, besides the retardation, but I really
         couldn't put my finger on why he was so odd. I never knew Mr. Gooden was a
         diagnosed paranoid schizophrenic or that he was receiving Social Security Disability for
         his condition. He mentioned it for the first time in passing on the stand at trial, at which
         point it was too late to follow up with investigation. I have never seen the Laird Hospital
         or Weems Records concerning Mr. Gooden's schizophrenia. I have never seen the
         Social Security Records concerning Mr. Gooden's schizophrenia. Had I known Mr.
         Gooden was certifiably schizophrenic, I would have put doctors on the stand from Laird,
         Weems, etc. to assist in his mitigation. I definitely would have put Dr. Whelan on the
         stand had I seen his 1998 report before trial. I would have given any reports concerning
         prior diagnoses of Mr. Gooden to Dr. O'Brien to consider in his evaluation had I known
         of any of these. Given the time and resources I had to prepare for this capital murder
         trial, there was simply no way I could have known to look for Mr. Gooden's records
         because the times I spoke with the client he was very crazy and not helpful in preparing
         his defense at all. I had to get his sister to talk to him on occasion for me in order to
         explain things to him. I begged Mr. Gooden not to take the stand, but he was completely
         irrational and would not listen to the advice of counsel in that regard.

¶43.     This Court grants Goodin leave to proceed in the trial court on the issue of whether his attorney

was ineffective for failure to investigate whether he was mentally ill. See Wiggins v. Smith, 123 S. Ct.

2527 (2003).

                 C.      Whether counsel failed to investigate client's
                         competency.

¶44.     Goodin argues that "when counsel had Mr. Gooden examined for competency to stand trial, the

evaluator failed to take into account Mr. Gooden' s long-standing history of mental illness and dismissed

his claims about hallucinations, finding him competent. It is unlikely that Mr. Gooden would even have



                                                     22
been found competent to stand trial had counsel done their job." Goodin's argument here is similar to his

argument under 6.B., but this argument also calls into question the nature of the process of determining

a defendant's competency to stand trial and the defense counsel's role in that process. First, defense

counsel did not have Goodin examined; the circuit court did. Defense counsel did not, as far as this Court

can tell, select Dr. O'Brien. It is unknown whether defense counsel did have or could have had any input

into Dr. O'Brien's decision on competency. It is also unknown whether Dr. O'Brien would have

considered any findings by any other doctors in making his decision. He says now that he would have. If

defense counsel had evidence contrary to Dr. O'Brien's conclusions, it would have been advisable to

present those to the circuit court so they could have been considered. Defense counsel now states in an

affidavit that he would have done this but did not have the time or resources.

¶45.    What is known is that defense counsel did not object to Dr. O'Brien's conclusions as incorrect and

did not object to the circuit court's finding of Goodin as competent. Any attempt to raise the circuit court's

finding of competency as erroneous, as Goodin does, is procedurally barred at this point. Only because

this issue is so closely related to the issue of Goodin's mental illness, this Court finds that Goodin be

granted leave to proceed in the trial court on this particular issue.

        VII.     Whether Petitioner was denied his constitutional rights
                 guaranteed by the 6th, 8th and 14th Amendments to the United
                 States Constitution and its Mississippi Constitutional corollary
                 due to the cumulative effect of errors at both the guilt and penalty
                 phases of his capital trial.

¶46.    Goodin next argues that, even if no one error is sufficient by itself to serve as a basis for a grant

of relief, this Court should consider the cumulative effect of the errors alleged by Goodin. As stated above,

this Court grants leave for Goodin to proceed to the trial court on the particular issues enumerated in this

opinion.


                                                     23
        VIII. Whether Petitioner was denied the right to the effective assistance
              of counsel on appeal.

¶47.    Goodin argues that he was denied adequate representation on direct appeal, and that there was

a reasonable probability that, if he had been adequately represented, the result of his appeal would have

been different. Goodin states that appellate counsel failed to raise a majority of the prosecutorial

misconduct claims available; failed to raise the dying declaration issue; and failed to raise trial counsel's

conduct as to the mental health/insanity/competency issue

¶48.    Appellate counsel did raise one issue concerning misconduct over closing argument, which this

Court seemed to find meritorious, except for the fact that Goodin was overwhelmingly guilty, which made

the prosecutor's conduct irrelevant. It does not appear that this Court would have found any of the other

issues concerning misconduct to amount to reversible error, if they had been raised, where the previous

issue did not rise to this level. In addition, these other issues would have been procedurally barred on

direct appeal because there was no contemporaneous objection at trial. This Court finds that failure to

raise these other issues was not ineffective assistance of appellate counsel.

¶49.    As to dying declaration, the merits of that issue are discussed next. In summary, this Court finds

that the trial court did not err in admitting the statement of Willis Rigdon; therefore, appellate counsel was

not ineffective for failure to raise it on direct appeal.

¶50.    As to mental health/insanity/competency, there is little in the appeal record to make much of an

argument. None of the reports made by either Dr. O'Brien or Dr. Guild were made a part of this record

in Goodin's direct appeal. Judge Gordon made no findings on the record and entered no orders on the

mental capacity of Goodin. Goodin took the stand and testified. While his testimony may not have been




                                                       24
articulate or effective, this testimony did not demonstrate that Goodin was insane. This issue is without

merit.

         IX.     Whether the trial court erred in admitting an irrelevant dying
                 declaration in violation of MRE 401, 402, 403 as well as
                 Petitioner's 6th, 8th, and 14th Amendment rights under the
                 Constitution of the United States and its Mississippi
                 constitutional corollaries.

¶51.     Goodin last argues that the trial court erred in allowing Mitchell Graham to testify that a wounded

Willis Rigdon told him that he did not know the man who had shot and robbed him, but his attacker was

a black man. Goodin variously argues that the statement was irrelevant, it was more prejudicial than

probative, and it did not meet the identification criteria necessary for admission as a dying declaration.

¶52.     The State argues that Goodin objected to the statement at trial on a different basis than he is

objecting now; therefore, his objection is procedurally barred. The State also argues that this issue was

not raised on direct appeal and therefore, Goodin is procedurally barred from raising it now. See Miss.

Code Ann. § 99-39-21(1).

¶53.     A review of the record shows that at trial the statement in question was offered both under the

excited utterance hearsay exception found in M.R.E. 803(2) and the dying declaration hearsay exception

found in M.R.E. 804(b)(2). Defense counsel objected, stating that the statement was hearsay, or that the

hearsay exceptions had not been met. Outside the presence of the jury, defense counsel argued that the

statement did not qualify as an excited utterance because the element of spontaneity was not present. As

to dying declaration, defense counsel argued that Willis Rigdon did not believe his death to be imminent

because he was asking for help, and the testimony from Ted Atkins, a paramedic who treated Rigdon, was

not sufficient to support the notion that Rigdon was mortally wounded. The trial court found that the

statement was admissible as a dying declaration.


                                                    25
¶54.    The State is correct that Goodin is raising objections here that are different from those raised

before the trial court. Even more importantly, the State is correct that this issue was not raised on direct

appeal. Goodin is procedurally barred from raising it here.

¶55.    As to the merits of Goodin's argument, Ridgon's statement was obviously relevant. Racial

characteristics are unavoidably important factors in identification of defendants in criminal cases. This does

not mean that race became an "improper issue" in this case as Goodin argues. If Rigdon had stated that

a white man had shot him, that would also be relevant, and Goodin would have fought to have it admitted.

¶56.    Goodin argues that a dying declaration is inadmissible unless it names a specific person. Goodin

cites a number of cases from this Court and others where a specific person was named, but cites nothing

that states that dying declarations are limited to this circumstance. Goodin also argues that Rigdon's

statement could not pass muster as an identification of Goodin under Neil v. Biggers, 409 U.S. 188,

93 S.Ct. 375, 34 L. Ed. 2d 401 (1972). While Rigdon's statement alone did identify Goodin, it is one

piece of circumstantial evidence which supported the State's case. Considering that Goodin could be seen

on the surveillance videotape of Rigdon's store, was driving Rigdon's truck, was in possession of cash, a

pistol, a television and a VCR, Rigdon's statement corroborates this other evidence to a limited extent.

Rigdon's statement was probably unnecessary evidence, but it was not inadmissible on the grounds

argued here. Therefore, this issue is without merit.

                                             CONCLUSION

¶57.    We deny the State's Motion to Strike Petitioner's Rebuttal Brief. We grant Howard Goodin's

Application for Leave to File Petition for Post-Conviction Relief limited to the following issues: (1) mental

retardation; (2) ineffective assistance of counsel on the issue of mental illness and (3) ineffective assistance

of counsel on the issue of competency.

                                                       26
¶58.    Goodin is granted leave to proceed in the trial court on the issue of whether he is mentally retarded

such that he may not be executed under Atkins v. Virginia. The standard or definition of mental

retardation shall be that enunciated by the United States Supreme Court in Atkins. Goodin must prove

that he meets the applicable standard by a preponderance of the evidence pursuant to Miss. Code Ann.

§ 99-39-23(7) (Rev. 2000). This issue will be considered and decided by the Newton County Circuit

Court without a jury.

¶59.    We deny Goodin's application in all other respects.

¶60. APPLICATION FOR LEAVE TO FILE PETITION FOR POST-CONVICTION
RELIEF, GRANTED IN PART AND DENIED IN PART.

     PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND GRAVES, JJ., CONCUR.
McRAE, P.J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




                                                    27
