                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-DR-01290-SCT

KEVIN SCOTT

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         10/23/1998
TRIAL JUDGE:                              HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  JAMES W. CRAIG
                                          JEANE A. THOMAS
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                        LAURENCE Y. MELLEN
NATURE OF THE CASE:                       CIVIL - DEATH PENALTY - POST
                                          CONVICTION
DISPOSITION:                              PETITION FOR POST-CONVICTION
                                          RELIEF IS GRANTED IN PART AND
                                          DENIED IN PART - 10/05/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       EASLEY, JUSTICE, FOR THE COURT:


         PROCEDURAL HISTORY AND STATEMENT OF THE FACTS

¶1.    Kevin Scott (Scott) and Leroy Lynch confronted seventy-four-year-old Richard Lee

in the carport of his home. When Lee’s wife, Lurline, heard voices, she opened the door of

their home and shots were fired at her. She was able to slam the door and initiate a call to
the police. Lee was shot, and Scott fled the scene in Lee’s car. Lee later died from his

wounds. When he was caught, Scott confessed to the shooting, but he later recanted. Scott

claimed that Lynch was the shooter, and he had fled in the car only after Lynch shot Lee.

¶2.    Scott was charged with the capital murder of Lee, with the underlying felony of

robbery. Scott was also charged with aggravated assault of Lurline. Scott was convicted of

both charges and, after a separate sentencing hearing, was sentenced to death for the capital

murder and ten years on the aggravated assault charge. This Court affirmed the conviction

and sentence on direct appeal. Scott v. State, 878 So. 2d 933 (Miss. 2004). Scott now files

this application for post-conviction relief in which he raises twelve claims for relief. We

grant this application for post-conviction relief in part and deny it in part. The sole issue of

whether Scott is mentally retardation is remanded to the trial court for an evidentiary hearing.

All other issues raised by Scott on post-conviction relief are denied. Each issue raised by

Scott is addressed.

                                         ANALYSIS

       I.     Mental retardation

¶3.    Scott argues that he is mentally retarded, and therefore, he should not be executed

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

Chase v. State, 873 So. 2d 1013 (Miss. 2004). Scott asserts that he is entitled to a mental

retardation evaluation by the trial court. Scott’s application is lengthy on the mental

retardation issue, citing problems at and from birth, a family history of mental illness, years



                                               2
spent in special education, and numerous assessment and functioning tests. Scott includes

two affidavits by experts, Dr. L. Mulry Tetlow and Dr. Marc Zimmerman, in his application

on post-conviction relief which state that there is a reasonable basis to believe that upon

further testing Scott would be found to be mentally retarded. Scott also includes affidavits

from teachers, family, and friends on the subject of Scott’s deficiencies in adaptive

functioning.   In December, 2005, Scott was granted leave for an evaluation by Dr.

Zimmerman. After a battery of tests, Dr. Zimmerman opined that Scott is mentally retarded

as that term is defined by the American Association of Mental Retardation (AAMR) and the

Diagnostic and Statistical Manual, fourth edition (DSM-IV-TR).

¶4.    On direct appeal, this Court found that there was insufficient evidence in the record

to remand for a hearing on the issue of mental retardation, or a Chase hearing. Chase v.

State, 873 So. 2d at 1028-29. In Scott, 878 So. 2d at 948, this Court explained how Chase

applied in this case:

               In response to Atkins, we recently handed down Chase v. State, 873 So.
       2d 1013, (Miss. 2004), in which we set forth the criteria and procedure to be
       used both in applying for, and conducting, a hearing for a determination of
       mental retardation. For criminal defendants who file applications for
       post-conviction relief subsequent to Chase, a defendant must provide "an
       affidavit from at least one expert . . . who opines, to a reasonable degree of
       certainty, that: (1) the defendant has a combined Intelligence Quotient ("IQ")
       of 75 or below, and; (2) in the opinion of the expert, there is a reasonable basis
       to believe that, upon further testing, the defendant will be found to be mentally
       retarded, as defined [in the Chase opinion]." Id.

Scott, 878 So. 2d at 948. In Chase, 873 So. 2d at 1029, this Court held:




                                               3
       With the sole exception discussed below, no defendant may be granted a
       hearing on the issue of Eighth Amendment protection from execution, due to
       alleged mental retardation unless, prior to the expiration of the deadline set by
       the trial court for filing motions, the defendant shall have filed with the trial
       court a motion, seeking such hearing. The defendant must attach to the motion
       an affidavit from at least one expert, qualified as described above, who opines,
       to a reasonable degree of certainty, that: (1) the defendant has a combined
       Intelligence Quotient ("IQ") of 75 or below, and; (2) in the opinion of the
       expert, there is a reasonable basis to believe that, upon further testing, the
       defendant will be found to be mentally retarded, as defined herein.

Chase, 873 So. 2d at 1029. However, applying Chase in Scott’s direct appeal, this Court

stated the following:

       Thus, on the record before us, Scott has not established that he is entitled to an
       [sic] Chase hearing. However, should Scott provide the appropriate affidavit
       which complies with the requirements set forth in Chase as an attachment to
       an application for post conviction relief, pursuant to the Mississippi Uniform
       Post-Conviction Collateral Relief Act, Miss. Code Ann. §§ 99-39-1 et seq., he
       could be entitled to a hearing as provided in Chase.

Scott, 878 So. 2d at 948.

¶5.    The State counters that while Scott has now presented such affidavits, it disputes the

findings and methods of Dr. Zimmerman and points out the Dr. Zimmerman failed to

administer the Minnesota Multiphasic Personality Inventory II (MMPI-II). Scott argues that

the MMPI-II is not an appropriate test for individuals with mental retardation. Scott also

notes in his rebuttal that Dr. Zimmerman has explained why the MMPI-II test would be of

“questionable value” because Scott is unable to read beyond a third-grade level. However,

this Court has not disregarded the MMPI-II test. The MMPI-II test is required prior to an




                                               4
adjudication on a claim of mental retardation pursuant to Atkins and Chase. See Jordan,

918 So. 2d at 660; Chase, 873 So. 2d at 1029.

¶6.    We find that Scott’s post-conviction petition with its accompanying application

provided the affidavits this Court deemed necessary to warrant a Chase hearing on the issue

of mental retardation. Scott has provided the necessary information specified in Chase for

a remand by this Court to the trial court for mental retardation hearing. However, prior to

an adjudication on the mental retardation issue, Scott must obtain a MMPI-II test. Therefore,

this issue should be remanded to the Bolivar County Circuit Court for a mental retardation

hearing.

       II.    Prosecution’s conflict of interest

¶7.    Brenda F. Mitchell, an assistant district attorney in Bolivar County, Mississippi,

participated in Scott’s prosecution.1 Two and a half years prior to Scott’s capital murder

trial, Mitchell worked as an attorney at North Mississippi Rural Legal Services. While

employed with Legal services, Mitchell represented Scott at a hearing before an

administrative law judge at the Social Security Administration. At the time of the social

security hearing, Scott was 15-years old. He was declared mentally retarded and mentally

disabled and awarded supplemental security income.




       1
        Scott alleges that Mitchell participated in the case from indictment in 1996, through
the end of trial in October 1998. Her participation included, but was not limited to,
responding to defense motions, submitting discovery disclosures, conducting direct
examination of witnesses at trial and delivering closing argument.

                                             5
¶8.    Scott asserts Mitchell’s participation in his prosecution was an impermissible conflict

of interest where the criminal prosecution was substantially related to the prior civil suit and

where Mitchell used confidential information gained through her prior representation of

Scott. Gray v. State, 469 So. 2d 1252, 1254 (Miss. 1985); Sharplin v. State, 330 So. 2d 591,

594 (Miss. 1976).

¶9.    Scott asserts the social security proceedings concerned his mental capacity, which was

a central issue at his murder trial. Scott claims that as his attorney in the social security

proceedings, Mitchell had access to his confidential files, records, mental health evaluations,

and medical reports, as well as, access to his mother, aunt, and other family members. Scott

asserts Mitchell had an ongoing obligation to maintain the confidentiality of attorney-client

privilege. Scott also points out that, as his advocate, Mitchell argued Scott suffered from

mental retardation.

¶10.   Scott asserts that the State cannot show that Mitchell had absolutely no participation

in the case, divulged no confidential information, and notified the defense promptly of this

conflict.

¶11.   Scott argues this claim is properly raised for the first time in the petition for post-

conviction relief where the conflict was first discovered by post-conviction counsel in April,

2005. Scott asserts the conflict entitles him to relief where this Court has ordered new trials

in cases involving lesser sentences for such conflicts. See Gray, 469 So. 2d at 1255;

Sharplin, 330 So.2d at 596; Aldridge, 583 So.2d 203 (Miss. 1991). See also Wilkins v.



                                               6
Bowersox, 933 F. Supp. 1496 (W.D. Mo. 1996), aff’d, 145 F.3d 1006 (8 th Cir. 1998). Lastly,

Scott argues that the prosecution’s failure to disclose this conflict is a violation of Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

¶12.   The State argues this issue is procedurally barred pursuant to Miss. Code Ann. § 99-

39-21(1) because it was not raised at trial or on direct appeal. The State asserts, too, that

failure to move for Mitchell’s disqualification acts as waiver. The State notes there was

testimony at trial regarding Scott’s testing for social security disability and argues Scott’s

assertion that Mitchell’s involvement in the Social Security Administration proceeding is

newly discovered is incredible.2

¶13.   The State argues that Scott has failed to show a substantial relationship between the

two representations and has failed to show disclosure of confidential information. The State

also points out that, at the time of Scott’s prosecution, Atkins v. Virginia, 536 U.S. 304, 122

S. Ct. 2242, 153 L. Ed. 2d 335 (2002), had not been decided. As such, neither Mitchell nor

the district attorney had any reason not to seek the death penalty based on mental retardation.

¶14.   Miss. Code Ann. Section 99-39-21(1) provides:

       Failure by a prisoner to raise objections, defenses, claims, questions, issues or
       errors either in fact or law which were capable of determination at trial and/or
       on direct appeal, regardless of whether such are based on the laws and the
       Constitution of the state of Mississippi or of the United States, shall constitute




       2
        Scott points out in his rebuttal that while the 1992 Region One Mental Health
Center report was a part of the evidence at trial, Mitchell’s representation of Scott
(documents related to the SSA proceedings) were not part of the record at trial.

                                               7
       a waiver thereof and shall be procedurally barred, but the court may upon a
       showing of cause and actual prejudice grant relief from the waiver.

The record reflects that Scott did not raise this issue on his direct appeal and is now

procedurally barred pursuant to Miss. Code Ann. Section 99-39-21(1). That being said, we

will now examine the merits of the case.

¶15.   In Carr v. State, 873 So. 2d 991, 997 (Miss. 2004), this Court held:

       The purpose of post-conviction proceedings is to bring forward facts to the
       trial court that were not known at the time of the judgment. Williams v. State,
       669 So. 2d 44, 52 (Miss. 1996). The procedure is limited to those facts and
       matters which could not or should not have been brought at trial or on direct
       appeal. Id.; Miss. Code Ann. §§ 99-39-1 to -29 (Rev. 2000 & Supp. 2003).
       If newly discovered evidence would likely produce a different result or verdict
       and the proponent shows that the evidence was "discovered since the trial, that
       it could not have been discovered before the trial by the exercise of due
       diligence, that it is material to the issue, and that it is not merely cumulative,
       or impeaching" then such evidence warrants a new trial. Ormond v. State, 599
       So. 2d 951, 962 (Miss. 1992).

¶16.   Further, in Carr, this Court held:

       To succeed on a motion for a new trial based on newly discovered evidence,
       the petitioner must prove that new evidence has been discovered since the
       close of trial and that it could not have been discovered through due diligence
       before the trial began. Meeks v. State, 781 So. 2d 109, 112 (Miss. 2001)
       (citing Smith v. State, 492 So. 2d 260, 263 (Miss. 1986)). In addition, the
       petitioner must show that the newly discovered evidence will probably produce
       a different result or induce a different verdict, if a new trial is granted. Id.
       This requires a showing that the evidence is material and is not merely
       cumulative or impeaching. n3 Id.

867 So. 2d at 203-04. Since Mitchell’s prior representation is not newly discovered

information, this issue is not proper for post conviction relief. However, this Court will

revisit this issue under an ineffective assistance of counsel argument which will be discussed

                                               8
in Issue IV of this opinion. Trial counsel knew of Mitchell’s representation and chose not

to file a motion to disqualify Mitchell.

¶17.    Scott claims that his new counsel on post-conviction relief learned of Mitchell’s

representation of him on a social security matter. It is clear that Scott’s counsel at trial was

aware of Mitchell’s representation at trial. An e-mail from Scott’s trial counsel, Raymond

Wong, to post-conviction relief counsel indicated that his trial lawyer knew about Mitchell’s

former representation of Scott. The e-mail stated:

        Ms. Brenda Mitchell was with Rural Legal Services at the time of Kevin Scott
        getting his disability check (SSI check - basis: learning disability) which was
        I believe 4 or 5 years before the murder of Richard Lee. At the time of trial,
        I was aware of the above fact but did not file any motion since she was
        neither the lead attorney nor assisting the State in prosecution of Scott’s case;
        I think the attorneys for the prosecution were Laurence Y. Mellen (DA) and
        Glenn Rossi (ADA).

(Emphasis added). Notwithstanding this information and as mentioned above, Scott also

never filed a motion to disqualify Mitchell.

¶18.     In addition, Scott cannot make a claim that this information is newly discovered

evidence as it was known to Scott. Scott also had an expert testify and use the testing

information performed for Social Security disability qualification during the sentencing phase

of the trial.

¶19.    Further, at the time of Scott’s 1998 trial, Atkins v. Virginia, 536 U.S. 304, had yet to

be decided, and therefore, there was no prohibition against execution of individuals that were

mentally retarded. The prosecution had no reason at the time of Scott’s 1998 trial not to seek



                                               9
the death penalty since mental retardation had no impact on a prosecutor seeking the death

penalty. This Court finds this issue to be procedurally barred and without merit.

       III.    Roper v. Simmons

¶20.   Scott argues that at the time the murder was committed, he was six days past his

eighteenth birthday. However, he argues that his level of maturity from a cognitive and

behavioral standpoint was closer to that of a twelve-year old.          Scott argues this is

demonstrated through his school grades, Stanford Achievement Test scores, IQ tests and

special education class assignment. Scott also points to the opinions of Drs. Tetlow and

Zimmerman on his low functioning and cognitive level. He concludes that his death sentence

is unconstitutional pursuant to Roper v. Simmons, 543 U. S. 551, 125 S. Ct. 1183, 161 L. Ed.

2d 1 (2005).

¶21.   The State argues that Scott is not entitled to relief on this issue, noting that he was

eighteen-years old at the time of the murder. The State also points out that this Court has

strictly applied Roper with regard to age limitations and death sentences. See Jordan v.

State, 918 So. 2d 636, 656 (Miss. 2006); Hodges v. State, 912 So. 2d 730, 760 (Miss. 2005).

¶22.   In reality, this claim is an extension of Scott’s argument that he is mentally retarded

as discussed in Issue I. Essentially, Scott is asking this Court to blend the Atkins and Roper

opinions, where Atkins addresses the lesser culpability of a mentally retarded offender and

Roper addresses the lesser culpability of a juvenile offender.

¶23.   This Court in Jordan, held:



                                             10
       In considering death penalty cases via direct appeal and post-conviction relief
       proceedings, we apply the Constitution of the United States, the Constitution
       and laws of the State of Mississippi, and case law as handed down by the
       United States Supreme Court and this Court. Of course, we also look to
       federal court decisions from this State and federal and state court cases from
       our sister states for persuasive guidance. On this note, however, we
       unhesitatingly acknowledge the United States Supreme Court's recent decision
       in Roper v. Simmons, 543 U.S. [sic], 543 U.S. 551, 125 S. Ct. 1183, 161 L.
       Ed. 2d 1 (March 1, 2005), where the Court in a 5-4 decision declared that
       death penalty imposition upon offenders who were under the age of 18 when
       the crimes were committed was violative of the Eighth and Fourteenth
       Amendments to our federal constitution. In reaching this conclusion, the
       sharply divided Court relied in part on national and international studies,
       covenants and treaties. Such reliance generated scathing dissents from Justice
       O'Connor and Justice Scalia, with Chief Justice Rehnquist and Justice Thomas
       joining Justice Scalia's dissent. However, in our case today, we note that
       Jordan's date of birth is December 25, 1976, and the date of these murders was
       October 5, 1995. Inasmuch as Jordan was 18 years of age - and only 81 days
       away from his 19th birthday - at the time of the brutal murders of Tony
       Roberts and 2-year old Codera Bradley, we decline to rely on international
       laws, covenants and treaties in determining whether the death penalty is
       appropriate.

Jordan, 918 So. 2d at 656. See also Hodges, 912 So. 2d at 760 (Roper does not apply to the

imposition of a death sentence where defendant was over eighteen, nor is the sentence in

violation of the Eighth and Fourteenth Amendments).

¶24.   The record is clear that Scott was six days past his eighteenth birthday at the time at

the time of the crime. Therefore, he was over the age of eighteen albeit by a small margin

of time. This Court has upheld death sentences when the defendant was over the age of

eighteen at the time of the crime. Jordan, 918 So. 2d at 656; Hodges, 912 So. 2d at 760.

Scott was undoubtedly over the age of eighteen at the time of his crimes; therefore, pursuant

to Roper, the imposition of Scott’s death sentence is appropriate in this case. This issue is

                                             11
without merit.

       IV.    Ineffective Assistance of Counsel

¶25.   Scott was represented at trial by Wong. On post-conviction relief, Scott is represented

by James W. Craig and Jeane A. Thomas. Scott argues that Wong provided ineffective

assistance of counsel on numerous occasions during the guilt and sentencing phases of his

trial. In Davis v. State, 897 So. 2d 960, 964-64 (Miss. 2004), a post-conviction relief case,

this Court set forth the standard of review for ineffective assistance of counsel.

       The standard for determining if a defendant received effective assistance of
       counsel is well established. "The benchmark for judging any claim of
       ineffectiveness [of counsel] must be whether counsel's conduct so undermined
       the proper functioning of the adversarial process that the trial cannot be relied
       on as having produced a just result." Strickland v. Washington, 466 U.S. 668,
       686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant must demonstrate
       that his attorney's actions were deficient and that the deficiency prejudiced the
       defense of the case. Id. at 687. "Unless a defendant makes both showings, it
       cannot be said that the conviction or death sentence resulted from a breakdown
       in the adversary process that renders the result unreliable." Stringer v. State,
       454 So. 2d 468, 477 (Miss. 1984), citing Strickland v. Washington, 466 U.S.
       at 687. The focus of the inquiry must be whether counsel's assistance was
       reasonable considering all the circumstances. Id.

For Scott to prevail on his claims of ineffective assistance, he is required to demonstrate that

counsel’s performance was deficient and that the deficiency prejudiced the defense of the

case. Strickland, 466 U. S. at 686.

              a) failing to develop and present evidence of mental
              retardation and other mitigating evidence during the
              sentencing phase

¶26.   Scott argues that Wong failed to undertake any investigation whatsoever for more than



                                              12
one year after accepting the case. He argues that Wong failed to hire a proper investigator

and that Wong only spoke to one witness, Scott’s mother, regarding possible mitigation.

Scott claims that Wong’s presentation of little or no mitigating evidence satisfied the first

prong of Strickland. Doss v. State, 882 So. 2d 176, 189 (Miss. 2004); Burns v. State, 813

So. 2d 668, 679 (Miss. 2001); Davis v. State, 743 So. 2d 326, 339 (Miss. 1999).3

¶27.   Scott also argues that the prejudice prong of Strickland was met where the failure to

conduct adequate investigation prevented the jury from hearing evidence of Scott’s mental

retardation, other mental problems, learning disabilities, social interactions, lifestyle, and

other mitigating problems. Scott’s application included affidavits from some of the jurors

stating that had they known of these problems, it would have had an impact on their decision.

¶28.   The State argues that, contrary to what Scott now alleges, his trial counsel did present

testimony on mental retardation. Dr. Tetlow testified during the penalty phase. Further, the

State asserts that Scott’s trial was pre-Atkins so there was no reason for counsel to

investigate or present more evidence of mental retardation.

¶29.   The record reflects that Wong presented evidence of Scott’s mental retardation to the

jury in the sentencing phase of the trial. Dr. Tetlow, Scott’s expert, testified about Scott’s

mental retardation and the various tests that indicated Scott’s I.Q. levels. Dr. Lott, the State’s




       3
         See also Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L.Ed.2d 471
(2003), where the U.S. Supreme Court found ineffective assistance where the attorney failed
to properly investigate and presented only a pre-sentencing report and social services
records.

                                               13
expert, also testified about Scott’s retardation level and I.Q. The majority opinion in Scott’s

direct appeal also discussed much of the testimony provided by these experts at trial,

including Scott’s tests from 1992 used in his social security application. See Scott v. State,

878 So. 2d at 945-48. Further, Scott’s mother was also questioned regarding Scott’s mental

retardation. As previously discussed, in 1998 when this case was tried, Atkins had not been

decided by the United States Supreme Court. We find that Scott’s trial counsel placed the

issue of Scott’s mental retardation before the jury for purposes of mitigation. This issue is

without merit.

              b) failing to adequately prepare the defense expert

¶30.   Similar to Issue IV(a) above, Scott argues that trial counsel failed to adequately

prepare his expert, Dr. Tetlow, for trial by failing to provide relevant information for his

evaluation of Scott. The State argues that Dr. Tetlow was a well-qualified and seasoned

expert witness who has testified in a number of other cases. Dr. Tetlow was given full access

to Scott for evaluation.

¶31.   The record reflects that Dr. Tetlow testified in the sentencing phase on the issue of

Scott’s mental abilities. The direct appeal in this case set forth in great detail the evidence

presented to the jury on the issue of Scott’s mental abilities. Scott, 878 So. 2d at 945-48.

Here, the jury heard evidence on the issue of mental retardation including Dr. Tattle’s

opinion. This issue is without merit.

              c) failing to investigate and discover Mitchell’s conflict



                                              14
¶32.   Scott argues that Wong’s failure to obtain evidence or records for mitigation resulted

in his failure to discover Mitchell’s conflict. Alternatively, Scott argues that if Wong knew

of this conflict, his failure to raise it at trial constitutes ineffective assistance of counsel.

¶33.   This Court reviewed this claim in Issue II above and determined that no conflict

existed. Scott claims that Wong was ineffective for failure to discover that Mitchell

represented Scott in a prior social security proceeding. This is flat wrong, as demonstrated

by the excerpt from Wong’s e-mail to post-conviction relief counsel discussed in Issue II.

As stated in his e-mail, Wong clearly knew about Mitchell’s representation for the social

security matter and did not raise the issue or choose not file a motion to disqualify. Wong

may have chosen to not pursue this action for trial strategy reasons. Further, in 1998, Wong

did not have the benefit of the Atkins and Chase decisions which were decided in 2002 and

2004, respectively. Both Dr. Tetlow and Dr. Lott referred to the 1992 test used for a social

security application and testified about Scott’s I.Q. levels in regard to mental retardation

before the jury. This issue is without merit.

               d) failing to adequately prepare for trial

¶34.   As he did in Issue IV(a), Scott points to the ABA Guidelines 4 and asserts that Wong

failed to adequately prepare a defense. Scott asserts that Wong met with him only three

times, twice before trial and once on the day of trial. Scott argues that those meetings were




       4
        ABA Guidelines for Appointment and Performance of Defense Counsel in Death
Penalty Cases, Section 11.4.1 and 11.4.2. See also Wiggins v. Smith, 539 U.S. at 524.

                                                15
brief. He also claims that Wong called him as a witness without any advance preparation.

He argues that such failure to prepare him for trial was ineffective.

¶35.   The State notes that Wong is an experienced defense attorney and that his time sheets

indicated that he spend adequate time interviewing Scott and preparing for trial. The State

also asserts that Wong met with Scott on seven occasions.

¶36.   The record reflects that Wong, Scott’s trial attorney met with him. Wong also worked

on Scott’s trial more than 300 hours as evidenced in petition for payment submitted to the

trial court. This issue is without merit.

              e) presenting a de facto guilty plea in his opening remarks
              by informing the jury that the murder occurred during a
              robbery in which Scott participated

¶37.   This argument goes to Wong’s opening statement in which he explains that the killing

of Lee occurred during a robbery in which Scott participated. Scott argues that he in no way

indicated that he wished to change his not guilty plea and that Wong’s stipulation to this

element of the charge is the functional equivalent of a guilty plea.

¶38.   On direct appeal, Scott raised this issue as a claim that the trial court should have sua

sponte ordered a mistrial and as an almost indirect ineffective assistance of counsel claim.

On the merits of the claim, this Court found no error, finding that the remarks were entirely

consistent with the testimony provided by Scott on direct examination and with Scott’s theory

of defense. Scott, 878 So. 2d at 953-57. The State argues that Scott cannot demonstrate




                                              16
prejudice, as required by Strickland, where this Court has already found the underlying claim

to be without merit.

¶39.   We find that the merit of this claim has already been decided, therefore, Scott cannot

satisfy the prejudice prong of Strickland on this sub-issue of the ineffective assistance claim.

This issue is without merit.

              f) failing to adequately develop and present evidence
              concerning the lack of a valid Miranda waiver

¶40.   Scott had a suppression hearing for statements that he made to police while in their

custody. Scott argues that his counsel, Wong, failed to inform the trial court of his mental

retardation during a suppression hearing. Scott also argues that had Wong brought this

information to the trial court’s attention, the statements would likely have been suppressed.

However, the record reflects that Wong argued Scott’s alleged mental retardation to the trial

court. The motion to suppress, filed with and heard by the trial court, stated in part:

       10.    The defendant suffers from mental retardation in which his I.Q. range
              is between 60-70 and due to this mental retardation such persons desire
              to please authorities. . .

Wong also filed a number of notices of supplemental discoveries with the trial court which

included witnesses, Scott’s Region One Mental Health Center Record, the Coahoma County

High School records, and Dr. Tattle’s raw test data. The trial court made its ruling after all

of this additional information was submitted to the trial court. Clearly, the issue of mental

retardation was raised by Wong’s suppression motion heard by the trial court. This issue is

without merit.

                                              17
              g) failing to strike jurors during voir dire

¶41.   During voir dire, two jurors, Juror Nos. 58 and 59 indicated that they would

automatically vote for the death penalty. Scott argues that Wong should have elicited

additional voir dire testimony as to these two jurors and/or those jurors should have been

stricken. Instead, when asked by the trial court to provide a list of all jurors who would

automatically vote for the death penalty, Wong allowed the State to provide that list to the

court. The State’s list did not include Jurors Nos. 58 and 59 and, therefore, Scott argues that

these two were not subject to further voir dire questioning.

¶42.   The record reflects that Wong did question Jurors Nos. 58 and 59. During voir dire,

Wong questioned the jurors on the imposition of the death penalty. Initially, Jurors 58 and

59 indicated that they would vote for the death penalty. Juror 58 sat on the jury, and Juror

No. 59 was an alternate. However, when questioned further by Wong, both indicated that

they would consider mitigating evidence when determining whether to impose a life or death

sentence. The record reflects Wong’s questioning as follows:

       By Mr. Wong:          Now, if you will remain standing, the next two questions
                             are to you. If you don’t understand, please raise your
                             hand. Since you are for the death penalty, you are in the
                             penalty phase for this capital murder, would you
                             automatically vote for the death penalty? You would?
                             That’s jurors No. 54, 55, 56, and 59. Then we have No.
                             58.

       (JURORS No. 54, 55, 56, 58, AND 59 RAISE HANDS).

       By Mr. Wong:          Okay. This is the last question. You are in the penalty
                             phase and you are a juror, would you consider mitigation

                                              18
                               evidence irrelevant in your decision to determine life or
                               death in this trial? If you consider it irrelevant, raise your
                               hand. Okay, Jurors No. 54, 55, 56, 58, 59, 62 did not
                               raise their hands. Thank you.

Clearly, Wong inquired whether these jurors could consider mitigating evidence when

considering whether to impose the death penalty. See Welcher v. State, 863 So. 2d 719, 768-

69 (Miss. 2003). This issue is without merit.

              h) failing to competently prepare the appellate brief

¶43.   Wong requested several extensions of time in which to file the appeal brief. He also

obtained the help of another attorney, Karl Keys. Scott argues that Wong gave Keys

insufficient time to prepare the appellate brief and that Wong filed a “draft” brief to avoid

sanctions threatened by this Court.

¶44.   The State points out that the brief was eighty-six pages and included twenty-five

issues. Keys was involved as early as April, 2001, and sent a draft brief to Wong on

November 20, 2002. The State also notes that Scott fails to point to a single claim that he

contends should have been raised on appeal but was not.

¶45.   In Scott’s direct appeal, this Court considered over twenty-five well-briefed issues by

both the defense and prosecution. The appeal resulted in a lengthy seventy-five page

opinion. The affidavit of Karl Keys stated that the brief was “inadequate”; however, there

was no specific cite to any issue that was not raised on direct appeal that should have been

an issue for this Court. There is no evidence that Wong did not prepare an adequate brief.

This issue is without merit.

                                                19
       V.     Improper Aggravating Circumstance

¶46.   The aggravating circumstance, that the capital offense was committed for the purpose

of avoiding lawful arrest, was presented to the jury in connection with the facts that Scott and

his accomplice left the scene of the murder. Scott argues that application of this aggravating

circumstance was improper. He argues that fleeing the scene of the crime should not

translate to the use of the aggravating circumstance of avoiding lawful arrest. Scott also

argues that if the prosecution’s case was correct then Lurline, Lee’s wife, the one witness

who remained alive could and did eventually testify against him. Scott concludes that

applying the avoiding lawful arrest aggravating circumstance in this manner would allow it

to be found in any circumstance where a defendant leaves the scene of the crime.

¶47.   The State notes that this issue was raised on direct appeal and is therefore procedurally

barred pursuant to Miss. Code Ann. § 99-39-21(3). Miss. Code Ann. § 99-39-21(3)

provides:

       The doctrine of res judicata shall apply to all issues, both factual and legal,
       decided at trial and on direct appeal.

We agree. This issue is procedurally barred. Scott, 878 So. 2d at 979-81.

       VI.    Trial Court’s Failure to Accept the Jury’s Initial Verdict

¶48.   At the end of the penalty phase, the jury deliberated and returned to inform the court

that their verdict was not unanimous. After questioning and admonishing the jury to go back

and try to reach a unanimous verdict, the jury returned with a death sentence. Scott argues




                                              20
that it was error for the trial court to convey to the jury that they must reach an unanimous

verdict. Lowenfield v. Phelps, 484 U. S. 231, 236, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988).

¶49.   Scott argues that it was late evening on a Friday where the jury had been sequestered

for the entire trial. He includes affidavits from jurors stating they felt pressured by other

jurors to change their votes and/or that they were concerned they would be sequestered all

weekend otherwise. Scott argues the trial court was required as a matter of law to sentence

him to life in prison after the jury returned with its initial verdict. Bullington v. Missouri,

451 U. S. 430, 101 S. Ct. 1852, 68 L.Ed. 2d 270 (1981).

¶50.   The State argues that this issue was raised on direct appeal and is now procedurally

barred pursuant to Miss. Code Ann. § 99-39-21(3). We agree. This issue is procedurally

barred. Scott, 878 So. 2d at 985-89; Miss. Code Ann. § 99-39-21(3) (“The doctrine of res

judicata shall apply to all issues, both factual and legal, decided at trial and on direct

appeal”).

       VII.   Jury Instructions

¶51.   Scott raises a number of issues concerning the jury instructions provided at his trial,

as follows:

              a) lesser-included offense instruction

¶52.   Scott asserts that the jury should have been given a lesser-included offense instruction

where the evidence supported a lesser-included offense of murder rather than capital murder.

This issue was raised on direct appeal and is now procedurally barred.



                                              21
              b) jury should have been instructed on the weight it should
              afford the interrogational statements

¶53.   Scott asserts that the jury should have been instructed of its right to assess the

credibility of the statements made to police after his arrest. This issue was raised on direct

appeal and is procedurally barred.

              c) jury should have been instructed on the credibility of
              eyewitnesses

¶54.   Lurline, Lee’s wife, identified Scott as the one who shot her husband. Scott argues

that his identification was based on allegedly seeing him for only a few seconds the day of

the incident. Additionally, Scott notes that this is a cross-racial identification and should be

viewed with skepticism. This issue was raised on direct appeal and is procedurally barred.

              d) the jury should have been instructed that failing to stop
              Leroy Lynch from killing Lee is not murder

¶55.   Scott asserts that failing to give an instruction that guilt by association alone does not

indicate a criminal act was error. This issue was raised on direct appeal and is procedurally

barred.

              e) the sentencing instructions do not sufficiently define
              mitigation

¶56.   Scott argues that Penry v. Johnson, 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9

(2001), requires a jury be given instructions on the standard of proof for mitigation. He

argues the instruction provided this jury fails to state precisely what is meant by mitigation

evidence. This issue was raised on direct appeal and is procedurally barred.



                                              22
       VIII. Erroneous Striking of Prospective Jurors

¶57.   Scott argues that the trial court impermissibly struck a prospective juror, Juror No. 49,

who stated that she could conform her conduct with the law. Scott also argues that the trial

court failed to strike prospective jurors, Jurors No. 58 and 59, who stated that they could not

conform their conduct to the law.

¶58.   Prospective Juror No. 49 was struck by the trial court for cause because she indicated

to defense counsel that she was opposed to the death penalty. Scott argues that the trial court

had a duty to ask questions and to explore the depths of the juror’s convictions as to the death

penalty. Wainwright v. Witt, 469 U.S. 412, 423, 105 S. Ct. 844, 83 L. Ed. 2d 841(1985).

This issue is procedurally barred for failure to raise the issue at trial or on direct appeal.

Miss. Code Ann. § 99-39-21(1). Turning to the merits, Juror No. 49 clearly indicated that

she could not vote for the death penalty in any event; and therefore, her ability to follow the

law and instructions of the court was substantially impaired. There was no error in excluding

this juror.

¶59.   Further, Scott argues that Jurors Nos. 58 and 59 stated they would automatically return

a verdict of death.5 Scott argues that these two jurors should have been excused or that the

trial court should have made a detail inquiry into whether these jurors would follow the law.

Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). This




       5
         These two jurors were previously discussed in Issue IV(g). That issue also had
excerpts from the voir dire wherein the defense counsel questioned these prospective jurors.

                                              23
issue is procedurally barred for failure to raise the issue at trial or on direct appeal. Miss.

Code Ann. § 99-39-21(1).

¶60.   Turning to the merits, this issue was previously discussed in Issue IV(g), one of these

prospective jurors actually sat on the jury and the other was an alternate. Again, defense

counsel questioned these jurors further, asking if they would consider mitigating evidence

and both said that they would. Scott now argues that the trial court had a responsibility to

further question and, possibly, excuse these two jurors. He argues that failure to do so

resulted in an inadequate voir dire. Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119

L. Ed. 2d 492 (1992); Witherspoon, 391 U.S. at 519. As to Jurors Nos. 58 and 59, there

were follow up questions which indicated that these jurors could and would consider

mitigating evidence in their sentencing decision, discussed in Issue IV(g). Therefore, the

trial court was not required to strike these jurors. This issue is without merit.

       IX.    Improper Miranda Waiver

¶61.   On the day of his arrest, Scott made two statements to law enforcement, one at 4:45

p.m. and another at 7:05 p.m. Portions of both interrogations were recorded, and both were

transcribed. According to the transcript of the 4:45 p.m. statement, when Scott is asked if

he understood his rights responded, “How long will a lawyer take. . . you give?” In response,

the officer again asked if Scott understood his rights. Scott responded, “yes.” In the 4:45

p.m. statement, Scott denied any involvement in Lee’s murder. The defense filed a motion

to suppress both statements on the basis that they were involuntarily given. Scott asserted



                                              24
that, after being read his rights during the first interrogation, he asked for an attorney and was

ignored.

¶62.   At the hearing of that motion, the trial court asked to listen to the tape recording of

Scott’s 4:45 p.m. statement. After listening several times, the trial court determined that it

could not understand what Scott said and, subsequently, held that Scott did not make a

demand for an attorney.

¶63.   Scott argues that he invoked his right to counsel following the reading of his Miranda

rights, but that his request for an attorney was ignored. He argues that it was unreasonable

for the police officer to continuing questioning him after he had requested an attorney.

Furthermore, Scott argues that because he is mentally retarded he was unable to understand

the meaning of his constitutional rights and the consequences associated with a waiver.

¶64.   The State asserts that this claim was not raised on direct appeal and is now

procedurally barred pursuant to Miss. Code Ann. § 99-39-21(1). Without waiving the

procedural bar, the State argues that Scott is not entitled to relief on this claim where he has

provided no record to support his claim.6

¶65.   We find that the issue is procedurally barred for failure to raise it on direct appeal.

Without waiving the procedural bar, we will briefly examine the merits of Scott’s argument.

Scott had a suppression hearing for statements that he made to police while in their custody.


       6
          As noted above, the transcript of the hearing held on April 30, 1998, includes the
trial court’s finding on whether Scott invoked his right to counsel. A copy of this transcript
is included as Exhibit 1 to Scott’s rebuttal.

                                               25
Scott argues that his counsel, Wong, failed to inform the trial court of his mental retardation

during the suppression hearing. Scott also argues that had Wong brought this information

to the trial court’s attention, the statements would likely have been suppressed.

¶66.     However, the record reflects that Wong argued Scott’s alleged mental retardation to

the trial court. The motion to suppress, filed with and heard by the trial court, stated in part:

         10.   The defendant suffers from mental retardation in which his I.Q. range
               is between 60-70 and due to this mental retardation such persons desire
               to please authorities. . .

In addition, the motion referenced Scott’s alleged failure to voluntarily waive his rights. The

motion also stated in part:

         11.   The statements made to law enforcement officers while Kevin Scott
               was I custody were not ‘the product of an essentially free and
               unconstrained choice by its maker.’ [citation omitted] Because the
               statements were not made voluntarily, admission of the statements at
               trial would violate the defendant’s right to due process of law
               guaranteed by the Fourteenth Amendment to the United States
               Constitution.

Wong also filed a number of notices of supplemental discoveries with the trial court which

included witnesses, Scott’s Region One Mental Health Center Record, the Coahoma County

High School records, and Dr. Tattle’s raw test data. This additional information was

provided to the trial court prior to the ruling. This issue is procedurally barred and without

merit.

         X.    Prosecution Error




                                               26
¶67.   This claim goes to the prosecutor’s closing argument in which he made references to

scripture and to “the Almighty.” Scott argues that this Court has held that the prosecution

may not request the jury to return a particular verdict for any reason other than the law and

the evidence. Griffin v. State, 557 So. 2d 542 (Miss. 1990); Williams v. State, 522 So. 2d

201, 209 (Miss. 1988); Wells v. State, 463 So. 2d 1048 (Miss. 1985); Fulgham v. State, 386

So. 2d 1099 (Miss. 1980).

¶68.   The State asserts that this claim is procedurally barred pursuant Miss. Code Ann. § 99-

39-21(3) where it was addressed on direct appeal. We agree. Since this issue was raised on

direct appeal, it is procedurally barred.

       XI.    Race

¶69.   Scott argues that Mississippi’s death penalty scheme is unconstitutional because it

operates on the basis of race. He cites statistics which indicate that black defendants charged

with killing white victims are 800% more likely to receive the death penalty. The State

argues that this issue was raised on direct appeal and is now procedurally barred pursuant to

Miss. Code Ann. § 99-39-21(3). We agree. Since this issue was raised on direct appeal, it

is procedurally barred.

       XII.   Cumulative Errors

¶70.   In Foster v. State, 639 So. 2d 1263, 1303 (Miss. 1994), this Court held “[a]s

previously discussed under the individual propositions, no reversible error was committed

in the trial of this case. We find no ‘near errors’ in either phase of this trial, so we find no



                                              27
cumulative error.” In Gray v. State, 887 So. 2d 158, 172-73 (Miss. 2004 ), a post-conviction

case, this Court held:

       Next, Gray argues generically that the alleged preceding errors, taken as a
       whole, deprived him of a fair trial. This Court has previously held that "where
       there is 'no reversible error in any part, . . . there is no reversible error to the
       whole." Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003) (quoting McFee
       v. State, 511 So. 2d 130, 136 (Miss. 1987)). Since Gray has not yet shown any
       actual error by the trial court, there can be no cumulative effect and no adverse
       impact upon his constitutional right to fair trial. This issue is without merit.

Gray, 887 So. 2d at 172-73.

¶71.   In Nixon v. State, 641 So. 2d 751, 755-56 (Miss. 1994), a post-conviction relief case,

this Court considered the issue of cumulative error. This Court held:

       This Court is now asked to determine whether the cumulative effect of any
       discovered errors or "near-errors" constituted a violation of Nixon's right to a
       fair trial. See, e.g., Stringer v. State, 500 So. 2d 928, 946 (Miss. 1986) (death
       sentence vacated in view of numerous "near-errors" which violated defendant's
       right to a fair trial). Nixon raised this issue on direct appeal. Nixon v. State,
       533 So. 2d 1078, 1102 (Miss. 1987), cert den. 490 U.S. 1102, 109 S.Ct. 2458,
       104 L. Ed. 2d 1012 (1989). This Court has again examined the record and
       determined that Nixon received a fair trial--albeit not a perfect one. See Sand
       v. State, 467 So. 2d 907, 911 (Miss. 1985) ("Although this defendant did not
       receive a perfect trial, it was a fair trial."); see also Stringer, 500 So. 2d at 947
       ("There has never been a perfect trial." (R.N. Lee, P.J., dissenting)).

       In sum, this Court holds that the contention presented through this issue is
       devoid of merit.

Nixon, 641 So. 2d at 755-56.

¶72.   Scott raises a cumulative error claim on post-conviction relief. Scott also raised the

issue of cumulative error in his direct appeal. Scott, 878 So. 2d at 997-98. This Court found

no cumulative error in Scott’s direct appeal to merit reversal of the conviction or sentence.

                                                28
Id. To the extent that any issues raised by Scott on post-conviction relief are the same as

those raised in his direct appeal, this Court finds that these issues are procedurally barred.

Byrom v. State, 927 So. 2d 709, 729 (Miss. 2006). As to the new issues raised on post-

conviction relief by Scott and previously addressed by this Court in this opinion, Scott has

failed to demonstrate any error with these new claims. Gray, 887 So. 2d at 172-73; Nixon,

642 So. 2d at 755-56. This issue is without merit.

                                      CONCLUSION

¶73.   For the foregoing reasons, the petition for post-conviction relief is granted in part and

denied in part. This Court grants Scott’s petition for post conviction relief on the sole issue

of mental retardation and remands this issue to the Circuit Court of Bolivar County to

conduct an evidentiary hearing on the mental retardation issue pursuant to the guidelines

expressed by this Court in Chase. The petition is denied as to all other issues raised in

Scott’s petition for post-conviction relief.

¶74. PETITION FOR POST-CONVICTION RELIEF IS GRANTED IN PART AND
DENIED IN PART.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN PART AND
DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.




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