                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 97-DR-00376-SCT

ALAN DALE WALKER

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                               8/12/1991
TRIAL JUDGE:                                    HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:                      HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        ROBERT M. RYAN
ATTORNEYS FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                                BY: MARVIN L. WHITE, JR.
NATURE OF THE CASE:                             CIVIL - DEATH PENALTY - POST
                                                CONVICTION
DISPOSITION:                                    APPLICATIONS FOR LEAVE TO SEEK POST-
                                                CONVICTION RELIEF DENIED - 10/16/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Alan Dale Walker was indicted in March of 1991 in the Circuit Court of the First Judicial District

of Harrison County for the crimes of capital murder of Konya Rebecca Edwards during the commission

of a sexual battery, rape and kidnaping. The trial took place in Warren County after a change of venue.

A jury was empaneled on August 6, 1991, and Walker was tried found and guilty on all three counts on

August 10, 1991. After the jury found Walker guilty, a sentencing hearing was held on the capital murder

conviction where the jury heard evidence in aggravation and mitigation of sentence. The jury retired to

consider whether Walker would be sentenced to death or life imprisonment. After due consideration, on
August 12, 1991, the jury returned a sentence of death. The trial court set an execution date for September

15, 1991. Walker received additional consecutive sentences of thirty-five years for the rape conviction

and thirty years for the kidnaping charge.

¶2.     Walker then pursued his automatic appeal to this Court raising twenty-two claims of error.

Walker v. State, 671 So. 2d 581 (Miss. 1995). On October 12, 1995, this Court affirmed the

conviction of capital murder and sentence of death. The convictions for rape and kidnaping were also

affirmed. A petition for rehearing was filed on later denied on April 18, 1996. Id.

¶3.     Walker next filed a petition for writ of certiorari with the United States Supreme Court. Walker’s

execution date was stayed pending resolution of the petition for writ of certiorari. On December 12, 1996,

the United States Supreme Court denied certiorari in this case, Walker v. Mississippi, 519 U.S. 1011,

117 S.Ct. 518, 136 L.Ed.2d 406 (1996). No petition for rehearing was filed.

¶4.     The State moved this Court to set a new execution date for Walker. On January 9, 1997, this

Court set January 29, 1997, as the date for the execution of the death sentence. On January 14, 1997,

Walker filed a pro se motion for appointment of counsel and stay of execution under the precedent of

McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), with the United States

District Court for the Southern District of Mississippi. The State opposed this motion. On January 24,

1997, the district court entered an order appointing George T. Holmes and James W. Craig to act as

Walker’s counsel to pursue a federal writ of habeas corpus. On February 11, 1997, Judge Tom S. Lee

reassigned the case to Judge Charles W. Pickering, Sr.

¶5.     On February 5, 1997, Walker’s counsel, Robin Midcalf and Carmen Castilla, moved this Court

to allow them to withdraw. On February 20, 1997, this Court denied the motion to withdraw based on

the failure to comply with M.R.A.P. 46(c).

                                                    2
¶6.     On March 19, 1997, Holmes and Craig filed a motion in the United States District Court to hold

the action in federal court in abeyance until the disposition of the state post conviction petition. The State

opposed this motion. The district court, on March 27, 1997, entered an order holding the action in

abeyance until ten (10) days after the disposition of the state court petition.

¶7.     Walker filed a Petition for Post Conviction Collateral Relief in this Court on March 17, 1997. The

original “pro se” petition was obviously prepared by an attorney, but unsigned by an attorney. The State

responded to that application on July 18, 1997. On August 6, 1998, the law firm, Jenner and Block, filed

a motion for appointment of counsel and another “pro se” application for post conviction relief. On March

11, 1999, this Court granted the motion for appointment of counsel and remanded the case to the Circuit

Court of Harrison County for that purpose. Walker v. State, 733 So. 2d 836 (Miss. 1999). On

November 15, 2000, the Court assigned the case to the Mississippi Office of Capital Post Conviction

Counsel (MOCPCC)). Finally, after delay by the MOCPCC, the present supplement to the application

was filed on March 24, 2003. Within the March 24, 2003 application, the MOCPCC requested additional

time to supplement the application. The State filed a response to the March 24, 2003, supplement to the

March 14, 1997 application.

¶8.     Walker’s petition raises the following issues:

        I.      WALKER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
                THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT
                AND SENTENCING PHASES OF THE TRIAL WITHIN THE
                MEANING OF STRICKLAND V. WASHINGTON, AND,
                CORRESPONDING PORTIONS OF THE MISSISSIPPI
                CONSTITUTION.

                A.       MOTION FOR CONTINUANCE

                B.       COUNSEL’S FAILURE TO OFFER LESSER-INCLUDED
                         OFFENSE INSTRUCTIONS

                                                      3
       C.   ADMISSION OF THE PHOTOGRAPH OF THE VICTIM
            TAKEN PRIOR TO HER DEATH

       D.   FAILURE TO OBJECT TO       PORTIONS   OF   DR.
            McGARRY’S TESTIMONY

       E.   COUNSEL’S FAILURE TO OBJECT TO THE GRANTING
            OF INSTRUCTION S-9 ON AIDING AND ABETTING

       F.   SUBMISSION OF AGGRAVATING CIRCUMSTANCES
            THAT CAPITAL OFFENSE WAS COMMITTED IN THE
            COMMISSION OF THE CRIME OF SEXUAL BATTERY.

       G.   PROSECUTORIAL MISCONDUCT

            (1)   COMMENT ON WALKER’S FAILURE TO TESTIFY

            (2)   IMPROPER VOUCHING OF WITNESS AND
                  PERSONAL OPINIONS

            (3)   MISSTATEMENTS OF FACT

            (4)   COMMENTS ON APPELLATE REVIEW

            (5)   CUMULATIVE EFFECT OF INSTANCES OF
                  PROSECUTORIAL MISCONDUCT

       H.   OUTBURSTS FROM STATE WITNESSES AND VICTIM’S
            FAMILY MEMBERS

       I.   FAILURE TO ARGUE THE IMPOSITION OF A
            DISPROPORTIONATE SENTENCE

II.    DID THE TRIAL COURT ERR IN CHARGING THE TRIAL JURY
       WITH STATE REQUESTED INSTRUCTION S-9 AS THE SAME IS
       AN INCORRECT STATEMENT OF THE LAW OF THE STATE
       AND AS A RESULT WALKER WAS UNFAIRLY PREJUDICED
       AND DENIED A FUNDAMENTAL FAIR TRIAL.

III.   DID THE FAILURE OF THE TRIAL COURT TO GRANT THE
       CONTINUANCE VIOLATE WALKER’S DUE PROCESS RIGHTS
       AND THE PRINCIPLES OF FUNDAMENTAL FAIRNESS AS



                             4
       GUARANTEED BY THE UNITED STATES AND MISSISSIPPI
       CONSTITUTIONS.

IV.    WERE WALKER’S EIGHTH AMENDMENT RIGHTS VIOLATED
       BY THE IMPOSITION OF A SENTENCE OF DEATH BASED ON
       JURY INSTRUCTIONS WHICH WERE CONSTITUTIONALLY
       DEFECTIVE IN LIGHT OF TISON V. ARIZONA.

V.     DID THE TRIAL COURT ERR IN DENYING WALKER’S JURY
       CHALLENGES FOR CAUSE AND AS A RESULT DENY A
       FUNDAMENTALLY FAIR TRIAL UNDER THE UNITED STATES
       AND MISSISSIPPI CONSTITUTIONS.

VI.    WERE WALKER’S RIGHTS UNDER THE EIGHTH AND
       FOURTEENTH AMENDMENTS OF THE UNITED STATES
       CONSTITUTION AND CORRESPONDING RIGHTS UNDER THE
       MISSISSIPPI CONSTITUTION BY THE PROSECUTION’S
       RACIALLY BIASED USE OF PEREMPTORY JUROR
       CHALLENGES.

VII.   DID THE TRIAL COURT ERR IN STRIKING JUROR MELINDA
       ZAPPIE FOR CAUSE IN VIOLATION OF WALKER’S SIXTH AND
       FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED
       STATES CONSTITUTION AND THE CORRESPONDING
       GUARANTEES UNDER THE MISSISSIPPI CONSTITUTION.

VIII. WAS WALKER DENIED EFFECTIVE ASSISTANCE OF COUNSEL
      BY HIS TRIAL COUNSEL’S FAILURE TO CONDUCT A
      CONSTITUTIONALLY ADEQUATE VOIR DIRE EXAMINATION
      OF THE JURY VENIRE WITHIN THE MEANING OF
      STRICKLAND V. WASHINGTON AND IN VIOLATION OF HIS
      SIXTH AND EIGHTH AMENDMENT RIGHTS AS GUARANTEED
      UNDER THE UNITED STATES CONSTITUTION AND THE
      RELEVANT PORTIONS OF THE MISSISSIPPI CONSTITUTION.


IX.    WAS THE SENTENCE RENDERED AGAINST WALKER
       DISPROPORTIONATE TO THAT OF HIS CO DEFENDANT,
       JASON RISER, IN VIOLATION OF THE EIGHTH AND
       FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF
       THE UNITED STATES AND THE CORRESPONDING PORTIONS
       OF THE MISSISSIPPI CONSTITUTION.



                             5
        X.      WAS WALKER DENIED HIS RIGHTS GUARANTEED BY THE
                FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO
                THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO
                THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL
                TRIAL.

                                                 FACTS

¶9.     On the night of September 8, 1990, Konya Edwards was given a ride home from the Fiesta Club

in Biloxi by Alan Dale Walker, Walker’s girlfriend Trina Perry, and Jason Risers. Edwards apparently did

not know any of the other three before that night. Perry drove with Walker in her vehicle, followed by

Riser and Edwards in Riser’s truck. Eventually, the two vehicles stopped, with Walker leaving Perry after

arranging to meet her later and getting in the truck with Riser and Edwards. Walker, Riser and Edwards

then drove to Crystal Lake. Walker and Riser then sexually assaulted Edwards, and Walker eventually

strangled her and drowned her. Walker and Riser then obtained gasoline and burned Edwards’s body.



¶10.    Walker was tried for capital murder, kidnaping and rape and was convicted on all counts. He

received a death sentence for the capital murder conviction. He received a sentence of thirty-years on the

kidnaping and thirty five years on the rape charge, to run consecutively. Riser, originally charged with the

same counts as Walker, pled guilty to murder, received a life sentence and provided the primary testimony

against Walker. This Court affirmed Walker’s convictions and sentences.

¶11.    Walker applies for leave to seek post-conviction relief from errors he alleges occurred before and

during his trial wherein the sentence of death was imposed on him. Walker asserts his claims pursuant to

the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §§ 99-31-1 to -29

(Rev. 2000 & Supp. 2003). This Act, by its express terms, was created to:




                                                     6
        revise, streamline, and clarify the rules and statutes pertaining to post conviction collateral
        relief law and procedures, to resolve any conflicts therein and to provide the courts of this
        state with an exclusive and uniform procedure for the collateral review of convictions and
        sentences.

Id. § 99-39-3(1).

¶12.    The exclusivity intended by the Legislature was furthered by the inclusion of language abolishing

former modes of post conviction remedy, including error coram nobis, statutory habeas corpus, post

conviction habeas corpus , statutory error coram nobis, and all other former types of common law writs.



¶13.    Miss. Code Ann. § § 99-39-9 requires fact pleading in order to bring claims before the Court in

a post-conviction review application. Notice pleading has no place in Mississippi’s post-conviction

collateral review scheme which states in part:

        (1) a motion under this article shall name the state of Mississippi as respondent and shall
        contain all of the following:
        (a) The identity of the proceedings in which the prisoner was convicted
        (b) The date of the entry of the judgment of conviction and sentence of which complaint
        is made.
        (c) A concise statement of the claims or grounds upon which the motion is based.
        (d) A separate statement of the specific facts which are within the personal knowledge of
        the prisoner and which shall be sworn to by the prisoner.
        (e) A specific statement of the facts which are not within the prisoner’s personal
        knowledge. The motion shall state how or by whom said facts will be proven. Affidavits
        of the witnesses who will testify and copies of documents or records that will be offered
        shall be attached to the motion. The affidavits of other persons and the copies of
        documents and records may be excused upon a showing, which shall specifically detailed
        in the motion, of good cause why they cannot be obtained. This showing shall state what
        the prisoner had done to attempt to obtain the affidavits, records, and documents, the
        production of which he requests the court to excuse.
        (f) The identity of any previous proceedings in federal or state courts that the prisoner may
        have taken to secure relief from his conviction and sentence.

Miss. Code Ann. § 99-39-21 adds in part:




                                                      7
       (1) 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 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.
       (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal
       legal theory or theories shall constitute a waiver of all other state or federal legal theories
       which could have neem raised under said factual issue; and any relief sought under this
       article upon said facts but upon different state or federal legal theories shall be procedurally
       barred absent a showing of cause or actual prejudice.
       (3) the doctrine of res judicata shall apply to all issues, both factual and legal, decided at
       trial and on direct appeal.

¶14.   This Court’s decisions in Woodward v. State, 843 So.2d 1 (Miss. 2003); McGilberry v.

State, 843 So.2d 21 (Miss. 2003); and Brown v. State, 798 So.2d 481 (Miss. 2002), reiterate that the

Act applies with full force and effect to this post-conviction application. Walker contends that the

procedural bars do not apply to him; this Court holds otherwise. I.           WHETHER WALKER’S
                                                                              TRIAL COUNSEL WAS
                                                                              INEFFECTIVE IN
                                                                              VIOLATION OF THE
                                                                              S I X T H       A N D
                                                                              F O U R T E E N T H
                                                                              AMENDMENTS TO THE
                                                                              U.S. CONSTITUTION,
                                                                              AND ART. 3 § 26 OF THE
                                                                              M I S S I S S I P P I
                                                                              CONSTITUTION.

¶15.   Any and all claims of ineffective assistance of counsel are to be decided under Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by this Court in

Stringer v. State, 454 So. 2d 468 (Miss. 1984) and followed in Foster v. State, 687 So.2d 1124

(Miss. 1996). See Wiggins v. Smith, 539 U.S. ___, 123 S. Ct. 2527, 2535, 156 L.Ed 2d 471, 484

(2003); Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Williams v. Taylor,

529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Strickland standard provides a two-part

                                                       8
test that must be met to justify the reversal of a conviction or death sentence: first, the defendant must show

that counsel’s performance was deficient, and second, the defendant must show that the deficient

performance prejudiced the defense. 466 U.S. at 687. Explanatory excerpts from Stringer, upon which

this Court has previously relied, follow:

        This requires showing that counsel’s error were so serious as to deprive the defendant of
        a fair trial, a trial whose result is reliable. 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.
        ....
        Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting
        for a defendant to second guess counsel’s assistance after conviction or adverse sentence,
        and it is all to easy for a court, examining counsel’s defense after it had proved
        unsuccessful, to conclude that a particular act or omission of counsel unreasonable. A fair
        assessment of attorney performance requires that every effort be made to eliminate the
        distorting effect 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.” There are countless ways to
        provide effective assistance in any given case. Even the best criminal defense attorneys
        would not defend a particular client in the same way.

454 So. 2d at 477. In Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991), this Court required the

defendant to show the existence of a reasonable probability that, but for counsel’s unprofessional errors,

the outcome would have been different, where “a reasonable probability is a probability sufficient to

undermine confidence n the outcome.”

¶16.    Walker raises several claims of ineffective assistance of counsel. On direct appeal, we addressed

the merits of these claims underlying these ineffectiveness claims. Because we have held that the underlying

claims are without merit, Walker cannot show the requisite deficient performance and resulting prejudice

necessary to establish the various claims of ineffective assistance of counsel. Additional substantive claims


                                                      9
raised in this application have all been held to be procedurally barred and/or addressed on the merits on

direct appeal. Since the claims have been addressed on the merits on direct appeal, Walker cannot

relitigate those claims on post-conviction review. See Miss. Code Ann. § 99-39-21(3).

                  A.      Failure to Raise the Denial of His Motion for Continuance
                          in the Motion for a New Trial.

¶17.      Walker contends his trial counsel’s failure to raise the denial of his motion for continuance in the

motion for new trial and to show this Court how the denial resulted in “irreparable injury to the petitioners’s

defense” constituted ineffective assistance of counsel. The claim relating to the denial of the continuance

was presented this court on direct appeal.

¶18.      This Court imposed a procedural bar to the consideration of this claim. Walker, 671 So. 2d at

591. However, this Court also alternatively addressed the merits of the claim. Clearly, this Court is

allowed to impose a procedural bar and alternatively address the merits without waiving the application of

the bar. See Harris v. Reed, 489 U.S. 255, 260-63, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308

(1989).

¶19.      Walker has recast this argument in the terms of a claim of ineffective assistance of counsel. We

look to the alternative discussion of the merits of the claim. In discussing the merits of the claim this Court

concluded the discussion with the following finding:

          Under the facts presented: where no discovery violation occurred; where the defense was
          afforded two days to review the fifty five minute videotape and accompanying typed
          transcript of Riser’s statement (provided two months before trial); where extensive cross
          examination was conduced, and where there is no indication the case would have been
          handled differently had more time been allowed, the denial of a continuance was not in
          error. This assignment of error is procedurally barred and alternatively without merit.

Walker, 671 So. 2d at 593.




                                                      10
¶20.    “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, 466 U.S. at 686, 104 S.Ct. at 2064. The test is two

pronged: The defendant must demonstrate that his counsel’s performance was deficient, and that the

deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064;

Washington v. State, 620 So.2d 966, 972 (Miss. 1993). “This requires a showing that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 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 at 477 (citing

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). “In any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel’s assistance was reasonable considering all the

circumstances.” Stringer, 454 So. 2d at 477 (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2065;

State v. Tokman, 564 So. 2d 1339, 1343 (Miss. 1990)).

¶21.    Judicial scrutiny of counsel’s performance must be highly deferential. 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 a large 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.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Stringer, 454




                                                       11
So. 2d at 477. In short, defense counsel is presumed competent. Bell v. Cone, 535 U.S. at 702;

Johnson v. State, 476 So. 2d 1195, 1204 (Miss. 1985).

¶22.    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, at 430. This means a “probability sufficient to undermine the confidence in the

outcome.” Id. The question here is whether there is a reasonable probability that, absent the errors, the

sentencer—including an appellate court, to the extent it independently reweighs the evidence–would have

concluded that the balance of the aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.

¶23.    There is no constitutional right then to errorless counsel. Mohr v. State, 584 So.2d at 430;

Cabello v. State, 524 So. 2d 313, 315 (Miss. 1988) (right to effective counsel does not entitle defendant

to have an attorney who makes no mistakes at trial; defendant just had 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, 584 So. 2d at 430.

¶24.    In order to prove a claim of ineffective assistance of counsel a petitioner must show that counsel’s

performance was deficient and second, show that the deficient performance prejudiced the defendant.

Both showings must be made.

¶25.    Walker cannot demonstrate that there exists a reasonable probability that, even assuming deficient

performance, that the results of the proceeding would have been different. Walker cannot show prejudice

resulting from his trial counsel’s actions. Additionally, because this Court found no merit in Walker’s claim




                                                    12
of error regarding the denial of the continuance, Walker cannot demonstrate prejudice and cannot establish

a claim of ineffective assistance of counsel.

                B.       Counsel’s failure to offer lesser-included offense
                         instructions.

¶26.    Walker’s next contention is that trial counsel was ineffective in failing to offer additional lesser-

included offense instructions for consideration by the trial court. The jury was instructed on the offenses

of murder and manslaughter in this case. However, Walker contends that he should have been granted a

culpable negligence manslaughter instruction. ¶27.         This Court imposed a procedural bar to this claim

on direct appeal for failure of counsel to object, but this Court alternatively addressed the merits of this

claim and held the claim to be without merit. See Walker, 671 So. 2d at 596-98. Since we held the

claim to be without merit on direct appeal, Walker cannot demonstrate the required prejudice to sustain

a claim of ineffective assistance of counsel under Strickland.

¶28.    Walker is not entitled to seek relief on this claim of ineffective assistance of counsel.

                C.       Admission of the Photograph of the Victim Taken Prior to
                         Her Death.

¶29.    Walker's next claim is that trial counsel was ineffective in failing to object to the admission of a

photograph of Konya Edwards taken prior to her death. Appellate counsel did raise this claim on direct

appeal and initially the Court held the claim to be barred for the failure to object. However, the Court then

alternatively addressed the merits of the claim and held it to be without merit. See Walker, 671 So.2d at

600-01. Since the claim was alternatively held to be without merit on direct appeal, Walker cannot

demonstrate the requisite prejudice to demonstrate a claim of ineffective assistance of counsel. Walker has

not shown that a reasonable probability exists that the results of his trial would have been different absent




                                                     13
counsel's failure to object to the photograph which had been used to identify the victim. Further, he has not

shown that the trial court would have excluded the photograph over the objection of trial counsel.

¶30.    Having failed to show both deficient performance and actual prejudice, Walker has failed to

demonstrate that he received ineffective assistance of counsel by the failure to object to the introduction

of the photograph of Konya Edwards prior to her death. This claim of ineffective assistance of counsel is

totally without merit. Walker is not entitled to seek relief on this claim of ineffective assistance of counsel.

                 D.      Failure to Object to Portions of Dr. McGarry's Testimony.

¶31.    Walker next contends that trial counsel was ineffective in failing to object to testimony by the

pathologist, Dr. Paul McGarry, regarding the condition of Konya Edwards's body at the time he performed

the autopsy. Walker contends that the testimony went into “nauseating detail” and had no probative value.

This claim was raised on direct appeal and addressed on the merits. See Walker, 671 So.2d at 603.

However, Walker now states he “disagrees” with the Court’s analysis of the issue and attempts to build

a claim of ineffective assistance of counsel on his disagreement. Walker does not comprehend the law in

this regard. The fact that he has a disagreement with the prior findings of this Court is not relevant to the

outcome of this claim. Since this Court decided the underlying substantive claim on the merits and held

the claim to be without merit, Walker cannot demonstrate the requisite deficient performance and prejudice

required by Strickland.

¶32.    Walker has failed to demonstrate that the failure to object to Dr. McGarry's testimony was

ineffective assistance of counsel. Walker is not entitled to seek relief on this claim of ineffectiveness.

                 E.      Counsel's Failure to Object to the Granting of
                         Instruction S-9 on Aiding and Abetting.




                                                      14
¶33.     Walker's next claim regarding ineffective assistance of counsel is rather confusing in that he has

evidently combined the argument regarding two instructions into one claim. First, he contends that trial

counsel was ineffective in failing to object to Instruction S-9 which was an aiding and abetting instruction.

However, Walker then switches gears and begins discussing the claim raised on direct appeal relating to

Instruction S-2, which is an acquit first instruction. Walker then switches back to the discussion of

Instruction S-9 for the remainder of the argument on this claim. Since there is some confusion over just

what claim Walker is presenting to the Court , we will address both out of caution.

                 Instruction S-9

¶34.     Walker raised this claim on direct appeal. The Court held the claim to be procedurally barred as

the objection interposed at trial was different than that raised on appeal. See Waker, 671 So.2d at 605-

06. The Court did not alternatively address the merits of this claim. Therefore, in looking to the merits of

this claim, the instruction was a proper statement of the law in 1991at the time of trial. The instruction given

was approved as a correct statement of the law by this Court in Fleming v. State, 604 So.2d 280, 287

(Miss. 1992), and Davis v. State, 586 So.2d 817, 821 (Miss. 1991). The instruction was upheld against

the same argument made here in Simmons v. State, 568 So.2d 1192, 1203-04 (Miss. 1990). Simmons

challenged the instruction stating that it misled the jury because it implies that conviction was proper where

only one element of the crime is proven. The Court held that this instruction was proper when read with

the other instructions requiring the State to prove every element of the crime beyond a reasonable doubt.

See Kelly v. State, 493 So.2d 356, 359 (Miss. 1986); White v. State, 330 So.2d 877, 879 (Miss.

1976).




                                                      15
¶35.    Under the teachings of Malone v. State, 486 So.2d 360 (Miss. 1986), Instruction S-9, when

read in conjunction with Instruction S-1 and Instruction S-2, clearly required the jury to find all the elements

of the crime for which Walker was charged. In Malone this Court stated:

        As all surely know by now, we do not review jury instructions in isolation. Rather, we read
        all instructions as a whole to determine whether the jury has been correctly instructed. Not
        every point involved in a case must be included in every instruction given. Clayton v.
        Thompson, 475 So.3d 439,445 (Miss. 1985). Assuming arguendo that Instruction
        C.OO is less than perfect, we find that the instructions given the jury as a whole fairly and
        adequately state the law and that reversal would be inappropriate. [Internal quotes
        omitted.] More specifically, a combined reading of Instruction Nos. C.OO, S-1 and D-7
        fairly present all issues warranted by the evidence and inherent in the charge of accessory
        before the fact of armed robbery. Miss. Code Ann. §§97-3-79 and 97-1-3 (1972).

486 So.2d at 365.

¶36.    Instructions S-1, S-2 and S-9, read together, require the jury to find that Konya Edwards was

killed and correctly set forth the other elements and issues the jury must find before Walker could be

convicted. See Bell v. State, 725 So.2d 836, 847-48 (Miss. 1998); Carr v. State, 655 So.2d 824,

832-33 (Miss. 1995); Bullock v. State, 391 So.2d 601, 609 (Miss. 1980). The instruction was a correct

statement of the law in 1991 and could have been properly given even if it had been objected to by counsel

on the grounds now asserted.

¶37.    A similar instruction was first questioned in Hornburger v. State, 650 So.2d 510, 514-15 (Miss.

1995). There the Court held the instruction to be improper, but harmless when the jury was fully instructed

that it must find all of the elements of the offense in other instructions. The instruction continued to be

challenged over the next several years. In Milano v. State, 790 So.2d 179 (Miss. 2001), this instruction

was once again given. The Court held the instruction to be improper, but once again, the Court found any

error to be harmless because when the instructions were read as a whole, the jury was properly instructed

on its duty. Further, the Court held:

                                                      16
        The same problematic jury instruction used in Hornburger, Berry, and Lester is once
        again before this Court. To avoid any further confusion, today, we prospectively adopt
        the Fifth Circuit's Pattern Jury Instruction on Aiding and Abetting due to continuing
        litigation and confusion over this issue. The use of this instruction should cure future
        problems regarding this issue.

790 So.2d at l85. The Court was clear that the Fifth Circuit Pattern Jury Instruction on Aiding and Abetting

was to be given prospective application only. Although Walker asks the Court to adopt the Fifth Circuit

instruction in his application, clearly Walker fails to comprehend the decision in Milano. Therefore,

Walker cannot avail himself of the decision in Milano.

¶38.    Looking to the instructions given in this case in addition to S-9 we find the jury was fully instructed

on its duties. Instruction C.I stated in part: “You are not to single out one instruction alone as stating the law

but you must consider these instructions as a whole.” In Instruction C.I3 we find the following language:

“This presumption places upon the State of Mississippi the burden of proving the Defendant guilty of every

material element of the crime with which he is charged. Before you can return a verdict of guilty, the State

of must prove beyond a reasonable doubt that the Defendant is guilty.” In Instruction C-20 we find the

following language: “If you find that the State has failed to prove any one of the essential elements of the

crime of CAPITAL MURDER, you must find the defendant not guilty of said crime.” Instruction S-l states:

        The Defendant, ALAN DALE WALKER, has been charged in the indictment with he
        crime of Capital Murder for having killed Konya Rebecca Edwards during the commission
        of Sexual Battery of Konya Rebecca Edwards.
        If you find from the evidence in this case beyond a reasonable doubt:
                 1. The incident in this case occurred on or about September 9, 1990, in
                 the First Judicial District of Harrison County, Mississippi;
                 2. Konya Rebecca Edwards was a living human being;
                 3. The Defendant, alone or in conjunction with another, did wilfully,
                 unlawfully and feloniously kill and murder Konya Rebecca Edwards by
                 asphyxiation, said asphyxiation resulted in the death of Konya Rebecca
                 Edwards; and
                 4. That the killing of Konya Rebecca Edwards occurred while the
                 Defendant, alone or in conjunction with another, was in the process of

                                                       17
                committing the crime and felony of Sexual Battery of Konya Rebecca
                Edwards, against her will, then you shall find the Defendant, ALAN
                DALE WALKER, Guilty of Capital Murder.
        If the State has failed to prove any one or more of the above elements beyond a
        reasonable doubt, then you shall find the Defendant Not Guilty of Capital Murder.

Reading the above instructions, including Instruction S-9, as a whole, the jury was fully informed that every

element of the capital murder had to be proved by the State. See Milano, 790 So. 2d at 185; Carr, 655

So. 2d at 832-33.

¶39.    At the time of trial Instruction S-9 was considered a proper statement of the law. Trial counsel is

not required to be prescient, but only to know the law as it exists at the time of trial. A claim of

ineffectiveness cannot be based on trial counsel's failure to anticipate a future change in the law. See

Chase v. State, 699 So.2d 521, 542-43 (Miss. 1997). Therefore, Walker cannot demonstrate deficient

performance in trial counsel's failure to object. Further, since the granting of Instruction S-9 is at most

harmless error, Walker cannot demonstrate actual prejudice. Both findings are required by Strickland.

¶40.    Walker is not entitled to seek relief on the ground of ineffectiveness as it relates to the failure to

object to Instruction S-9 on the grounds presented here.

                 Acquit First Instruction

¶41.    As stated above, Walker’s argument under this number briefly addresses another claim. From

reading the brief reference and looking to the opinion of this Court on direct appeal, we surmise that this

relates to the claim raised on direct appeal concerning the acquit first instruction. The Court considered this

claim, held it to be procedurally barred from consideration, and then alternatively addressed the merits. The

Court held the claim to be without merit. See Walker, 671 So.2d at 606-08.

¶42.    Because this Court held the substantive merits of this claim to be without merit, Walker cannot

sustain the required showing of prejudice to establish a claim of ineffective assistance of counsel.

                                                      18
Apparently, Walker is actually raising this claim as an ineffective assistance of counsel claim, thus he is

entitled to no relief.

         F.       Submission of Aggravating Circumstance that Capital Offense was
                  Committed in the Commission of the Crime of Sexual Battery.

¶43.     Walker next contends that trial counsel was ineffective in failing to object to the submission of the

aggravating circumstance that the crime was committed while he was engaged in the commission of a sexual

battery. The basis of his contention is two fold, first, that there was insufficient evidence to prove sexual

battery and second, that the underlying felony of sexual battery could not be used again as an aggravating

circumstance.

¶44.     First, the claim that trial counsel did not object to the sentencing instruction on the basis of the

sufficiency of the evidence to prove sexual battery is specious. To the contrary, the record in this case

indicates otherwise. Looking to the record, we find the following objection raised during the consideration

of the sentencing instructions:

         STEGALL: So far as B is concerned, judge, we don't feel again that either B-l or B-2 -
         that is, as to the offense was committed during the course of- commission of the crime of
         sexual battery or that it was committed to avoid lawful arrest or detection; we don't feel
         that either of those are supported by the proof and would object to the granting of those
         instructions - those aggravating instructions.

Thus, counsel did specifically object on this ground at trial.

¶45.     Further, on August 21, 1991, trial counsel filed a document entitled “Objections to the State's

Sentencing Instructions.” In this document trial counsel specifically objected to the sexual battery

aggravator on the basis of the sufficiency of the evidence to sustain that underlying felony.

¶46.     Additionally, at the close of the guilt phase, counsel made a lengthy argument and moved to dismiss

the charge of capital murder based on the insufficiency of the evidence to prove sexual battery. The trial



                                                     19
court overruled this motion. Even in the face of his objection being overruled, trial counsel continued to

argue that sexual battery had not been proved by the evidence.

¶47.     Regardless, a claim regarding the sufficiency of the evidence to prove sexual battery was raised

on direct appeal and addressed on the merits by this Court. See Walker, 671 So.2d at 593-96. While

this proposition discussed the claim in light of the guilt phase, the same evidence was considered during the

sentencing phase after the jury had already found, beyond a reasonable doubt, that the murder had been

committed during a sexual battery. Since trial counsel did object and this Court has already decided the

substantive merits of the sufficiency claim as it related to the guilt phase, Walker cannot be heard to

complain that counsel was ineffective. Walker has not demonstrated deficient performance and actual

prejudice because an objection was made to the inclusion of this aggravating factor. This part of this claim

is spurious.

¶48.     Further, trial counsel objected to Instruction S-14, which he argued relieved the State of having

to prove intent to commit the underlying felony of sexual battery before Konya Edwards’s death. This

Court addressed this claim on the merits on direct appeal and held it to be without merit. See Walker,

671 So.2d at 596. This is further proof that trial counsel did object to the sufficiency of the evidence to

support the underlying crime of sexual battery. Since this Court held the underlying claim to be without

merit, there can be no showing of deficient performance and actual prejudice. Without a showing of both,

Walker cannot sustain a claim of ineffective assistance of counsel. Walker is not entitled to seek relief on

this claim.

¶49.     Second, Walker contends in the face of this Court's decision on direct appeal and overwhelming

authority to the contrary that counsel was ineffective in failing to object to the use of the sexual battery

aggravator during the sentencing phase as it was error to used the sexual battery as the underlying crime

                                                     20
and as an aggravator. This Court held the claim to be procedurally barred for the lack of an objection and

then alternatively addressed the underlying substantive claim on direct appeal and found it to be without

merit. See Walker, 671 So.2d at 612. Since the underlying substantive claim was held to be without

merit, Walker cannot show the requisite deficient performance and actual prejudice required to sustain a

claim of ineffective assistance of counsel. Both findings are required to prove a claim of ineffective

assistance of counsel and Walker has failed to show either.

¶50.      In its decision on direct appeal this Court properly relied on the precedent of the United States

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

However, the United States Supreme Court has spoken to this exact question in later cases. In Tuilaepa

v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 2634-35, 129 L.Ed.2d 750 (1994), the Supreme

Court held: "The aggravating circumstance may be contained in the definition of the crime or in a separate

sentencing factor (or in both)." [Parenthetical the Court's.] See United States v. Flores, 63 F.3d 1342,

1370-72 (5th Cir. 1995); Perry v. Lockhart, 871 F.2d 1384 (8th Cir. 1989). Thus, Walker's claim that

the use of the sexual battery in both phases is unconstitutional is totally without merit. Further, specifically

addressing a claim of ineffective assistance of counsel for failing to object to this exact claim in Lockhart

v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), the Supreme Court held that

counsel is not ineffective in failing to object to an aggravating circumstance that duplicates the underlying

felony.

¶51.      This Court's numerous decisions on this subject are in line with those of the United States Supreme

Court as it has long approved the use of the underlying felony which raises the crime to capital murder as

an aggravating factor in the sentencing phase of the trial. See Goodin v. State, 787 So.2d 639, 654-55,



                                                      21
647-49 (Miss. 2001); Manning v. State, 735 So.2d 323, 350-51, 367 (Miss. 1999); Smith v. State,

729 So.2d 1191, 1223, 1256-57 (Miss. 1998); Manning v. State, 726 So.2d 1152, 1196, 1192 (Miss.

1998); Bell v. State, 725 So.2d 836, 858-59, 874-77 (Miss. 1998); Crawford v. State, 716 So.2d

1028, 1049-50, 1078-80 (Miss. 1998);Berry v. State, 703 So.2d 269, 284-86 (Miss. 1997);Wilcher

v. State, 697 So.2d 1123, 1138 (Miss. 1997); Brown v. State, 690 So.2d 276, 295-96 (Miss. 1996);

Brown v. State, 682 So.2d 340, 353-55 (Miss. 1996); Davis v. State, 684 So.2d 643, 663-64 (Miss.

1996); Doss v. State, 709 So.2d 369, 391-92, 392-95 (Miss. 1996); Blue v. State, 674 So.2d 1184,

1215-18 (Miss. l996); Holly v. State, 671 So.2d 32, 39-40 (Miss. 1996); Walker v. State, 671 So.2d

581, 612 (Miss. 1995); Ballenger v. State, 667 So.2d 1242, 1260 (Miss. 1995); Ladner v. State,

584 So.2d 743,762-63 (Miss. 1991); Minnick v. State, 551 So.2d 77, 96-97 (Miss. 1989); Pinkney

v. State, 538 So.2d 329, 358-59 (Miss. 1988); Cole v. State, 525 So.2d 365, 374 (Miss. 1987);

Lockett v. State, 517 So.2d 1346, 1353 (Miss. 1987); Faraga v. State, 514 So.2d 295, 309 (Miss.

1987); Jordan v. State, 464 So.2d 475, 479 (Miss. 1985); Wilcher v. State, 448 So.2d 927, 937-38

(Miss. 1984); Billiot v. State, 454 So.2d 445, 465 (Miss. 1984); Tokman v. State, 435 So.2d 664,

668-69 (Miss. 1983); Leatherwood v. State, 435 So.2d 645, 650 (Miss. 1983); Coleman v. State,

378 So.2d 640, 646-47 (Miss. 1979).

¶52.   Since the jury had already found that the murder was committed during the commission of a sexual

battery, any objection to the granting of an instruction that sexual battery could be considered as an

aggravating circumstance during the sentencing phase of the trial would have been futile. Counsel is not

charged with making futile objections. See Chase v. State, 699 So.2d at 537; Edwards v. State, 615

So.2d 590, 599 (Miss. 1993). Walker has failed to demonstrate the proof required to sustain a claim of


                                                  22
ineffective assistance of counsel for the failure to object to the granting of an instruction that sexual battery

could be considered as an aggravating factor during the sentencing phase of his trial. Walker is entitled to

no relief on this claim.

                 G.        Prosecutorial Misconduct.

¶53.    Walker makes several claims that counsel was ineffective in failing to object to instances of what

he claims were prosecutorial misconduct. We have held all of these following claims to be procedurally

barred from consideration, but more importantly also alternatively addressed the merits of each of the

claims. We will address these claims using the numbering Walker employs.

                           (1) Comment on Walker's Failure to Testify.

¶54.    The heading to Walker's first claim under the prosecutorial misconduct section is somewhat

misleading. The heading states the claim regards a comment on the failure to testify. However, he never

mentions a comment on the failure to testify in the argument under this subsection. Instead, Walker

discussed the prosecutor's comments regarding his unsworn statements of remorse at the conclusion of the

sentencing phase of the trial. In any event, the underlying substance of this claim was fully explored by the

Court on direct appeal and found to be without merit. See Walker, 671 So.2d at 614-16. Since the

underlying issue is without merit, there is no support for a claim of ineffective assistance of counsel as

Walker cannot show any prejudice. Walker must show both deficient performance and actual prejudice

in order to sustain a claim of ineffective assistance of counsel.

¶55.    It has long been the precedent of this Court to allow a defendant to make an unsworn statement

at the conclusion of the sentence phase of a capital sentencing trial. However, making such a statement is

not without peril to the defendant. If the defendant did not testify at the guilt phase or sentence phase and

chooses to make unsworn statements or arguments that go outside the evidence presented, he makes a

                                                      23
partial waiver of the constitutional privilege against self-incrimination and the prohibition against a

prosecutor from commenting on his failure to take the stand. See Duplantis v. State, 644 So.2d 1235,

1251 (Miss. 1994); Bevill v. State, 556 So.2d 699, 710-11 (Miss. 1990); Pinkney v. State, 538

So.2d 329, 358 (Miss. 1988); Jones v. State, 381 So.2d 983, 993-94 (Miss. 1980). Thus, as the Court

found, after making his statements regarding remorse, Walker cannot be heard to complain that the State

made an argument in rebuttal of his assertions of remorse.

¶56.    Walker is entitled to no relief on this claim of ineffective assistance of counsel as he has failed to

demonstrate both deficient performance and prejudice. He has not shown that there is a reasonable

probability the result would have been different absent the failure of counsel to object to the prosecutor's

comments. Walker has failed to sustain this claim of ineffective assistance of counsel.

                         (2)      Improper Vouching of Witness and Personal Opinions.

¶57.    Next Walker contends that his trial counsel was ineffective for failing to object to comments of the

prosecutor which he contends vouched for the reliability of Jason Riser's testimony and offered personal

opinions regarding the same. This claim was raised on direct appeal, and the Court held the underlying

substantive merits of the claim to be procedurally barred. See Walker, 671 So.2d at 616. The Court did

not alternatively address the merits of this claim under this heading in its opinion on direct appeal. Instead,

in the conclusion to the discussion of prosecutorial misconduct section of the opinion, the Court held:

        Considering all of the alleged impermissible comments of the prosecutor, only one appears
        close, the vouching for Riser. As noted, other comments are barred and alternatively,
        meritless. In Minnick, the Court stated:

                 Taken as a whole, all of these statements fall into the permissible latitude
                 afforded attorneys in closing argument. As this Court stated in Johnson
                 v. State, 416 So.2d 383, 391 (Miss.1982), quoting Nelms and Blum
                 Company v. Fink, 159 Miss. 372, 382, 131 So. 817, 820 (1930):


                                                     24
                          Counsel was not required to be logical in argument; he is
                          not required to draw sound conclusions, or to have a
                          perfect argument measured by logical and rhetorical rules;
                          his function is to draw conclusions and inferences from
                          evidence on behalf of his client in whatever he deems
                          proper, so long as he does not become abusive and go
                          outside the confines of the record.

Minnick, 551 So.2d at 93.

        Walker argues that the “cumulative effect of the improper comments and other misconduct
        of the prosecution” deprived him of a fair trial. Walker is correct in citing Stringer v.
        State, 500 So.2d 928 (Miss. 1986), which notes that death penalty cases demand
        “heightened review” and thus “require that the cumulative impact of all the factors outlined
        above be reviewed. . . .” However, careful consideration of Walker's claims reveals no
        prosecutorial misconduct supporting reversal. There is no merit to Walker's assertion that
        he has been denied a fair trial.

671 So.2d at 619. The Court did address the question on its merits and found that the comment was not

reversible error. Since the underlying substantive merits have been held to be without merit, Walker cannot

show the prejudice which is necessary to sustain a claim of ineffective assistance of counsel. Walker has

failed to demonstrate prejudice in the failure to object. He is entitled to no relief on this claim of ineffective

assistance of counsel.

                          (3)      Misstatements of Law.

¶58.    Walker's next contention is that trial counsel rendered ineffective assistance of counsel in failing to

object to certain misstatements of the law by the prosecutor. This claim was raised on direct appeal and

was held to be procedurally barred for the lack of an objection at trial. However, the Court alternatively

addressed the merits of the claim and held it to be without merit. See Walker, 671 So.2d at 617-18.

Since the underlying substantive merits of the claim were held to be without merit, Walker cannot

demonstrate the required deficient performance and prejudice. Since Walker cannot show either of the

required foundations for the claim of ineffective assistance of counsel, he is entitled to no relief on this claim

                                                       25
of ineffective assistance of counsel. Walker has failed to sustain this claim of ineffective assistance of

counsel.

                         (4)      Comments on Appellate Review.

¶59.    Next Walker makes the claim that counsel was ineffective in failing to object to statements he

contends were comments on appellate review. This claim was raised on direct appeal and held to be

procedurally barred by the Court. Alternatively, the Court addressed the substantive merits of the claim,

finding that there was no comment on appellate review made by the prosecutor. See Walker, 671 So.2d

at 618-19. Since, the underlying substantive claim was held to be without merit, and Walker cannot

demonstrate deficient performance or prejudice. Without a showing of both of these factors, he cannot

establish a claim of ineffective assistance of counsel based on this claim. Walker is entitled to no relief on

this claim of ineffective assistance of counsel.

                         (5)      Cumulative Effect of Instances of Prosecutorial Misconduct.

¶60.    Walker next contends that the cumulative effect of the above errors demonstrates ineffective

assistance of counsel. Walker contended on direct appeal that the cumulative effect of the several claims

of prosecutorial misconduct warranted reversal. However, the Court addressed the merits of this underlying

substantive claim on direct appeal and held that Walker had not been denied a fundamentally fair trial by

the claimed instances of prosecutorial misconduct. See Walker, 671 So.2d at 619. Therefore, the

substantive claim underlying this claim of ineffective assistance of counsel has held to be without merit. Since

the claim was held to be without merit, Walker cannot establish the prejudice necessary to sustain a claim

of ineffective assistance of counsel. This claim is without merit.

¶61.    Walker also makes an incorrect statement of the law in this application. He contends that

Williams v. Taylor, 529 U.S. at 387-88, requires that a reviewing court consider the cumulative effect

                                                      26
of counsel's deficient performance. The Supreme Court made no such holding. The Supreme Court was

considering a claim of ineffective assistance of counsel based on the failure of counsel to introduce

significant mitigating evidence. In discussing this claim the Supreme Court held:

        Second, the State Supreme Court's prejudice determination was unreasonable insofar as
        it failed to evaluate the totality of the available mitigation evidence - both that adduced at
        trial, and the evidence adduced in the habeas proceeding in reweighing it against the
        evidence in aggravation. See Clemons v. Mississippi, 494 U.S. 738, 751-752, 110
        S.Ct. 1441, 108 L.Ed.2d 725 (1990).

Williams, 529 U.S. at 397-98.

¶62.    Clearly, this Court made such an analysis of the merits of this claim on direct appeal in the final

paragraph of the section dealing with cumulative prosecutorial error. See Walker, 671 So.2d at 619.

Looking again to Williams, we find the only mention of cumulative error in the whole opinion of the

Supreme Court to be in the next to the last paragraph of the opinion. The Court stated:

        In our judgment, the state trial judge was correct both in his recognition of the established
        legal standard for determining counsel's effectiveness, and in his conclusion that the entire
        post-conviction record, viewed as a whole and cumulative of mitigation evidence presented
        originally, raised “a reasonable probability that the result of the sentencing proceeding
        would have been different” if competent counsel had presented and explained the
        significance of all the available evidence. It follows that the Virginia Supreme Court
        rendered a ‘decision that was contrary to, or involved an unreasonable application of,
        clearly established Federal law.’ Williams’ constitutional right to the effective assistance of
        counsel as defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
        L.Ed.2d 674 (1984), was violated.

Williams, 529 U.S. at 398-99. Clearly, the Court was not speaking of cumulating the various errors of

counsel, but rather was referring to the omitted mitigating evidence. Walker also argues that the United

States Court of Appeals for the Fifth Circuit held in Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999),

that there must be a cumulative error review of ineffective assistance claims. Walker is incorrect in his

analysis of Moore. There the Fifth Circuit found no less than four instances of ineffective assistance of


                                                     27
counsel, each independently requiring vacation of the death sentence. In the concluding sentence of the

paragraph outlining these deficiencies and after finding that each resulted in Strickland prejudice, the

court concluded:

        We therefore conclude that trial counsel's cumulative errors rendered the result of Moore's
        punishment phase unreliable and affirm the district court's grant of relief as to punishment
        only.

Moore, 194 F.3d at 622. The Fifth Circuit did not state that the cumulative effect of the errors was the

basis of its finding of ineffective assistance. Instead, the Fifth Circuit stated the cumulative, meaning four,

errors were the basis of ineffective assistance of counsel.

¶63.    Walker also relies on Henry v. Scully, 78 F.3d 51 (2d Cir. 1996) and Harris ex rel.

Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995). Both of these cases stand for the proposition that

once several instances of deficient performance have been found to exist that the prejudice inquiry can take

the cumulative effect of the deficient performance into account. In fact, the Ninth Circuit decision clearly

states that it had only done this type analysis once before in the post-Strickland era. 64 F.3d at 1438.

In the case at bar, the claims raised have all been held to be without merit so no prejudice can be shown

individually or cumulatively. In Russell v. State, 849 So.2d 95, 122 (Miss. 2003), this Court refused to

adopt the defendant’s argument that this Court “must review the totality of the circumstances and the

cumulative effect of counsel’s lapses.” Instead, this Court reiterated the proper standard for determining

whether counsel was constitutionally ineffective:

        This Court looks at the totality of circumstances to determine whether counsel's efforts
        were both deficient and prejudicial. “Judicial scrutiny of counsel's performance [is] highly
        deferential.” There is a strong but rebuttable presumption that counsel's conduct falls within
        the wide range of reasonable professional assistance. Only where it is reasonably probable
        that but for the attorney's errors, the outcome of the trial would have been different, will
        we find that counsel's performance was deficient.


                                                     28
Russell, 849 So. 2d at 122 (quoting Holly v. State, 716 So.2d 979, 989 (Miss.1998)). In Holly, this

Court further explained,

        The record shows that Jones did not raise any objections during the argument, although
        there were several points at which an objection might have been appropriate. However,
        we do not find that counsel's failure to object shakes our confidence in the reliability of the
        outcome.

716 So.2d at 989 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In order for there to be a

cumulative effect of errors, there must first be errors. In Walker, this Court has ruled that “[t]here is no

reversible error in either phase of the trial, thus there is no cumulative error. 671 So. 2d at 629 (citing

Foster, 639 So. 2d at 1303).

¶64.    Finally, Walker cites Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490

(1995). We note that Kyles has nothing to do with ineffective assistance of counsel, and we are at a loss

as to why counsel has cited this case as authority for an ineffective assistance of counsel claim.

¶65.    On direct appeal this Court stated it was considering the cumulative effect of the claimed errors in

holding the claims of prosecutorial misconduct to be without merit. Therefore, even if Williams could be

read as requiring a cumulative effect analysis, which it cannot, this Court considered the cumulative effect

of the claims of prosecutorial misconduct and held that Walker had not been denied a fair trial. That said,

Walker still has not shown the requisite prejudice to demonstrate ineffective assistance of counsel. He is

entitled to no relief on this claim of ineffectiveness of counsel.

                 H.      Outburst from State Witnesses and Victim's Family Members.

¶66.    Walker places this next claim under the heading of prosecutorial misconduct. Such claim has

nothing to do with prosecutorial misconduct. However, we will address this claim as he has numbered it.




                                                       29
¶67.    This next claim of ineffective assistance counsel is based on the failure of Walker's trial counsel to

interpose an objection to the emotional outbursts during the trial proceedings. This claim was raised on

direct appeal by Walker. The Court noted that all but one of the instances raised were not accompanied

by a contemporaneous objection at trial. Therefore, the Court held the claims to be procedurally barred

from consideration. However, the Court addressed the underlying substantive claim alternatively. The

Court concluded that Walker was not denied a fair trial by any of the outbursts. See Walker, 671 So.2d

at 621-22. This claim, like the others addressed above, presents this Court with a claim of ineffective

assistance of counsel based on underlying substantive claims which this Court has already addressed and

held to be without merit. Since the underlying substantive issues of the ineffectiveness claim have been held

to be without merit, Walker cannot establish the deficient performance and prejudice required by

Strickland. Walker is not entitled to seek relief on this claim of ineffective assistance of counsel.

                 I.      Failure to Argue the Imposition of a Disproportionate Sentence.

¶68.    Again, this claim has nothing to do with prosecutorial misconduct. However, Walker contends that

trial counsel was ineffective in failing to request the trial court to impose upon him the same sentence

received by Riser. The basis of his contention is that the failure to raise the proportionality of the sentence

at trial is ineffective assistance of counsel. No such claim was raised on direct appeal. However, this Court

did address the proportionality of the sentence on direct appeal. The Court concluded that the sentence

was not disproportionate to the crime. See Walker, 671 So.2d at 630-31. Since we considered the

merits of this claim the underlying substantive merits of the claim have been decided against Walker. This

Court’s holding that the sentence was not disproportionate demonstrates that Walker suffered no prejudice.

Therefore, Walker cannot demonstrate the requisite deficient performance and prejudice required by

Strickland.

                                                     30
¶69.    Walker also contends that trial counsel was ineffective for failing to request the trial court to impose

upon him a sentence that was proportionate to that received by Jason Riser. If his contention is that counsel

should have requested the trial court to conduct a proportionality review and sentence him to life it is totally

without merit. Under the Mississippi capital sentencing scheme the trial court is not empowered to conduct

a proportionality review. That mandatory function is reserved to this Court by Miss. Code Ann. § 99-19-

105(3)(c). Thus, even if trial counsel had asked the trial court to perform such a review, it would not have

had the authority to conduct a proportionality review in this case. Further, there is no federal constitutional

requirement that a proportionality review be conducted before a death penalty can be imposed, this is only

a state statutory requirement. See Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871,79 L.Ed.2d 29 (1984)

(No Eighth Amendment right to proportionality review of sentence).

¶70.    However, it may appear to be that Walker's claim is that trial counsel did not request the trial court

to impose the same life imprisonment sentence that Riser obtained in his plea bargain agreement with the

State. If this is in fact Walker’s argument, the record does not support such an assertion. Considering

the written objections to the instructions trial counsel filed, we find the following request:

        (5) Because none of these aggravating circumstances has been proved beyond a
        reasonable doubt, this Court must instruct the jury to return a sentence of life imprisonment.
        MCA 99-19-101 (2)(5).

Thus, counsel did request that the court sentence Walker to life imprisonment, the same sentence Riser

received. Walker cannot sustain a claim of ineffective assistance of counsel on this point.

¶71.    In conclusion, considering all of the claims, even if done in a cumulative manner, Walker has failed

to demonstrate deficient performance and resulting prejudice, both of which are required to support a claim

of ineffective assistance of counsel. Walker is entitled to no relief on his claims of ineffective assistance of

counsel.

                                                      31
        II.      THE CLAIM REGARDING INSTRUCTION S-9 IS BARRED BY
                 THE DOCTRINE OF RES JUDICATA.

¶72.    Walker next moves to substantive claims of error in his application. The first of these is a claim that

the trial court erred in granting Instruction S-9 for the jury's consideration during the guilt phase of the trial.

This claim was raised on direct appeal and held to be procedurally barred on direct appeal for the failure

to object at trial. Since the Court has already considered this claim on direct appeal and imposed a bar to

this claim, it is now res judicata under Miss. Code Ann. § 99-39-21 (1) & (3). This claim cannot be

revisited. To the extent that Walker attempts to raise claims regarding this instruction for the first time in

this post-conviction application, they are also barred. See Miss. Code Ann. § 99-39-21 (2) (arguing

different theories on post-conviction review barred absent a showing of cause and actual prejudice).

Walker is now barred from raising this claim again.

        III.     THE CLAIM REGARDING THE REFUSAL TO GRANT A
                 CONTINUANCE BY THE TRIAL COURT IS BARRED BY THE
                 DOCTRINE OF RES JUDICATA.

¶73.    Walker next reasserts the claim made on direct appeal regarding the failure of the trial court to grant

a continuance based on Jason Riser's guilty plea. This claim was addressed on the merits on direct appeal

and decided against Walker. Walker cannot raise this claim again on post-conviction review. See Miss.

Code Ann. § 99-39-21(3); Wiley v. State, 750 So.2d 1193, 1200 (Miss. 1999); Foster v. State, 687

So.2d 1124, 1129, 1138, 1140 (Miss. 1996); Wiley v. State, 517 So.2d 1373, 1377 (Miss. 1987).

        IV.      THE CLAIM BASED ON TISON v. ARIZONA IS PROCEDURALLY
                 BARRED FROM CONSIDERATION FOR THE FIRST TIME ON
                 POST-CONVICTION REVIEW.

¶74.    Walker next raises for the first time a claim that the sentencing instruction given in this case violates

the teachings of Tison v. Arizona, 481 U.S. 137,107 S.Ct. 1676, 95L.Ed.2d 127 (1987), in that it only


                                                        32
required the jury to find that he “contemplated that lethal force would be used.” First, no such claim was

raised at trial or on direct appeal in this case; and therefore, the claim is barred for failure raise the claim

at the proper time or in the proper manner. See Miss. Code Ann. § 99-39-21(1); Brown v. State, 798

So.2d 481, 491 (Miss. 2001); Wiley, 750 So.2d at 1208; Foster, 687 So.2d at 1138. Walker is

barred from raising this claim for the first time in this post-conviction application unless he can demonstrate

cause and actual prejudice.

¶75.    Walker cannot demonstrate the requisite cause and actual prejudice to overcome the procedural

bar in this case. Looking to the record in this case, we find that the entire premise underpinning this claim

is without merit. The jury was properly instructed that it could consider all of the intent factors contained

in Miss. Code Ann. § 99-19-101(7). This Court has held the jury can be instructed on all of these factors

at the conclusion of the sentencing phase. The jury may properly find one or all as the evidence dictates.

Jordan v. State, 786 So.2d 987, 1026, 1052-53 (Miss. 2001); Watts v. State, 733 So.2d 214, 242,

283-85 (Miss. 1999); Carr v. State, 655 So.2d 824, 838-39 (Miss. 1995); Conner v. State, 632

So.2d 1239, 1273 (Miss. 1993); Lanier v. State, 533 So.2d 473, 491-92 (Miss. 1988); Lockett v.

State, 517 So.2d 1317, 1338 (Miss. 1987); Jones v. State, 517 So.2d 1295, 1302 (Miss. 1987). In

order to return a death sentence, the jury must find, beyond a reasonable doubt, at least one of these

factors. See White v. State, 532 So.2d 1207, 1219-22 (Miss. 1988); Pinkton v. State, 481 So.2d

306, 308-10 (Miss. 1985). Of course, there must be sufficient evidence to support the factor or factors

found by the jury. Carr v. State, 655 So.2d 824, 838-39 (Miss. 1995); Abram v. State, 606 So.2d

1015, 1042 (Miss. 1992); White v. State, 532 So.2d 1207, 1219-22 (Miss. 1988).




                                                      33
¶76.    In the case at bar the jury made a finding of two of these factors beyond a reasonable doubt. The

sentencing verdict contains the following factors:

        1.      That the Defendant intended that the killing of Konya Rebecca Edwards take
                place, and

       2.     That the Defendant contemplated that lethal force would be employed.
Walker's argument here completely overlooks the first finding of the jury and concentrates solely on the

second finding. NeitherTison, nor its predecessor, Enmund v. Florida, 458 U.S. 782,102 S.Ct. 3368,

73 L.Ed.2d 1140 (1982), require more than one of these findings. Thus, assuming arguendo, that Walker's

argument regarding the contemplated use of lethal force finding has any merit, his claim still fails. The jury

clearly found that Walker intended that Konya Edwards be killed. That is sufficient under both Enmund

and Tison. Because the underlying claim is totally without merit, Walker cannot show the requisite cause

and actual prejudice to overcome the procedural bar for failing to raise this claim at the proper time and

in the proper manner. This claim is barred from consideration for the first time in this post-conviction

proceeding. Walker is entitled to no relief on this claim.

¶77.    Walker further argues that the Mississippi death penalty statutes are unconstitutional in that they

are applied to felony murders and “ignore the mental state and relative culpability of the defendant.” Again,

this claim was not raised at trial or on direct appeal and is procedurally barred from consideration for the

first time in this post-conviction petition. See Miss. Code Ann. § 99-39-21(1); Brown v. State, 798

So.2d at 491; Wiley, 750 So.2d at 1208; Foster, 687 So.2d at 1138. Therefore, absent a showing of

cause and actual prejudice to overcome the procedural bar, this claim cannot be considered.

¶78.    Walker cannot show cause or actual prejudice as this claim has been ruled upon on numerous

occasions. The Court has held that the fact Mississippi's capital murder scheme makes the death penalty

a possible punishment for felony murder where there is no requirement to prove an intent to kill, and not

                                                     34
premeditated murder, does not make the Mississippi capital murder statute unconstitutional. See Grayson

v. State, 806 So.2d 241, 252 (Miss. 2001); Simmons v. State, 805 So.2d 452, 507 (Miss. 2001);

Edwards v. State, 737 So.2d 275, 307 (Miss. 1999); Berry v. State, 703 So.2d 269, 286 (Miss.

1997); Evans v. State, 725 So.2d 613, 683-84 (Miss. 1997); West v. State, 725 So.2d 872, 894-95

(Miss. 199S); Holland v. State, 705 So.2d 307, 319-20 (Miss. 1997); Gray v. State, 351 So.2d

1342, 1344 (Miss. 1977); Bell v. Watkins, So.2d 118,124 (Miss. 1980); See also Gray v. Lucas,

671 2d 1086,1104 (5th Cir.), reh’g denied, 685 F.2d 139 (5th Cir. 1982). This same argument has

been rejected as it relates to depraved heart murder. See Grayson v. State, 806 So.2d at 252.

¶79.    In addition, the factors contained in Miss. Code Ann. § 99-19-101(7), require that the jury find

the requisite intent set forth in Enmund and Tison before a death penalty verdict can be returned. The

jury was properly instructed pursuant to Miss. Code Ann. § 99-19-101(7) and found two of those factors.

That is all that is required by the decisions of the United States Supreme Court and the federal constitution.

Walker has failed to show the necessary cause and actual prejudice to overcome the procedural bar to

consideration of this claim. The claim is procedurally barred from consideration for the first time in this post-

conviction application. Walker is entitled to no relief on this claim.

        V.       THE CLAIM RELATING TO THE DENIAL OF WALKER’S
                 CHALLENGES FOR CAUSE IS PROCEDURALLY BARRED BY
                 THE DOCTRINE OF RES JUDICATA.

¶80.    Walker next contends, again, that certain jurors should have been removed from the jury for cause

because of their views on the death penalty. As he did on direct appeal, he relies on Morgan v. Illinois,

504 U.S. 719,112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). However, this claim was raised on direct appeal

and decided contrary to Walker's position then. Walker, 611 So.2d at 624-26. This claim is nothing more



                                                       35
than an attempt to relitigate a claim that has already been fully discussed and decided against Walker. The

attempt to relitigate this claim is barred from consideration on post-conviction review. See Miss. Code

Ann. § 99-39-21(3); Wiley, 750 So.2d at 1200; Foster, 687 So.2d at 1129, 1138, 1140; Wiley, 517

So.2d at 1377. Unlike the bars of waiver and other theories, the res judicata bar is not subject to the cause

and actual prejudice test. See Miss. Code Ann. § 99-39-21(3); Foster v. State, 687 So.2d at 1137;

Gilliard v. State, 614 So.2d 370, 375 (Miss. 1992).

¶81.    Walker cannot relitigate this claim in this post-conviction review. Walker is not entitled to seek

relief on this claim.

        VI.      THE CLAIM RELATING TO THE PROSECUTION'S RACIALLY
                 BIASED USE OF PEREMPTORY JUROR CHALLENGES IS
                 BARRED BY THE DOCTRINE OF RES JUDICATA.

¶82.    Walker attempts to relitigate another claim relating to jury selection in his capital trial. He contends

that the State used its peremptory challenges in a racially discriminatory manner. This claim was litigated

at trial and on direct appeal. This Court held that the claim was without merit on direct appeal. 671 So.2d

at 627-29. Therefore the claim is res judicata. See Miss. Code Ann. § 99-39-21(3); Wiley, 750 So.2d

at 1200; Foster, 687 So.2d at 1129, 1138, 1140; Wiley, 517 So.2d at 1377. Walker cannot relitigate

claims raised and decided against him on direct appeal in a post-conviction application. This claim is barred

from relitigation. Walker is entitled to no relief on this claim.

        VII.     THE CLAIM RELATING TO MELINDA ZAPPIE BEING STRUCK
                 FOR CAUSE IS RES JUDICATA.

¶83.    Once again Walker attempts to relitigate a claim decided on direct appeal. This issue relates to the

removal, for cause, of prospective juror Melinda Zappie. This claim was raised on direct appeal and

decided against Walker. 671 So.2d at 629. Because this claim has already been litigated and decided on


                                                       36
direct appeal, it cannot be relitigated on post-conviction review. See Miss. Code Ann. § 99-39-21(3);

Wiley, 750 So.2d at 1200; Foster, 687 So.2d at 1129, 1138, 1140; Wiley, 517 So.2d at 1377.

Walker is not entitled to any relief on this claim.

        VII.     WALKER WAS NOT DENIED EFFECTIVE ASSISTANCE OF
                 COUNSEL IN THE CONDUCT OF VOIR DIRE.

¶84.    Walker now returns to the ineffective assistance of counsel theme and contends that trial counsel

was ineffective in failing to conduct an adequate voir dire examination. First, he contends that trial counsel

was ineffective in attempting to rehabilitate prospective juror Melinda Zappie regarding her views toward

the death penalty. Second, he argues that trial counsel failed to make a record of the racial composition of

the jury. He contends that the second claim is per se ineffective assistance of counsel. However, Walker's

claims of ineffective assistance of counsel must fail because the Court addressed the merits of all of the

claims relating to jury selection in its opinion on direct appeal. In the response to the previous ground for

relief we discussed the fact that the claim was barred because the merits of the issue had been addressed

on direct appeal. The ineffective assistance of counsel claim must fail because Walker cannot demonstrate

the requisite deficient performance and resulting prejudice. This Court found that Zappie was properly

excused for cause based on her views toward the death penalty. See Walker, 671 So.2d at 629. While

Walker contends that trial counsel should have done a better job in attempting to rehabilitate Zappie, he

fails to identify a single unasked question that he contends counsel should have asked of Zappie to

rehabilitate her. Thus, Walker has not even attempted to show deficient performance, much less prejudice.

Since the underlying substantive merits of the claim have been held to be without merit, Walker cannot

demonstrate the requisite deficient performance and actual prejudice to establish a claim of ineffective

assistance of counsel. Walker is entitled to no relief on this portion of his claim.



                                                      37
¶85.    Second, as to the claim that counsel was per se ineffective in failing to indicate the racial

composition of the jury, there is no such requirement in the law. Walker cites to this Court's statement in

its direct appeal opinion in which we noted:

        The defense fails to adequately address the composition of the seated jury, as does the
        State. Court papers within the record reviewed by this Court lend no support.

Walker, 671 So.2d at 627. Such information would be necessary in making a determination of whether

a prima facie case had been made in order to require a party to state reasons for the exercise of its

peremptory challenges. However, the question of whether Walker made out a prima facie case is moot

because the State was ordered to give reasons for its strikes without such a finding. It has long been the

law that when the prosecution states its reasons for exercising its peremptory strikes either when ordered

to do so without a finding of a prima facie case or voluntarily, the reasons can be reviewed on appeal. See

Hernandez v. New York, 500 U.S. 352, 352-54, 111 S.Ct. 1859, 1862-63, 114 L.Ed.2d 395, 396

(1991); Hughes v. State, 735 So.2d 238, 250 (Miss. 1999); Manning v. State, 726 So.2d 1152,

1183-83 (Miss. 1998); Davis v. State, 660 So.2d 1228, 1240 (Miss. 1995); Mack v. State, 650

So.2d 1289, 1298 (Miss. 1994); Foster v. State, 639 So.2d at 1279-80. In accord with this precedent,

this Court reviewed, on the merits, the reasons put forward by the prosecution for the exercise of its strikes

in this case. The Court found these reasons to be sufficient and denied Walker's claim under Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Walker, 671 So.2d at 627-29. Since

the underlying substantive merits of this claim have been held to be without merit, any claim of ineffective

assistance of counsel based on the same must fail. Walker has failed to show both deficient performance

and prejudice. He has not demonstrated that there is a reasonable probability that the results of his trial




                                                     38
would have been different. Having failed to establish ineffective assistance of counsel regarding this claim,

Walker’s request to seek post-conviction relief must be denied.

        IX.     THE CLAIM RELATING TO THE PROPORTIONALITY OF
                WALKER'S SENTENCE IS BARRED BY THE DOCTRINE OF RES
                JUDICATA.

¶86.    Walker claims once again that his sentence is disproportionate to that received by his co-defendant

and thereby violates the Eighth Amendment. First, in deciding the direct appeal in this case, this Court

conducted the proportionality review required by Miss. Code Ann. § 99-19-105(3)(c).See Walker, 671

So.2d at 630-31. Thus, the merits of this claim have been decided against Walker. They cannot be

relitigated on post-conviction review. See Miss. Code Ann. § 99-39-21(3); Wiley, 750 So.2d at 1200;

Foster, 687 So.2d at 1129,1138,1140; Wiley, 517 So.2d at 1377.

¶87.    Without waiving the bar in any manner, the federal constitutional portion of the claim Walker makes

is specious because there is no Eighth Amendment right to have a state court conduct any proportionality

review at all. In Pulley v. Harris, the United States Supreme Court held:

        There is thus no basis in our cases for holding that comparative proportionality review by
        an appellate court is required in every case in which the death penalty is imposed and the
        defendant requests it. Indeed, to so hold would effectively overrule Jurek and would
        substantially depart from the sense of Gregg and Proffitt. We are not persuaded that the
        Eighth Amendment requires us to take that course.

465 U.S. at 50-51.

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

Supreme Court held:

        In light of our precedents under the Eighth Amendment, McCleskey cannot argue
        successfully that his sentence is "disproportionate to the crime in the traditional sense." See
        Pulley v. Harris, 465 U.S. 37,43,104 S.Ct. 871, 876, 79 L.Ed.2d 29 (1984). He does
        not deny that he committed a murder in the course of a planned robbery, a crime for which
        this Court has determined that the death penalty constitutionally may be imposed. Gregg

                                                     39
v. Georgia, 428 U.S., at 187,96 S.Ct, at 2931. His disproportionality claim "is of a
different sort." Pulley v. Harris, supra, 465 U.S., at 43, 104~S.Ct, at 876. McCleskey
argues that the sentence in his case is disproportionate to the sentences in other murder
cases.
On the one hand, he cannot base a constitutional claim on an argument that his case differs
from other cases in which defendants did receive the death penalty. On automatic appeal.
The Georgia Supreme Court found that McCleskey's death sentence was not
disproportionate to other death sentences imposed in the State. McCleskey v. State,
245 Ga. 108,263 S.E.2d 146 (1980). The court supported this conclusion with an
appendix containing citations to 13 cases involving generally similar murders. See Ga.
Code Ann. § 17-10-35(e) (1982). Moreover, where the statutory procedures adequately
channel the sentencer's discretion, such proportionality review is not constitutionally
required. Harris, supra, 465 U.S., at 50-51, 104 S.Ct. at 879.

On the other hand, absent a showing that the Georgia capital punishment system operates
in an arbitrary and capricious manner, McCleskey cannot prove a constitutional violation
by demonstrating that other defendants who may be similarly situated did not receive the
death penalty. In Gregg, the Court confronted the argument that "the opportunities for
discretionary action that are inherent in the processing of any murder case under Georgia
law," 428 U.S., at 199, 96 S.Ct, at 2937, specifically the opportunities for discretionary
leniency, rendered the capital sentences imposed arbitrary and capricious. We rejected this
contention.

"The existence of these discretionary stages is not determinative of the issues before us. At
each of these stages an actor in the criminal justice system makes a decision which may
remove a defendant from consideration as a candidate for the death penalty. Furman, in
contrast, dealt with the decision to impose the death sentence on a specific individual who
had been convicted of a capital offense. Nothing in any of our cases suggests that the
decision to afford an individual defendant mercy violates the Constitution. Furman held
only that, in order to minimize the risk that the death penalty would be imposed on a
capriciously selected group of offenders the decision to impose it had to be guided by
standards so that the sentencing authority would focus on the particularized circumstances
of the crime and the defendant." Ibid.

Because McCleskey's sentence was imposed under Georgia sentencing procedures that
focus discretion "on the particularized nature of the crime and the particularized
characteristics of the individual defendant,” Id. at 206, 96 S.Ct., at 2940, we lawfully may
presume that McCleskey's death sentence was not “wantonly and freakishly” imposed, Id.
at 207,96 S.Ct.. at 2941, and thus that the sentence is not disproportionate within any
recognized meaning under
the Eighth Amendment.



                                            40
481 U.S. at 306-07 (footnote omitted). See Walton v. Arizona, 497 U.S. 639, 655-56, 110 S.Ct.

3047, 3058, 111 L.Ed.2d 511 (1990); Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770,

106 L.Ed.2d 1 (1989). Since there is no federal constitutional requirement for this Court to compare

Walker's sentence with Riser's or any other, there can be no Eighth Amendment violation.

¶89.    This Court decided that Walker's sentence is not disproportionate considering the crime and his

individual character. This claim is now res judicata under § 99-39-21(3) and cannot be relitigated on post-

conviction review. See Wiley, 750 So.2d at 1200;Foster, 687 So.2d at 1129, 1138, 1140; Wiley, 517

So.2d at 1377. Walker is not entitled to seek relief on this claim.

        X.      THE CUMULATIVE ERROR CLAIM IS BARRED AND ALSO
                WITHOUT MERIT.

¶90.    Finally, Walker contends that the cumulative effect of all the errors requires that his conviction and

death sentence be set aside by the granting of this post-conviction application. On direct appeal this Court

addressed the claim that the cumulative error in this case required reversal. The Court held:

        Finding no errors of a magnitude requiring reversal, this Court finds both the conviction of
        Walker of capital murder during the commission of sexual battery and the sentence of
        death are upheld.
        There is no reversible error in either phase of the trial, thus there is no cumulative error.
        Foster v. State, 639 So.2d at 1303.
        There never has been a perfect trial. As long as humans conduct and participate in trial of
        lawsuits, there will not be such a trial. This Court has said many times that a defendant is
        not entitled to a perfect trial, only a fair trial. Sand v. State, 467 So.2d 907 (Miss. 1985);
        Bell v. State, 443 So.2d 16 (Miss.1983); Palmer v. State, 427 So.2d 111 (Miss.
        1983); Shaw v. State, 378 So.2d 631 (Miss. 1979); Stringer v. State, 500 So.2d
        928 (Miss. 1986).Walker received a fundamentally fair trial. We affirm both Walker's
        conviction and sentence of death.

671 So. 2d at 629-30.

¶91.    Therefore, any claim that the substantive claims raised in the post-conviction application represent

cumulative error is a question that has been decided against Walker; the claim is res judicata. See Miss.

                                                     41
Code Ann. § 99-39-21(3); Wiley, 750 So.2d at 1195; Foster, 687 So.2d at 1129,1138,1140; Wiley,

517 So.2d at 1377. Walker's assertion that the cumulative effect of counsel's deficient performance

requires reversal of his conviction and sentence is likewise unpersuasive. As pointed out, this Court has

addressed almost every claim on the merits. While a procedural bar was imposed as to many claims the

Court addressed the merits in an alternative. Thus, the merits have been addressed, and no merit was found

to exist on any of the substantive claims. Walker has failed to demonstrate the requisite deficient

performance and resulting prejudice to establish a single claim of ineffective assistance of counsel. There

is no deficient performance to cumulate. Based on the prior decision of this Court and the prior discussion

herein, there are no errors to cumulate; and therefore; there is no cumulative error in this case. Walker was

not denied a fundamentally fair trial in this case and has demonstrated no reason, singly or cumulatively,

which would cause this Court to vacate his conviction of capital murder and sentence of death for the

murder and sexual battery of Konya Rebecca Edwards. Walker is entitled to no relief on this claim.

                                            CONCLUSION

¶92.    For these reasons, this Court denies Walker’s applications for leave to seek post-conviction relief

challenging his capital murder conviction and sentence of death.

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

     PITTMAN, C.J., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ.,
CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




                                                     42
