                     IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 1999-DR-00647-SCT

CHARLES RAY CRAWFORD

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:
TRIAL JUDGE:                               HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED:                 TIPPAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    THOMAS C. LEVIDIOTIS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JAMES M. HOOD, III
DISTRICT ATTORNEY:                         JAMES M. HOOD, III
NATURE OF THE CASE:                        CRIMINAL - DEATH PENALTY - POST
                                           CONVICTION RELIEF
DISPOSITION:                               POST-CONVICTION RELIEF DENIED -
                                           12/04/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       McRAE, PRESIDING JUSTICE, FOR THE COURT:


¶1.    Charles Ray Crawford was convicted of burglary, rape, sexual battery, and capital

murder in the death of Kristy Ray. Crawford was then sentenced as a habitual offender to death

by lethal injection. This Court affirmed Crawford’s convictions and sentences in Crawford

v. State, 716 So.2d 1028 (Miss. 1998). Subsequently, this Court denied the motion for

rehearing on June 18, 1998. The United States Supreme Court denied Crawford’s petition for
certiorari on November 30, 1998. Crawford v. Mississippi, 525 U.S. 1021, 119 S.Ct. 550,

142 L.Ed.2d 458 (1999). Crawford’s motion for rehearing was denied on February 22, 1999.

Crawford v. Mississippi, 525 U.S. 1172, 119 S.Ct, 1100, 143 L.Ed.2d 99 (1998).

¶2.    Crawford filed his pro se petition for post-conviction relief in this Court. In

accordance with Jackson v. State, 732 So.2d 187 (Miss. 1999), this Court remanded the post-

conviction proceedings to the Tippah County Circuit Court for appointment of qualified

counsel to represent Crawford on June 24, 1999.

¶3.    Counsel was appointed and filed a Petition for post-conviction relief, which is presently

before this Court. Subsequent to the filing of his brief and upon his request, the Circuit Court

of Tippah County relieved counsel of further responsibility and appointed the Mississippi

Office of Capital Post-Conviction Counsel to continue. Contemporaneously with his petition

for post-conviction relief, Crawford has filed an Application for Leave to File Motion to

Vacate the Judgment and Death Sentence.

                                             FACTS

¶4.    Since Crawford has raised a rather large number of issues and sub-issues, the Court

finds that convenience and efficiency dictate that only the facts pertinent to the deciding of this

petition need be addressed in this decision. For a more detailed statement of facts, see

Crawford, 716 So.2d at 1032-37.




                                  STANDARD OF REVIEW



                                                2
¶5.    Post-conviction review is a limited proceeding whereby this Court will only review

“those objections, defenses, claims, questions, issues or errors which in practical reality could

not or should not have been raised at trial or on direct appeal.” Cabello v. State, 524 So.2d

313, 323 (Miss. 1988) (quoting Miss. Code Ann. § 99-39-3(2) (Supp. 2003)).

¶6.    Claims and theories that could have been but were not presented to the trial court or to

this Court on direct appeal are procedurally barred from being reviewed by this court on post-

conviction review. Lockett v. State, 614 So.2d 888, 893 (Miss. 1992). Likewise, all issues,

both factual and legal, that were decided at trial and/or on direct appeal are barred from review

as res judicata. Miss. Code Ann. § 99-39-21(3) (Supp. 2003).

¶7.    The burden of proving that no procedural bar exists falls squarely on the petitioner.

Lockett, 614 So.2d at 893. For this Court to hear claims or theories that were not presented

at trial or on direct appeal, the petitioner must show cause for not having already brought the

claim and that this caused actual prejudice to his case. Lockett v. State, 614 So.2d at 893. To

create an exemption from the procedural bar under res judicata principles, petitioner must

show that his “claim is so novel that it has not previously been litigated” or that “an appellate

court1 has suddenly reversed itself on an issue previously thought settled.” Id. (quoting Irving

v. State, 498 So.2d 305, 311 (Miss. 1986)). Petitioner will also defeat procedural bar if he

can demonstrate that “he has evidence, not reasonably discoverable at the time of trial, which

is of such nature that it would be practically conclusive that had such been introduced at trial




       1
        The applicable statute identifies these courts as the Supreme Court of the United States and
the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-23(6).

                                                   3
it would have caused a different result in the conviction or sentence. Miss. Code Ann. § 99-

39-23(6).

¶8.     In his petition, Crawford raises a plethora of ineffective assistance of counsel claims.2

The standards applicable to an ineffective assistance of counsel claim are:

        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, 2064,
        80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel's
        performance was deficient and that the deficiency prejudiced the defense of the
        case. Id. at 687, 104 S.Ct. at 2064. "Unless a defendant makes both showings,
        it cannot be said that the conviction or death sentence resulted from a
        breakdown in the adversary process that renders the result unreliable." Stringer
        v. State, 454 So.2d 468, 477 (Miss.1984), citing Strickland, 466 U.S. at 687,
        104 S.Ct. at 2064. The focus of the inquiry must be whether counsel's assistance
        was reasonable considering all the circumstances. Id.
        Judicial scrutiny of counsel's performance must be highly deferential. (citation
        omitted) ... A fair assessment of attorney performance requires that every effort
        be made to eliminate the distorting effects of hindsight, to reconstruct the
        circumstances of counsel's challenged conduct, and to evaluate the conduct
        from counsel's perspective at the time. Because of the difficulties inherent in
        making the evaluation, a court must indulge a strong presumption that counsel's
        conduct falls within the wide range of reasonable professional assistance; that
        is, the defendant must overcome the presumption that, under the circumstances,
        the challenged action "might be considered sound trial strategy." Stringer, 454
        So.2d at 477, citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Defense
        counsel is presumed competent. Finley v. State, 725 So.2d 226, 238
        (Miss.1998), quoting Foster v. State, 687 So.2d 1124, 1130 (Miss.1996):
        Johnson v. State, 476 So.2d 1195, 1204 (Miss.1985).
               Then, to determine the second prong of prejudice to the defense, the
        standard is "a reasonable probability that, but for counsel's unprofessional
        errors, the result of the proceeding would have been different." Mohr v. State,
        584 So.2d 426, 430 (Miss.1991). This means a "probability sufficient to


        2
          This Court will address such allegations on post-conviction review when, as here, petitioner
was represented by same counsel at trial and on direct appeal and is represented by different counsel
on petition for post-conviction review. See Ford v. State, 708 So.2d 73, 74 (Miss. 1998); Dunn v.
State, 693 So.2d 1333, 1339-40 (Miss. 1997).

                                                   4
        undermine the confidence in the outcome." Id. The question here is whether
        there is a reasonable probability that, absent the errors, the sentence--including
        an appellate court, to the extent it independently reweighs the evidence--would
        have concluded that the balance of the aggravating and mitigating circumstances
        did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.
            There is no constitutional right then to errorless counsel. Cabello v. State,
        524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430
        (Miss.1991) (right to effective counsel does not entitle defendant to have an
        attorney who makes no mistakes at trial; defendant just has right to have
        competent counsel). If the post-conviction application fails on either of the
        Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281
        (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991). Davis v. State, 743
        So.2d 326, 334 (Miss.1999), citing Foster v. State, 687 So.2d 1124, 1130
        (Miss.1996).


Woodward v. State, 843 So. 2d 1, 7 (Miss. 2003).

        I.      Whether Crawford was denied due process by the failure to
                disclose an F.B.I. Report Prior to trial .

¶9.     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.3 Id.




        3
         However, the United States Supreme Court has held that in situations where the reliability of a
certain witness may be determinative of the outcome, non-disclosure of material credibility evidence
may be grounds for a new trial. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766,
31 L.Ed.2d 104 (1972).The discovery of non-material, impeachment evidence alone is usually not
considered sufficient to warrant a new trial. Ormond v. State, 599 So.2d 951, 962 (Miss. 1992).

                                                   5
¶10.   Evidence is material only if there is a reasonable probability (i.e., “probability sufficient

enough to undermine confidence in the outcome”) that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. De La Beckwith v. State, 707

So.2d 547, 572 (Miss. 1997) (quoting United States v. Bagley, 473 U.S. 667, 681, 105 S.Ct.

3375, 3383, 87 L.Ed.2d 481 (1985)).

¶11.   Aside from a general assertion that the non-disclosure impaired defense counsel’s

ability to cross-examine F.B.I. witnesses, Crawford claims that the newly discovered evidence

directly contradicts the testimony of F.B.I. agent Joe Jackson. Because, according to

Crawford, this new evidence “had potential to be a valid impeachment device,” a new trial

should be granted. We disagree.

¶12.   Crawford’s main argument is that the F.B.I. report contains a statement that directly

contradicts Agent Jackson’s testimony. At trial, Agent Jackson stated that the F.B.I. would not

have been able to find the victim’s body “in the time that was done without his (Crawford’s)

assistance.” The report contains a statement that a search plane “was utilized and extremely

beneficial in guiding the search team to the victim’s body. In fact, it was quite possible [that

the] victim might not have been located that evening without [its use].”

¶13.   These statements are not directly contradictory. When read together, they indicate that

it would have been difficult to find the body in a certain time frame without Crawford’s

assistance and difficult to find it at night without the use of the plane. In addition, an affidavit

provided by agent Jackson explains exactly how the F.B.I. utilized Crawford’s assistance and

the plane to locate the victim’s body. Thus, the F.B.I. report is of little impeachment value,

much less the material value required for the grant of a new trial and this claim fails.

                                                 6
       II.       Whether the trial court erred in failing to suppress Crawford’s
                 confessions.

¶14.   Crawford argues that the trial court erred in failing to suppress confessions that were

obtained in violation of his right to counsel under both the United States and Mississippi

Constitutions. However, this matter was taken up on direct appeal. See Crawford, 716 So.2d

at 1037-38. Notwithstanding, Crawford now, for the first time, argues that his court ordered

mental examination was an interrogation in violation of his right to counsel. Due to the

heightened scrutiny given to death penalty cases, we will still examine Crawford's argument

that the confessions emanating from the mental examination should have been suppressed.

¶15.   In support of his argument, Crawford cites two cases, Estelle v. Smith, 451 U.S. 454,

101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) and Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981).

Upon reading these two cases, it is readily apparent that Crawford has not made the requisite

showing as to this issue and his argument, therefore, is without merit.

¶16.   In Estelle, the United States Supreme Court considered the issue of whether a

defendant's Sixth Amendment right to counsel is violated when he is not given prior

opportunity to consult with counsel about his participation in a psychiatric examination. 451

U.S. at 471 n.14.4 The Court answered that question in the affirmative and also noted that the

Sixth Amendment was violated when a defendant's attorneys receives no notice of the

examination or its scope, thereby preventing counsel from giving informed advice and

depriving the defendant of his assistance of counsel in making an informed decision. Id. at

470-71.


       4
           The Court noted that there is no right to have your attorney present during the examination.

                                                     7
¶17.   The Fifth Circuit adopted this reasoning in Spivey. 661 F.2d at 474-75. In that case,

the defendant argued that he was between counsel at the time of the examination. Id. at 475.

The court noted that the Sixth Amendment would be violated if either the defendant had no

counsel at the time of the examination or if he had counsel, but counsel was not given notice

of the order for the examination. Id. at 475-76.

¶18.   Crawford argues that he was entitled to counsel's assistance in making his decision as

to whether or not to submit to testing and to what extent the tests should be performed.

However, the cases he cites involve situations where there either was no counsel at the time

of the examination or counsel was given no notice of the examination. Crawford alleges

neither and it is apparent that counsel, at the very least, had notice of the fact that the

examination would take place as he signed off on the examination order. Crawford does not

argue that counsel did not have notice of the examination or its scope, but simply that he did

not confer with counsel. Notwithstanding the lack of any supporting evidence, Crawford's

claim appears better suited as one for ineffective assistance, for it is clear that the State upheld

its end of the bargain and his argument is without merit.

       III.    Whether Crawford was improperly denied a timely appearance.

¶19.   Crawford also claims that this Court must find that his confessions were improperly

admitted at trial since he was not granted an initial appearance until after officials obtained

detailed confessions in violation of his right to counsel under both the Sixth Amendment to

the United States Constitution and the Mississippi Constitution. While this specific issue was

not litigated at trial or on direct appeal, this Court did address the legality of the same




                                                 8
confessions under both the Mississippi and Sixth Amendment’s right to counsel. See

Crawford, 716 So.2d at 1037-38.

¶20.   However, given the heightened scrutiny of death penalty review, we will examine this

argument nonetheless, for it may be done rather quickly. In Veal v. State, 585 So.2d 693

(Miss. 1991), we addressed this same issue. In so doing, we made the following statement:

       Assuming arguendo, Veal's rights under Rule 1.04 were offended, relief does
       not follow. Before questioning, Veal was independently advised of his right to
       remain silent and of his right to counsel, Miranda variety, facts he freely admits.
       We have repeatedly held this advice legally adequate that, when followed by a
       knowing and voluntary waiver, a subsequent confession becomes competent
       evidence.


Id. at 699. This language fully addresses Crawford's argument under this issue, for even

assuming that his right to a timely appearance was offended, the record makes it quite clear that

he was explained of his rights and that he executed written waiver forms. Therefore, his

confessions were properly before the court, and his argument fails.




       IV.    Whether the form of the verdict as to aggravating factors was
              improper, thus requiring reversal of the sentence.

¶21.   Crawford next argues that since the jury wrote the verdict in improper form as to the

placement of the words “beyond a reasonable doubt” in reference to the aggravating factors,

that the form of the verdict was improper and thus the degree of proof required by the law was

not found.




                                               9
¶22.   We have already addressed this issue in Williams v. State, 684 So.2d 1179 (Miss.

1996). There, we noted that there is no authority for the proposition that the jury must actually

write the words "beyond a reasonable doubt" in its verdict. Id. at 1208. In addition, we

presume that a jury will follow a trial court's instructions and do as it is told. Id. at 1209.

Crawford has given us no reason to believe that this jury departed from its instructions, and we

find his claim without merit.

       V.      Whether the venire was tainted due to the jury questionnaire
               mailing informing the identity of the defendant and victim

¶23.   Crawford next asserts that his Sixth Amendment right to an impartial jury was

compromised by the identification of the defendant and the victim in the case through a

questionnaire that had been mailed to the venire several weeks prior to jury selection. As the

State points out, voir dire did cover the questions of pretrial publicity and the jurors were asked

whether each of them had formed an opinion in regard to Crawford's guilt or innocence. This

is similar to the situation in Gray v. State, 728 So.2d 36 (Miss. 1998). There, the defendant

expressed concerns over media coverage and the fact that the summons had the words "capital

murder" printed on them. Id. at 65-67. We noted then that any problems that such occurrences

may raise can be sufficiently cured through proper voir dire. Id. We find that here, just as in

Gray, the voir dire conducted at trial was sufficient to ensure a fair and impartial jury and that

Crawford's argument, therefore, fails.

¶24.   In addition, Crawford fails to cite one case for the proposition that the mere

identification of parties to a case prior to jury selection is the type of occurrence for which




                                                10
any resulting prejudice towards one of the parties cannot be cured by proper voir dire. Thus,

the claim is also without merit.


       VI.    Whether at the inception of trial the diminished capacity of
              Crawford to assist counsel and the failure of the attorney client
              relationship should have been addressed by the trial court.

¶25.   Crawford also argues that he was not of the capacity to assist his counsel at trial.

However, no such issue was raised at trial, nor was it brought to this Court’s attention on

appeal. Now, nine years later, do we, for the first time, find counsels' acknowledgment that

there was a failure in the attorney-client relationship. We have long attempted to protect these

post-conviction procedures from the distorting effect that an attorney's hindsight may have

upon occurrences at trial. Therefore, we find the affidavits of counsel irrelevant to the

determination of this issue and find it without merit.

¶26.   Crawford also complains that the trial court "should have taken steps to afford petitioner

counsel capable of maintaining a relationship with petitioner." Notwithstanding Crawford's

failure to cite any authority in support of his argument, we will swiftly deal with this issue.

Crawford appears to argue that the court should have granted him new counsel on its own

accord. However, the burden of raising such a motion and seeing it through falls squarely on

the shoulders of Crawford, himself. Not until it is apparent that counsel is incompetent or

failing to act in the best interests of the defendant should the court take it upon itself to

address the matter. Stewart v. State, 229 So. 2d 53, 56 (Miss. 1969). Crawford's argument,

therefore, is without merit.

       VII.   Whether there was cumulative error in the guilt phase of the trial .



                                              11
       VIII. Whether there was cumulative error in the sentencing phase of the
             trial .

¶27.   Crawford asserts that even if this Court were not to find any individually reversible

error, that the cumulative effect of all the errors at trial warrants reversal. The Court addresses

these issues now, before proceeding to Crawford’s ineffective assistance of counsel argument

to prove a point.

¶28.   This Court will not address alleged errors of counsel in their aggregate under some

lesser standard than is normally required to prove ineffective assistance of counsel. See

Foster v. State, 687 So.2d 1124, 1141 (Miss. 1996). Therefore, this Court will only address

any errors in assistance of counsel under the proper standard in the remaining issues.

¶29.   Notwithstanding, Crawford has failed to show any errors, much less a number of errors

that might be reversible in their aggregate and, as such, this claim is without merit. See Davis

v. State, 660 So.2d 1228, 1261 (Miss. 1995); Wilburn v. State, 608 So.2d 702, 705 (Miss.

1992) (holding that there must be error in some part for there to be aggregate reversible error).



       IX.     Whether Crawford received ineffective assistance of counsel
               during the guilt phase of the trial .


               a.     Cumulative effect

¶30.   Again, Crawford has failed to show any errors, much less a number of errors that might

be reversible in their aggregate and, as such, this claim is without merit. See Davis v. State,

660 So.2d at 1261; Wilburn v. State, 608 So.2d at 705.

               b.     Failure to develop relationship with client


                                                12
¶31.   Crawford claims that counsel was deficient in not creating a trusting relationship with

their client and, as a result, their client, Crawford, was prejudiced. Crawford, however, cites

no authority for this proposition, save for a case outside of this jurisdiction where defense

counsel showed so much dislike for his client that he, in effect, became a second prosecutor.

See Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997). Crawford has not alleged such facts here

and, therefore, has not made the necessary showing that counsel was deficient and this claim

fails. See Woodward, 843 So. 2d at 7.

               c.     Failure to secure adequate funds

¶32.   Crawford alleges that counsel failed to secure adequate funds to engage in proper

investigation, which resulted in an inability to obtain the F.B.I. report that has previously been

discussed. However, Crawford fails to create a nexus between lack of funds and discovery of

this report, as he was able to find it through the Freedom of Information Act on his own.

¶33.   Crawford also alleges that counsel failed to secure funds for expert assistance.

However, Crawford did have experts testify at trial and has failed to include an affidavit from

any expert which states what exculpatory testimony they would have provided were Crawford

able to afford it.

¶34.   Crawford does cite authority for the proposition that the state should provide money,

when necessary, for expert assistance for those who cannot afford it. However, he cites no

authority for the proposition that any of his counsels’ efforts in these regards have fallen below

any kind of standard. Therefore, he has failed to meet his requirement of showing deficiency

on counsels’ part. Id.

               d.     Failure to investigate

                                               13
¶35.   Under this general heading, Crawford makes a general assertion that “counsel failed to

ensure that a proper investigation take place.” However, he states nothing more and does not

allege what counsel did or failed to do in investigating. Therefore, he is unable to show

prejudice and his claim is without merit. See Woodward, 843 So. 2d at 7.

¶36.   Under a sub-heading, Crawford claims that the insanity defense was ineffectively

investigated and presented. However, Crawford’s main argument is the same argument towards

securing funds, which was addressed above.5 This claim is without merit.




              e.      Failure to litigate competency

¶37.   Crawford next complains that counsel was deficient for not litigating Crawford's overall

competency and, specifically, his competency while on medication. In fact, Crawford appears

to advocate that the lack of a hearing on competency is automatic grounds for a review of a

prisoner's petition for post conviction relief using the Eighth Amendment jurisprudence

announced by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.

2242, 153 L.Ed.2d 35 (2002). Though unwilling to expand Atkins to such an extent, we are

certainly willing to agree, for the sake of argument, counsel was deficient for not litigating

competency, notwithstanding the fact that Crawford had been found competent for trial in an




       5
         Crawford also claims it was ineffective for counsel to have used one expert at trial
and an expert with a conflicting view at sentencing. This Court notes that it is not per se
ineffective for counsel to use experts with differing opinions at different phases at trial.

                                              14
unrelated matter some 11 months prior and that there had been no documented changes in his

condition from that point to the trial now in question.

¶38.   However, this still only answers half of the question before us. We are still to

determine whether Crawford was prejudiced by counsels' deficient performance. As stated

above, the applicable standard is whether there exists "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different,

meaning a "probability sufficient to undermine the confidence in the outcome." Mohr v. State,

584 So.2d 426, 430 (Miss. 1991).

¶39.   As Chief Justice Pittman recently wrote for the Court in Simon v. State:

       At this stage in the proceedings, this Court need merely consider whether (the
       prisoner in question's) petition, affidavits, and trial record render it sufficiently
       likely that he received ineffective assistance of counsel so that an evidentiary
       hearing should be held. 'Put otherwise, on the papers and record before us, can
       we say with confidence that at any evidentiary hearing (petitioner) will not be
       able to show that he has been denied effective assistance of counsel.

857 So.2d 668,683 (Miss. 2003) (citations omitted).

¶40.   Showing prejudice is where Crawford fails in this argument. In support, Crawford

offers three exhibits, labeled K, L, and F. Exhibit K is an assortment of medical records

requested by Crawford from the Northeast Mississippi Medical Center in Tupelo. In his

petition, Crawford uses this information to show that he suffered a seizure and was transported

to the medical center for treatment and testing.

¶41.   Exhibit L is a signed affidavit from Lemly D. Hutt Jr., Ph. D. Dr. Hutt is a clinical

psychologist who had been treating Crawford for months prior to his unrelated 1993 trial and

originally found Crawford competent for trial. In his petition, Crawford alleges that Dr. Hutt,



                                                15
after learning of the seizure and resulting medication, reversed his position and dounf

Crawford incompetent for trial. It is Crawford's position that Exhibit K supports such a

proposition. However, such is not the case.

¶42.   Despite having not seen Crawford since his seizure at the time of the affidavit, Hutt

relays information from defense counsel that due to the medication, Crawford appeared

"groggy and drugged, is experiencing dizziness and is sometimes incoherent." In the remainder

of the paragraph, Hutt notes that it was apparent that at that time, the treating physicians were

attempting to determine the correct dosage of medication for Crawford. In the subsequent

paragraph, Dr. Hutt states "[u]ntil I am given an opportunity to re-examine Mr. Crawford and

review the results of the tests performed on him as a result of these seizures, I am unable to

assess his competency to stand trial with certainty." The closest this document comes to

stating that Crawford was incompetent was Dr. Hutt's statement that "I can say, based on these

facts relayed to me that there is a probability that he is currently incompetent to stand trial."

¶43.   This Court has already indirectly ruled on the weight that should be given to this

affidavit. In the 1993 trial, Crawford's counsel raised the issue of his competency while

medicated and used this affidavit along with one from Dr. Mark Webb. See Crawford, 787

So.2d at 1242. As this Court stated, "both expressed concerns regarding the effect of both

Lithium and Dilantin on Crawford's competency to stand trial." Id. However, the State

countered with the testimony of Dr. Reb McMichael, who stated that the levels of Lithium

administered to Crawford was "barely... therapeutic or lower than therapeutic" and that the

levels of Dilantin administered was 100 milligrams three times a day and that such was not

expected to interfere with his ability to interact with his attorney. Id. This would have put

                                               16
Crawford and counsel for this petition on notice as to the levels of Dilantin that Crawford may

have been on, yet there is no affidavit provided in the petition as to the effects of such a dosage

on Crawford.

¶44.   The only evidence that Crawford provides as to his alleged incompetency is in Exhibit

F. This exhibit is an affidavit from Crawford's father wherein he states:

       Additionally, throughout the trial of the instant matter my son was medicated
       such that it affected the way he appeared in the courtroom. On several
       occasions Charles was incoherent and unable to respond to simple questions.
       There were also several days when Charles sat with his head slumped down or
       his back to the jury.

¶45.   Other than these three exhibits, Crawford offers this Court nothing more than

allegations, arguments, and inapplicable case law. Counsel should have requested that the trial

court take note of any changes in Crawford's situation since the previous trial and again rule

on his competency based on such changes. Counsel was deficient for not having done so.

¶46.   However, Crawford must also show prejudice and such is his burden to carry. See

Strickland, 466 U.S. at 686. Thus, it is now Crawford's burden to show facts which would have

changed since the original determination, or to provide an affidavit by a doctor who would have

testified as to his incompetency, or perhaps to have simply found how much medication

Crawford was on at the time and provided a medical opinion as to the effects of such a level

of medication.

¶47.   However, he has not done so. He has merely provided this Court with proof that he had

a seizure and no medication, proof that one doctor was "doubtful" of his competency, and his

father's assertions that his medication affected the way he presented himself at trial. Thus,

Crawford has not carried his burden in regards to prejudice. Therefore, this claim fails.

                                                17
                      f.     Failure to prepare pretrial motions

                      1.     failure to challenge indictment

¶48.    Crawford next alleges his counsel was ineffective for failing to challenge the

indictment handed down by the grand jury in either of two ways. First, he states counsel was

ineffective because it failed to object that the indictment was invalid on its face. However, the

invalidity of Crawford’s indictment was addressed on appeal and Crawford was found not to

have been prejudiced by such. Crawford, 716 So. 2d at 1050-51. Therefore, in this

proceeding, he will be unable to meet the prejudice prong ofStrickland. See Woodward, 843

So. 2d at 7.

¶49.    In addition, Crawford states that his counsel should have challenged the indictment

because one of the members of the grand jury was related to a prosecution witness. This Court

has already held that absent statutory provision to the contrary, it is permissible for a member

of the grand jury to be related to the victim, meaning that such relation, alone, is not grounds

for disqualification. Southward v. State, 293 So.2d 343, 344 (Miss. 1974). Therefore, we

fail to see how it would be any less permissible for one related to a witness to serve on a grand

jury.

¶50.    In addition, in the same letter mentioned earlier, written around the time of trial,

Crawford agreed with his counsel’s decision not to challenge the indictment on such grounds

as the prosecution would probably just go get another. Therefore, Crawford will be unable to

meet the necessary showing of deficiency of counsel. See Woodward, 843 So. 2d at 7.

                      2.     failure to file suppression motion prior to
                             trial


                                               18
¶51.     Crawford alleges that it was ineffective for counsel to not file a motion to suppress

prior bad acts and convictions. It must first be reiterated that counsel is given wide latitude in

its choice and employment of strategies and defenses. Hiter v. State, 660 So. 2d 961, 965

(Miss. 1995). In addition, “when the defense is insanity, either general or partial, the door is

thrown wide open for the admission of evidence of every act of the accused’s life relevant to

the issue of sanity and is admissible in evidence. McLeod v. State, 317 So. 2d 389, 391 (Miss.

1975).

¶52.     In this case, the insanity defense was employed and, thus, the door was opened to a

wealth of evidence. Crawford has failed to show that any of the evidence that he gives general

reference to would be inadmissible in such a context. As such, he has failed to show that

counsel was deficient and this issue is without merit. See Woodward, 843 So. 2d at 7.

                       3.     failure to properly move to suppress
                              confessions

¶53.     Crawford alleges that counsel was ineffective because they did not file a written motion

to suppress confession statements. However, it is clear from the record that such a motion

was made ore tenus, challenging Crawford’s statements on such grounds as voluntariness.

Crawford fails to cite any cases that stand for the proposition that motions must be made in

writing. As such, he is unable to show deficiency on the part of counsel and this claim is

without merit. See Id.

                       4.     failure to request a bench trial

¶54.     Crawford claims that counsel was inefficient for failing to request a bench trial.

However, Crawford has cited no authority for the proposition that it is ineffective assistance


                                               19
for counsel not to request a bench trial. Furthermore, while there is a right guaranteed under

the Sixth Amendment to a trial by jury, there is no right to a trial by bench.6 As such, Crawford

is unable to show deficiency of counsel and this claim is without merit. See id.



                       5.      failure to appeal denial to proceed ex
                               parte

¶55.   Crawford alleges that counsel’s failure to appeal the denial of his petition to proceed

ex parte to secure funds rendered counsel’s assistance ineffective. However, in this petition,

Crawford identified the specific expert he wished to obtain and that expert appeared and

testified at his trial. His need to proceed ex parte was rendered moot. Since the claim was

moot, Crawford is unable to show any prejudice from the failure to appeal the petition and,

thus, this claim is without merit. Id.

                       6.      Failure to pursue plea negotiations

¶56.   Crawford asserts that his counsel was ineffective for failure to pursue plea negotiations.

However, Crawford provides no evidence that the prosecution even considered tendering a plea

offer to him. Therefore, Crawford is unable to show any prejudice and, as such, this claim is

without merit.

               g.      Failure to conduct adequate voir dire

                       1.      failure to secure adequate conditions




       6
           The closest Crawford could come to such an argument is that a defendant can waive a jury
trial with the consent of the prosecution. See Bishop v. State, 812 So. 2d 934, 945 (Miss. 2002).
However, there is no absolute right to a bench trial.

                                                 20
¶57.    Crawford alleges that counsel “failed to secure adequate voir dire conditions so that the

jurors would provide the information necessary to the exercise of defense challenges.”

However, his arguments essentially boil down to an assertion that counsel was rendered

ineffective because it was unable to secure individual sequestered voir dire and the jury became

tainted through information concerning prior convictions.

¶58.    However, Crawford has cited no authority that indicates that the failure to obtain

individualized, sequestered voir dire renders counsel’s assistance ineffective.7                 Since,

Crawford can therefore not show counsel to be deficient for not obtaining such a method of

voir dire, this claim is without merit. Id.

                        2.      failure to ask necessary questions and
                                meaningfully use peremptory challenges


¶59.    Crawford’s assertion that counsel failed to ask necessary questions or properly

challenge jurors is likewise without merit. As Crawford fails to allege what questions should

have been asked or provide case law supporting his contention, he fails to give this court a

means by which to measure counsels’ performance. Therefore, his claim is without merit.

                        3.      failure to prevent jurors from being
                                improperly excused


¶60.    Crawford asserts that counsel was ineffective for failing to rehabilitate jurors who had

stated that their opposition to the death penalty would either preclude them from being able

to impose such punishment and/or would prevent them from rendering an impartial verdict.

        7
         Crawford, himself, notes that counsel made a motion for individualized, sequestered voir dire.
However, it is apparently Crawford’s desire that counsel would have renewed such a motion in the
hopes that the trial judge would have changed his mind.

                                                  21
However, it is not ineffective assistance for counsel to fail to attempt rehabilitation of jurors

when those jurors make it unmistakeably clear that they could either not vote for the death

penalty or that their attitude towards the death penalty would prevent them from making an

impartial decision as to defendant’s guilt. Smith v. Black, 904 F.2d 950, 978-79 (5th Cir.

1990). In this case, voir dire showed the prospective jurors’ clear and unequivocal denial of

the ability to render the death penalty or to remain impartial in a death penalty case. Therefore,

it was not ineffective assistance to fail to attempt to rehabilitate them.

                      4.      failure to conduct sufficient voir dire

¶61.   Crawford alleges counsel was ineffective in failing to have two jurors removed for

cause. However, the record reflects that both jurors were removed from the case and both

were removed for cause. This claim is without merit.

                      5.      Alienating jurors

¶62. Crawford next alleges ineffective assistance through the alienation of jurors during voir

dire. Crawford claims that counsel was rude and sarcastic. However, as his only support,

Crawford provides a Texas case wherein the prosecutor made several inflammatory remarks

and went so far as to ask the jury if he were making them angry. See Miller v. State, 728

S.W.2d 133 (Tex. Ct. App. 1987). Since Crawford has failed to allege similar facts in this

case, he has failed to show deficiency in counsel and, therefore, this claim is without merit.

See Woodward, 843 So. 2d at 7.

                      6.      Failure to conduct effective opening
                              statement




                                               22
¶63.    Crawford first claims that counsel conceded guilt and, therefore, was ineffective in his

opening statement. However, Crawford’s version of the facts is incorrect. The record reflects

that counsel conceded underlying facts, yet at all times argued that Crawford was not guilty by

reason of insanity. This Court has recognized the strategic prudence of admitting underlying

facts while denying guilt and found that such conduct does not constitute ineffective assistance

of counsel. See Evans v. State, 725 So. 2d 613,¶ ¶ 706-07 441-48 (Miss. 1997); Wiley v.

State, 517 So. 2d 1373, 1382 (Miss. 1987).

¶64.    In addition, Crawford claims that he was denied a fundamental right to present a portion

of his own opening statement. However, Crawford never alleges that he would have done so

if given the option. He simply states that this right was never explained to him.8 As such,

without even addressing the possible ineffective assistance issues, this portion of the claim is

without merit.

                h.      Failure to prevent evidence of prior bad acts9

                        1.      failure    to    prevent       hearing      on

                                admissibility

¶65.    Crawford alleges that it was ineffective for counsel not to demand a pre-trial hearing

on admissibility regarding prior bad acts. However, Crawford fails to cite any case which

states that it is ineffective assistance for counsel to fail to insist on such a pre-trial hearing.

        8
         The Court wishes to note the imprudence of one giving the opening statement at his own trial
when he, himself, claims that he should have been adjudged incompetent and where he claims that he
was so drugged as to not even be able to sit in court correctly.
        9
         Crawford’s general assertion that counsel was ineffective for failing to prevent comments
regarding the prior record of the accused is too vague to warrant separate discussion, but is
incorporated into the issues under this heading.

                                                  23
Thus, the Court is unable to find that counsel was deficient for such failure and this claim is

without merit. See Woodward, 843 So. 2d at 7.




                      2.     failure to object to testimony regarding
                             prior bad acts

¶66.   Crawford asserts ineffectiveness in failing to object to testimony concerning prior bad

acts. The first part of this claim is that counsel failed to object to certain parts of testimony

where Crawford alleges that F.B.I. agent Summerlin made inappropriate references to

Crawford’s prior trials. However, this claim is lacking in merit as a review of the record

reflects that the word “trial” never came out of agent Summerlin’s mouth at the points alleged

by Crawford. Summerlin use the words “upcoming event,” instead. This was not evidence of

prior bad action as Crawford alleges.

¶67.   Crawford also asserts that the prosecution elicited inadmissible prior bad act testimony

from both Crawford’s father and Dr. Russell, the defendant’s expert. However, in each

instance, the prosecution performed this questioning on the cross examination of a witness that

the defendant was using to establish the insanity defense and, as such, prior bad act evidence

became admissible for challenging this defense. See McLeod v. State, 317 So. 2d at 391.

Because all of the above evidence was admissible, Crawford cannot show counsel was deficient

and, thus, his claim is without merit. See Woodward, 843 So. 2d at 7.

                      3.     Failure to require           proper     DNA
                             admissibility hearing




                                               24
¶68.   Crawford alleges that counsel was ineffective for not requiring the trial court “to

conduct an on the record hearing pursuant to the requirements enumerated in” Polk v. State,

612 So. 2d 381 (Miss. 1992). However, it is apparent that counsel did make a motion in

limine to prevent the introduction of DNA evidence and that the court denied the motion, but

not before hearing arguments by both sides and taking Polk into consideration. Also, the

court’s denial of the motion was affirmed on direct appeal. Not only does Crawford fail to

allege what counsel specifically should have done, but this Court found that the evidence was

properly admitted. Because Crawford has failed to show deficient performance or prejudice,

this claim is without merit. See Woodward, 843 So. 2d at 7.

                      4.      Failure to object to expert testimony on
                              hair

¶69.   Crawford asserts that counsels’ refusal to cross examine the states’ expert witness on

hair was ineffective assistance. First, Crawford already admitted to being in the barn with the

victim, which is all that Crawford has alleged that this testimony showed. As such, he can not

show prejudice in this case. In addition, as we have stated above, it is not necessarily deficient

for counsel, when employing an insanity defense, to stipulate to underlying facts.            See

McLeod v. State, 317 So. 2d at 391. Crawford has not provided this Court with any case law

that finds it per se ineffective to not cross examine and opposing party’s expert witness.

Because he can not show deficiency or prejudice, this claim is without merit. See Woodward,

843 So. 2d at 7.

                      5.      Failure to secure independent experts




                                               25
¶70.   Crawford claims ineffective assistance in that counsel failed to secure funds for an

independent expert to analyze fingerprints because it is possible that this expert may have

discovered exculpatory evidence. Essentially, Crawford is claiming that the outcome of trial

might have been different. However, Strickland requires a showing that the verdict would have

been different; and therefore, this claim is without merit. Woodward, 843 So. 2d at 7; see also

Brown v. State, 798 So. 2d 481, 506 (Miss. 2001) (no ineffective assistance where petitioner

does not make showing that verdict would have been different if expert were retained).

                      6.     Failure to object to inadmissible evidence
                             and testimony

¶71.   Crawford asserts that counsel was ineffective for not objecting to three specific pieces

of testimony which, he claims, were designed to and did inflame the jury. He first claims

prejudice as a result of F.B.I. agent Jackson’s statement that he had a daughter close in age to

the victim. When read in context, however, the statement was no more than an indication of

his desire to find the victim as soon as possible in hopes that she might still be alive. Failure

to object here was certainly not deficient.

¶72.   Next, Crawford asserts that counsel should have objected to two statements made by

F.B.I. Agent Summerlin. One statement referred to Crawford’s professed opinion that at one

point, it seemed as if the victim was attempting to witness to him. Another statement, actually

made by the prosecution asks “[a]nd that is when he killed her?” While these statements were

certainly objectionable, Crawford provides no case law on point or sufficiently analogous to

back up his assertions that the failure to object to these individual statements rendered




                                               26
counsels’ assistance ineffective. Indeed, the record reflects counsels’ vigorous participation

during the testimony of Agent Summerlin, making several objections.

¶73.    In addition, it cannot be shown that Crawford was prejudiced by any of the above

statements. Crawford has failed to show that there was a reasonable probability that the jury

would have returned a different verdict had these statements been objected to and stricken from

the record as this Court requires. See Mohr, 584 So.2d at 430. Because Crawford has failed

to show deficiency or prejudice, this claim fails. See Woodward, 843 So. 2d at 7.

                I.      Injecting admissible, highly prejudicial evidence

                        1.      prior bad acts

¶74.    Crawford alleges ineffective assistance in the injection of prior bad acts into the case.

In response to Crawford’s assertion that the injection of prior bad acts during Dr. Russell’s

testimony and during voir dire, the Court reminds Crawford that his was an insanity defense.

The discussion of such acts were necessary to Dr. Russell’s testimony in order to try to show

insanity. In regards to the issue of voir dire, the Court finds that counsel was prevented from

injecting prior bad acts by the prosecution.10 Notwithstanding, such acts would eventually have

come out and we hold, strictly under the facts of this case, that Crawford was not prejudiced

by this near slip-up.




        10
          The following was recorded during voir dire:
        Mr. Pannell: “[Y]ou said I believe you told us that your father served on a previous juror where
        Charles Crawford?”
        Mr. Robinson: “You Honor.”
        The Court: “Just a minute,... before you respond.”
Following this exchange, a bench conference was held without record, and counsel moved on to other
matters without addressing the issue.

                                                   27
¶75.   Crawford also cries foul over an exchange his counsel had with F.B.I. agent Jackson

wherein he asks agent Jackson what facts Crawford was confronted with during his

interrogation that linked him to the alleged crime. Jackson responded with a number of things,

some of which were prior bad acts/crimes attributed to Crawford. While Crawford claims this

as error, context shows that this was an intentional move by counsel to show involuntariness

in the confession. Given the latitude given in regards to strategic moves, we cannot hold that

counsel was deficient for eliciting this testimony. See Woodward, 843 So. 2d at 7. However,

because we find that counsel either did not inject bad acts in some instances and was not

deficient for doing so in others, Crawford has failed to meet his burden and this claim fails.

Id.

                      2.     information about the first ransom note

¶76.   Crawford next claim rests on a line of questioning which elicited testimony concerning

a first ransom note that was found at his parent’s home. Crawford alleges that this not only was

improper, but that it opened the door to further questioning concerning the note.

¶77.   First, counsel’s actions did not open the door in this case. We again repeat the rule that

use of the insanity defense makes relevant and admissible, that evidence which could rebut

such a defense. See McLeod v. State, 317 So. 2d at 391. As Crawford concedes in his

petition, this evidence was relevant to the issue of insanity.

¶78.   The important question here is whether calling the witness, itself, was so improper that

it rendered counsels’ assistance ineffective. We think not. It is clear from a reading of the

record that counsel was attempting to attack Crawford’s confession as illegally obtained. To

do so, it was necessary for counsel to call the witness to the stand and show that certain

                                               28
records were obtained under false pretenses. Crawford has provided this Court with no case

law that would hold counsel ineffective for merely calling a witness. Because Crawford has

failed to show counsel was deficient, his claim fails. See Woodward, 843 So. 2d at 7.

                     3.      Failure to ensure attendance of witnesses

¶79.   Crawford asserts that counsel was ineffective because of the failure to secure the

attendance of witnesses at a pretrial hearing and at trial. However, in the only instance noted

by Crawford, the record shows quite clearly the court’s willingness to reopen the specific

motion when the proper witnesses were in attendance and that the issue was indeed later

addressed at trial by the necessary witnesses. This issue is without merit.

                     4.      Ineffective closing argument

¶80.   Crawford next claims that counsel’s closing argument was so inadequate as to become

ineffective. However, counsel’s fourteen page closing sits well with this court given its

purpose - to make one last effort to argue that Crawford was not guilty by reason of insanity.

Counsel’s aim was to portray Crawford as a “monster” in order for the jury to find him not

guilty by reason of insanity. Crawford does not direct this Court’s attention to any case law

that stands for the proposition that counsel must describe his client in a pleasant manner at

closing argument. This portion of the issue is without merit.

¶81.   In addition, and despite Crawford’s assertion, counsel never conceded guilt in this case,

just underlying facts. However, counsel steadfastly maintained throughout trial that his client

was not guilty due to insanity. This issue has already been addressed under a similar heading.

Crawford has failed to show that counsel was deficient in his closing and, therefore, this

portion of the claim also fails. See Woodward, 843 So. 2d at 7.

                                              29
       X.     Whether Crawford was denied effective assistance of counsel at
              sentencing.

              1.      Failing to request a continuance

¶82.   Crawford’s assertion that counsel was ineffective for failing to secure a continuance

is without merit. Not only did counsel request adjournment for the evening, but the judge

granted the request and the penalty phase of trial did not begin until the following morning.

              2.      Failing to object to improper presentation of evidence

¶83.   Crawford claims ineffective assistance in that counsel failed to object to the

prosecution’s use of the testimony of Officer James Wall to establish prior convictions.

While Crawford does cite the “best evidence rule,” he cites to no authority for the proposition

that the prosecution is required to provide certified copies of convictions to prove aggravators

at the sentencing phase of a capital murder case.

¶84.   In addition, Crawford is unable to show any prejudice. Were this testimony objected

to, the State could have used the same certified copies that were used and admitted into

evidence at the hearing on Crawford’s habitual offender status. Because he can show neither

deficiency nor prejudice, Crawford’s claim fails. See Woodward, 843 So. 2d at 7.

              3.      Failure to litigate issue of victim impact evidence

¶85.   Crawford claims that counsel failed to litigate, in a meaningful manner, victim impact

evidence presented by the victim’s mother and grandmother and thus, was ineffective.

However, the record reflects that an objection to this evidence was made and this issue was

examined on appeal. There, the court found nothing improper about the victim impact evidence




                                              30
that was presented at sentencing. Therefore, Crawford is unable to demonstrate deficient

performance or prejudice and his claim fails. See id.

¶86.   Crawford also argues that the identification of two of Crawford’s previous victims was

error and the failure to litigate ineffective assistance. However, Crawford fails to cite a single

authority in support of this proposition and it is thus without merit.

               4.     Failure to deal with juror speculation regarding parole

¶87.   Crawford next claims that he was prejudiced by counsels’ ineffectiveness in dealing

with juror speculation regarding Crawford’s parole eligibility. However, Crawford fails to

make any showing that any of the jurors were confused on this topic. In addition, while

Crawford claims his counsel only mentioned that there was no possibility of parole if given

a life sentence three times, it was mentioned at court, regardless of speaker, around nineteen

times. This claim is without merit.

               5.     Failure to develop and present a theme in mitigation

¶88.   Here, Crawford complains that his counsel failed to come together and create one

common theme in mitigation. He laments that one lawyer dealt with the impropriety of the

death penalty itself, while the other concentrated on the insanity defense and other related

arguments. However, as Crawford has failed to provide this Court with any case law that has

accepted the same or a sufficiently analogous argument, his claim is without merit.




               6.     Failure to conduct a professional and effective
                      investigation

                                               31
¶89.     Crawford next contends that counsel failed to conduct a professional and effective

investigation for the penalty phase of trial. However, Crawford’s argument concerns the

alleged failure to investigate mitigating evidence, which will be addressed in the following

issue.

                           a.      Failure to present and investigate
                                   significant mitigation evidence


¶90.     The United States Supreme Court has very recently discussed this exact issue. See

Wiggins v. Smith, 123 S.Ct 2527, 156 L.Ed.2d 471 (2003). In Wiggins, the petitioner

claimed that he received ineffective assistance because counsel failed to investigate and

present mitigating evidence at his sentencing.11 Id. at 2535. Counsel rebutted the assertion by

claiming that they did conduct a limited investigation, which reflected a strategic decision not

to present mitigating evidence at the sentencing hearing, but to attempt to implement an

alternate strategy instead. Id.

¶91.     In a 7-2 decision, finding ineffective assistance in the investigation, the Court clarified

the manner in which such claims are to be reviewed. Id. at 2531. Quoting Strickland, the

Court reiterated that “strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.” Id. at 2535. Therefore, since counsel is under a general duty to

reasonably investigate, a court should not simply concentrate its analysis on the decision not



         11
              Wiggins was convicted of murder and sentenced to death, just like the case at bar.

                                                      32
to present evidence, but instead, should “focus on whether the investigation supporting

counsel’s decision not to introduce mitigating evidence ... was itself reasonable.” Id. at 2536.

¶92.   Thus, a court is to determine whether counsel exercised reasonable professional

judgment in conducting its investigation based on an assessment of the prevailing professional

norms, including a “context-dependent consideration of the challenged conduct as seen ‘from

counsel’s perspective at the time.’” Id. We accept this instruction and stand ready to analyze

this issue under the guidelines announced above.

¶93.   In the case at bar, Crawford claims that counsel was ineffective for failing to investigate

and present mitigating evidence surrounding the following: (1) emotional illnesses and mental

disturbances, (2) sexual and physical abuse, (3) adaptation to prison conditions, (4) remorse,

and (5) long-term substance abuse. However, Crawford has failed to even allege any

information outside of the knowledge of counsel, much less provide the necessary affidavits

of such. With such a glaring lack of evidence by which to determine if Crawford was

prejudiced, there is no need to even examine the reasonableness of counsels’ investigation.

¶94.   The lack of new evidence also impacts Crawford’s claim that counsel was ineffective

in their presentation of evidence during the penalty phase of trial. Because Crawford is unable

to challenge the investigation, we are left with no alternative but to treat it as complete and

judge counsels’ decisions regarding the presentation of evidence as if they had been made

according to a complete investigation and, thus, give great deference to any claims of trial

strategy. Woodward, 843 So. 2d at 7.

¶95.   As this Court held in Holly v. State, 716 So.2d 979, 990-91 (Miss. 1998), where

petitioner has given this Court such a sketchy outline of the investigation performed by

                                               33
counsel without any way of knowing counsels’ impressions or the reasons behind counsels’

decisions, we are left with the presumption that counsel had this evidence, reviewed this

evidence, and considered it, as a matter of strategy, that it was in his client’s best interest not

to bring it out. Notwithstanding, we do not find that the evidence mentioned, even if it all had

been presented at sentencing was of a nature, in its entirety, to cast any doubt as to the

propriety of the jury’s verdict and, as a result, this claim fails. See Woodward, 843 So. 2d at

7.

                      b.      Failure to present effective closing
                              argument


¶96.   Crawford uses this sub-issue to state his displeasure with one member of counsel’s

closing argument. He objects to counsel’s argument that the jury should not give the death

penalty because that is exactly what Crawford wanted. Instead, Crawford claims that counsel

should have presented mitigating evidence before the jury and should have made a strong

argument for life.

¶97.   The record is clear in this case that mitigating evidence was presented through the

testimony of family members and expert testimony of Dr. Webb. In addition, the record is

equally clear that the other member of counsel gave a strong argument in favor of life.

Therefore, this issue is basically a heading under which Crawford is simply expressing his

displeasure with one member of counsel’s argument strategy. Crawford’s opinion, however,

is not a sufficient basis for a claim of ineffective assistance. This claim is without merit.

                      c.      Failure to object to State’s improper
                              argument



                                                34
¶98.   Crawford’s final assertion is that counsel failed to take steps to ensure that the

prosecution did not violate his rights during their closing argument. He first complains that

the state instructed the jury not to consider the mitigating circumstances of Crawford’s alleged

lack of capacity. However, upon reading the statements provided by Crawford, it is clear that

the prosecution was merely rebutting the assertion that Crawford lacked capacity. Attempting

to disprove a mitigating factor is not the same as instructing the jury not to consider one. See

Ladner v. State, 584 So. 2d 743, 762 (Miss. 1991).

¶99.   Crawford’s contention that the prosecution presented evidence that was not in the

record is also misguided. The evidence complained of, a first ransom note, was received into

evidence at the end of his mother’s testimony and the fact that he wrote it is a reasonable

inference given her testimony. In addition, we find that even were this evidence erroneously

admitted and counsel deficient for not contesting it, the necessary level of prejudice could not

be found. Woodward, 843 So. 2d at 7.

¶100. Crawford’s contention that the prosecution instructed the jury to consider

premeditation as a factor is without merit. No such “instruction” can be inferred from the

quote offered by Crawford. The most that can be inferred is that the prosecution was

attempting to rebut mitigation evidence that Crawford could not appreciate his actions because

he was suffering from extreme emotional disturbances.

¶101. Finally, contrary to Crawford’s assertion, the prosecution did not improperly attempt

to place the jury in the victim’s shoes. Much like in the case of Davis v. State, 684 So.2d 643,

655-56 (Miss. 1996), he requested that the jury imagine the last moments of the victim’s life




                                              35
and what she must have thought. Because Crawford is incorrect as to the underlying assertion

in regards to each of the above claims, they are without merit.

                                       CONCLUSION

¶102. Crawford has neither shown counsel deficient under any of above issues, nor has he

shown prejudice due to any of the alleged errors. In addition, he failed to show that the F.B.I.

report at issue would have even a significant effect on his trial, much less the type of effect

necessary for success in this petition. The remaining issues presented were all procedurally

barred from consideration. Therefore, we deny all of Crawford's applications.

¶103. APPLICATIONS FOR LEAVE TO SEEK POST-CONVICTION RELIEF DENIED.

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




                                              36
