                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2000-DR-00343-SCT


STEPHEN VIRGIL McGILBERRY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                               2/12/1996
TRIAL JUDGE:                                    HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED:                      JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        ROBERT M. RYAN
                                                DAVID P. VOISIN
                                                STACY PREWITT
ATTORNEYS FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                                BY: MARVIN L. WHITE, JR.
                                                CHARLENE R. PIERCE
                                                JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                             CIVIL - DEATH PENALTY - POST
                                                CONVICTION
DISPOSITION:                                    POST CONVICTION RELIEF DENIED -
                                                03/06/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, JUSTICE, FOR THE COURT:

¶1.    Stephen Virgil McGilberry was tried and convicted of four counts of capital murder committed

when he was sixteen years old. The Circuit Court of Jackson County thereafter sentenced him to death.

We affirmed the conviction and sentence in McGilberry v. State, 741 So. 2d 894 (Miss. 1999), cert.

denied, 529 U.S. 1006, 120 S. Ct. 1273, 146 L. Ed. 2d 222 (2000). After filing a pro se petition for
post-conviction relief, McGilberry, now represented by the Office of Capital Post-Conviction Counsel, has

also filed an application for leave to seek post-conviction relief in the circuit court in which he raises multiple

issues. Finding no merit in these issues, we deny McGilberry's petitions.

                                                    FACTS

¶2.     Sixteen-year old Stephen Virgil McGilberry was charged with the deaths of 44-year-old Patricia

Purifoy, his mother; 44-year-old Kenneth Purifoy, his step-father; 24-year-old Kimberly Self, his half-

sister, and 3-year-old Kristopher Self, his nephew and Kimberly's son. Police were called to Kenneth and

Patricia's home on October 23, 1994, where they found the four bludgeoned bodies. An investigation

revealed that McGilberry and 14- year-old Chris Johnson had taken Kimberly's car and driven to a friend's

house in another town. The next morning, their friend's mother, Brenda Smith Saucier, drove the pair back

to the Purifoy home, where police were waiting.

¶3.     After McGilberry was read his Miranda rights, he signed a waiver. He then confessed to the

killings and told authorities that he and Johnson had committed the murders with baseball bats. McGilberry

indicated that he was disgruntled because his driving privileges had been taken away and that he had

bludgeoned Kenneth and Kimberly while John had hit Patricia and Kristopher. McGilberry also admitted

striking his mother with the baseball bat because he felt that she was suffering. McGilberry told police that

he had taken cash and credit cards from his mother and then driven away in Kimberly's car. Blood stains

on McGilberry's clothing matched the blood types of the victims.




                                                        2
                                            DISCUSSION

                I.      WHETHER PROBABLE CAUSE EXISTED FOR
                        McGILBERRY'S ARREST.

¶4.     McGilberry contends that police had no probable cause to arrest him at the time he arrived at the

crime scene. He also claims ineffective assistance of counsel because counsel failed to challenge the

probable cause for his arrest. On direct appeal, we acknowledged that the issue had not been properly

raised, yet we considered the merits of the claim:

                Regardless, McGilberry's contention that he was illegally arrested is
                without merit. At the time McGilberry gave his confession, he was not
                under arrest. He was only a suspect brought in for questioning.
                Furthermore, McGilberry was sought for questioning because police had
                learned that he was the only surviving family member, he was missing and
                Petranglo had told police to look for McGilberry because Kimberly's
                GEO Storm was not at the Dewberry residence and McGilberry's Bronco
                was there. This issue is without merit.

McGilberry, 741 So. 2d at 904. McGilberry argues that the holding is inconsistent with our decision

in Campbell v. State, 798 So. 2d 524 (Miss. 2001). In that case however, the State conceded that

there was no probable to cause to arrest when the suspects were first taken in for questioning based solely

upon the discovery of the victim's body on the defendant's property. We reversed Campbell's murder

conviction because police seized his clothing without a warrant in order to test for blood stains. In the

present case, probable cause existed based on the facts that McGilberry was the only surviving member

of the family, that Kimberly's car was missing, and that McGilberry's car was not missing. The issue was

correctly decided on direct appeal and is therefore procedurally barred under the doctrine of res judicata.

Miss. Code Ann. § 99-39-21(3) (Supp. 2002).

                II.     WHETHER A JUROR'S STATEMENTS AT A
                        SUBSEQUENT UNRELATED TRIAL CONSTITUTED
                        JUROR MISCONDUCT IN McGILBERRY'S TRIAL.

                                                     3
¶5.     McGilberry contends that juror Greg Harper did not consider mitigating evidence during

McGilberry's trial because, during voir dire in a subsequent unrelated trial, Harper stated that he did not

"give a lot of weight to mitigation." McGilberry concludes that Harper must therefore have withheld

information when examined at McGilberry's trial concerning Harper's willingness or unwillingness to

consider mitigating evidence. When a venireperson in criminal proceedings fails to respond to a question

presented by defense counsel on voir dire, and the venireperson actually has the knowledge to respond

affirmatively or negatively, upon a motion for a new trial, the circuit court should determine whether the

question was relevant to the voir dire examination, whether the question was unambiguous, and whether

the juror had substantial knowledge of the information sought to be elicited. Odom v. State, 355 So. 2d

1381, 1383 (Miss. 1978).

¶6.     In the present case, McGilberry makes no showing that Harper was disinclined to consider

mitigating evidence at the 1995 trial. He only shows that Harper expressed such a sentiment at a later

proceeding. To infer prejudice would be speculative at best, and we do not engage in speculation in such

circumstances. Buckley v. State, 772 So. 2d 1059, 1065 (Miss. 2000). Therefore, Harper did not have

substantial knowledge of the information sought to be elicited, and he did not withhold such information.

This issue is without merit.




                                                    4
                 III.      WHETHER BEING SEEN IN SHACKLES DENIED
                           McGILBERRY A FAIR TRIAL.

¶7.      McGilberry contends that he was denied a fair trial because he was allegedly seen in shackles by

the jurors. First, this claim was not raised at trial or on direct appeal and is now procedurally barred from

collateral review pursuant to Miss. Code Ann. § 99-39-21(1). Second, there is no substantial showing that

McGilberry was actually seen in shackles by the jury. McGilberry instead offers the unsworn statement

of an alternate juror who was released from service prior to deliberation. An alternate that does not sit on

the panel has no affect on the outcome of the case. Mack v. State, 650 So. 2d 1289, 1300 (Miss.

1994). "Generally, we have not found the right to a fair trial to have been abridged where the defendant

has been seen in the courtroom by the jury in shackles or handcuffs." Brown v. State, 690 So. 2d 276,

287 (Miss. 1996) (citing Lockett v. State, 517 So. 2d 1317, 1329 (Miss. 1987)). This issue is without

merit.

                 IV.       WHETHER THE ESPECIALLY HEINOUS,
                           ATROCIOUS OR CRUEL AGGRAVATOR WAS
                           APPROPRIATE.

¶8.      At trial, the State was granted a jury instruction which required the jury to consider whether the

crimes were especially heinous, atrocious or cruel. McGilberry argues that the murders were not heinous,

atrocious or cruel because the victims were either rendered unconscious by the blows or were killed nearly

instantly. McGilberry claims that defense counsel should have objected at trial and should have raised the

matter on direct appeal.

¶9.      The aggravating instruction reads as follows:

                         The Court instructs the jury that in considering whether the capital
                 offense was especially heinous, atrocious or cruel; heinous means
                 extremely wicked or shockingly evil; atrocious means outrageously


                                                      5
                wicked and vile; and cruel means designed to inflict a high degree of pain
                with indifference to, or even enjoyment of the suffering of others.

                        An especially heinous, atrocious or cruel capital offense is one
                accompanied by such additional acts as to set the crime apart from the
                norm of capital murders-the conscienceless or pitiless crime which is
                unnecessarily torturous to the victim. If you find from the evidence beyond
                a reasonable doubt that the defendant utilized a method of killing which
                caused serious mutilation, that there was dismemberment of the body prior
                to death, that the defendant inflicted physical or mental pain before death,
                that there was mental torture and aggravation before death, or that a
                lingering or torturous death was suffered by the victim, then you may find
                this aggravating circumstance.

¶10.    The "especially heinous, atrocious or cruel" aggravating circumstance, without a limiting

instruction, is unconstitutionally vague and, consequently, an invalid aggravating circumstance.Clemons

v. State, 593 So. 2d 1004, 1005 (Miss. 1992). However, the instruction is permissible where additional

limiting language sufficiently refines and narrows the aggravating circumstance of "heinous, atrocious or

cruel" and thereby channels the jury's sentencing discretion in a principled way. Brown v. State, 798 So.

2d 481, 501 (Miss. 2001). We have found the instruction given in the present case to be legally sufficient.

Knox v. State, 805 So. 2d 527, 533 (Miss. 2002).

¶11.    McGilberry concedes the validity of the instruction's language but argues that the instruction was

not supported by the evidence. This issue was capable of determination on direct appeal and is now

procedurally barred from further review. Miss. Code Ann. § 99-39-21(1). Further, we have already

determined on direct appeal that the evidence was more than sufficient to support the jury's finding of

aggravating circumstances:

                        McGilberry stands convicted of brutally murdering his mother, his
                stepfather, his sister and his three year-old step nephew. The method
                used, bludgeoning with a baseball bat, was both gruesome and grisly. The
                evidence showed that the crimes were premeditated and contemplated
                over a period of at least two weeks. McGilberry bludgeoned his family

                                                     6
                 so that he could steal a car, some cash, a money order, and a credit card
                 and then run away from home. The jury decided his fate, and we find no
                 reason to disturb the verdict or sentence.

McGilberry, 741 So. 2d at 925. Defense counsel therefore had no legitimate basis for posing an

objection to the instruction at trial, and any renewed claim on direct appeal would have been fruitless. This

issue is without merit.

                 V.       WHETHER THE GREAT RISK OF DEATH
                          AGGRAVATOR WAS APPROPRIATE.

¶12.    McGilberry argues that the jury instruction concerning the aggravating circumstance as to whether

the defendant created a great risk of death to many persons was deficient in that it failed to require the jury

to find that he "knowingly" created such a risk to persons other than his intended victims. This issue was

capable of determination at trial and on direct appeal and is now procedurally barred from collateral

review. Miss. Code Ann. § 99-39-21(1).

¶13.    The capital murder aggravating circumstance, that a defendant knowingly created a "great risk of

death to many persons," has been applied to a defendant who stabbed to death only members of his family.

Jackson v. State, 684 So. 2d 1213 (Miss. 1996). "To restrict its use to those crimes where very large

numbers of individuals were at risk or those where the safety of others than an intended few was

jeopardized would limit the statute beyond its intended scope." Id. at 1235. The State concedes that the

instruction did not recite that McGilberry "knowingly" created the risk but points out that there was

sufficient evidence for the jury to find that McGilberry, by his conduct, knowingly put his family in jeopardy.

The instruction as given was substantially correct and there was evidence at trial that McGilberry planned

the murders well in advance.




                                                      7
¶14.    If one aggravator is found to be invalid, we are authorized to reweigh the remaining aggravators

against the mitigating circumstances and affirm, hold the error to be harmless, or remand for a new

sentencing hearing. Miss Code Ann. § 99-19-105(5)(b) (Rev. 2000). Therefore, even if this aggravating

circumstance is assumed to be invalid, the remaining aggravating circumstances more than support the

imposition of the death penalty. As previously noted, McGilberry "bludgeoned his family so that he could

steal a car, some cash, a money order, and a credit card and then run away from home." McGilberry,

741 So. 2d at 925. The crime was premeditated and was committed in brutal fashion. The death sentence

is warranted even absent a finding of the "great risk of death" circumstance. This issue is without merit.

                 VI.     WHETHER THE STATE PROVED THE
                         UNDERLYING FELONY OF ROBBERY.

¶15.    McGilberry contends that defense counsel failed to challenge at trial and on direct appeal the State's

assertion that the murders were committed during the course of a robbery. However, we found on direct

appeal that counsel raised the issue at trial by way of a motion for directed verdict and then raised the issue

on direct appeal by claiming error in the denial of a motion to dismiss the capital portion of the indictment.

We said, "Taking all the evidence in the light most favorable to the State, it is apparent that the State

presented more than sufficient evidence to support the jury's finding that the robbery was committed in the

course of the murders." McGilberry, 741 So. 2d at 912. The issue is therefore procedurally barred from

further review by the doctrine of res judicata. Miss. Code Ann. § 99-39-21(3).

                 VII.    WHETHER THE STATE                        MADE IMPROPER
                         CLOSING REMARKS.

¶16.    McGilberry asserts that trial counsel failed to object to the State's closing argument that the jury

should "think of a more appropriate time in your memory for retribution." The State responds that the issue

is procedurally barred from consideration pursuant to Miss. Code Ann. § 99-39-21(1) because the issue

                                                      8
was capable of determination at trial and on direct appeal. However, we have the prerogative of relaxing

the rules of contemporaneous objection and plain error where the interests of justice so require. Williams

v. State, 445 So. 2d 798, 810 (Miss. 1984). In Pinkney v. State, 538 So. 2d 329, 338 (Miss. 1988),

vacated and remanded on other grounds, 494 U.S. 1075, 110 S. Ct. 1800, 108 L.Ed. 2d 931

(1990), we found no reversible error where the State asked the jury to give justice to the deceased victim.

 The State's closing remarks in the present case are no more egregious. This issue is without merit.

                VIII. WHETHER COUNSEL RENDERED INEFFECTIVE
                      ASSISTANCE DURING THE SENTENCING PHASE.

¶17.     McGilberry contends that his defense counsels' performance was deficient at the sentencing phase

of his trial.

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

Burns v. State, 813 So. 2d 668, 673 (Miss. 2001). We have further held that the "failure to present a

case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of

counsel." Williams v. State, 722 So. 2d 447, 450 (Miss. 1998) (citing Williams v. Cain, 125 F.3d

269, 277 (5th Cir.1997)).


                                                    9
¶18.    In the present case, McGilberry does not claim that no case in mitigation was presented but only

that it was poorly prepared and executed. McGilberry argues first that defense counsel inadequately

investigated his background in search of mitigation evidence.

¶19.    Specifically, McGilberry charges that defense counsel were inexperienced, failed to pursue the

appointment of an investigator, and failed to renew a request for a mental health expert. The State correctly

counters that these are blanket assertions unsupported by the record. David Ishee and Anthony Lawrence

both lacked experience in capital representation but filed approximately 40 pretrial motions between

December 1994 and February 1996.

¶20.    McGilberry also claims that his defense was hampered by the failure to secure an investigator. The

evidence was that McGilberry brutally and viciously beat his entire family to death with a baseball bat and

that he had planned their murders. There is no showing that additional investigation into McGilberry's

background would have prevented imposition of the death penalty, only that more details of McGilberry's

less than idyllic childhood would have been exposed.

¶21.    With regard to the claim that counsel failed to pursue an ex parte motion for a mental health expert,

we explicitly held on direct appeal that there was no error in disallowing counsel to proceed ex parte.

McGilberry, 741 So.2d at 916-17. This issue, although couched as an ineffective assistance claim, is

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

¶22.    Dr. Roy Deal, a psychiatrist employed by the State of Tennessee prison system, served as the

mental health expert for the defense. McGilberry now argues that his defense suffered because Dr. Deal's

credentials were insufficient inasmuch as he was not board-certified in psychiatry. McGilberry offers no

authority to support such a proposition. Dr. Deal was qualified as an expert at trial and testified during the

guilt phase that McGilberry was mentally ill and possessed a history of childhood trauma. Dr. Deal testified

                                                     10
that McGilberry was a sociopath with a history of inappropriate conduct as a juvenile. His IQ was 86.

Dr. Deal opined that McGilberry was mentally ill on the day of the murders and unable to appreciate right

from wrong. The record does not support a finding that Dr. Deal's testimony was ineffective, and it

certainly cannot be concluded that defense counsel was ineffective for relying on Dr. Deal at trial. This

issue is without merit.

¶23.    McGilberry argues that counsel was ineffective because the prosecution was able to exploit Dr.

Deal's lack of experience during its closing argument. This argument is unsupported by any legal authority

and is not supported by the record. As previously discussed, Dr. Deal was qualified as an expert and

opined that McGilberry was mentally ill at the time of the murders. This issue is without merit.

¶24.    Defense counsel only presented one witness during the sentencing phase of the trial. Brenda

Saucier, a friend and former neighbor of the Purifoys, testified that she knew McGilberry to be a troubled

and immature child who did not realize the magnitude of his actions. Given the brutal and premeditated

nature of the crimes, defense counsel did well to get just one person to plead with the jury to spare

McGilberry's life. This issue is without merit.

                 IX.      WHETHER COUNSEL WAS INEFFECTIVE FOR
                          FAILING TO OBJECT TO THE ADMISSION OF
                          EVIDENCE OF PRIOR BAD ACTS.

¶25.    McGilberry argues that trial counsel was ineffective for not objecting when his own expert testified

that he (McGilberry) had once been accused of sexually molesting a small child. The information was

disclosed during the guilt phase when defense counsel asked Dr. Deal what medical records he reviewed.

Dr. Deal responded that his review included the records of the Keesler Air Force Base Family Advocacy

Program which had conducted an investigation. Trial counsel was attempting to establish a defense of

insanity at the time of the question.


                                                    11
¶26.    The record indicates that trial counsel intentionally elicited this testimony as part of a showing that

McGilberry's psychological instability was evident at an earlier age. Counsel's choice of whether to ask

certain questions or make certain objections falls within the realm of trial strategy and does not amount to

ineffective assistance of counsel. Cole v. State, 666 So. 2d 767, 777 (Miss. 1995). Such choices are

presumed strategic "unless counsel's tactics are shown to be 'so ill chosen that it permeates the entire trial

with obvious unfairness.'" Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995) (quoting Garland v.

Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). This issue is without merit.

                X.       WHETHER THE DEATH SENTENCE VIOLATES
                         THE MISSISSIPPI CONSTITUTION.

¶27.    McGilberry argues that his death sentence violates the Mississippi Constitution's prohibition against

cruel and unusual punishment because he was only sixteen years old at the time of the offense. McGilberry

also argues that he death sentence as applied to him is disproportionate pursuant to Miss. Code Ann. § 99-

19-105. This issue was considered and rejected on direct appeal. McGilberry, 741 So. 2d at 924-25.

The matter is therefore procedurally barred from consideration of collateral review under the doctrine of

res judicata. Miss. Code Ann. § 99-39-21(3). Without waiving the procedural bar, we have previously

recognized that imposition of the death penalty on a sixteen or seventeen year old presents no per se case

of cruel and unusual punishment, and that age is only a factor to be considered in mitigation. Foster v.

State, 639 So. 2d 1263, 1296 (Miss. 1994). This issue is without merit.

                XI.      WHETHER THE DEATH SENTENCE VIOLATES
                         THE UNITED STATES CONSTITUTION.

¶28.    McGilberry argues that imposition of the death penalty for an offense committed when he was only

16 years of age constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United

States Constitution. This issue was not raised at trial or on direct appeal and is now procedurally barred

                                                     12
fromconsideration. Miss. Code Ann. § 99-39-21(1). Further, the United States Supreme Court has ruled

only that no one under the age of sixteen may receive the death penalty without violating that person's

EighthAmendment rights. Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed. 2d 702

(1988). This issue is without merit.

                XII.     WHETHER THE DEATH SENTENCE IS
                         PROHIBITED BY INTERNATIONAL LAW.

¶29.    McGilberry argues that his execution is prohibited by the International Covenant on Civil and

Political Rights, an international treaty which has been ratified by the United States Senate. This issue was

not raised at trial or on direct appeal is now procedurally bared from consideration. Miss. Code Ann.

§ 99-39-21(1). Without waiving the procedural bar, the issue is without merit because, during the

ratification process, the United States Senate specifically reserved the right to impose capital punishment

on persons below 18 years of age. International Covenant on Civ. and Pol. Rts., S. Exec. Rept., No. 102-

23, 102nd Congress, 2d Sess., 1 (1992). Further, the United States Supreme Court has specifically

upheld the applicability of the death penalty to persons 16 years of age. Thompson v. Oklahoma, 487

U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988). This issue is without merit.

                XIII. WHETHER CUMULATIVE ERROR NECESSITATES
                      A REVERSAL OF THE CONVICTION AND
                      SENTENCE.

¶30.    McGilberry argues that cumulative errors committed at trial denied him a fair trial. Because this

issue was considered and rejected on direct appeal, it is now procedurally barred from further review.

Miss. Code Ann. § 99-39-21(3). Also, since the individual assignments of error are without merit, there

can be no cumulative error. As we stated on direct appeal,

                        We have conducted a thorough review of the record, the briefs,
                and the argument and determined that there are no individual errors which

                                                     13
               require reversal of either McGilberry's conviction or his sentence.
               McGilberry argues that the collective "bad" acts of the prosecutor dictate
               reversal under the cumulative error analysis. While his trial was not
               perfect, we do not find any errors, either individually or cumulatively,
               which warrant reversal. A criminal defendant is not entitled to a perfect
               trial, only a fair trial. Sand v. State, 467 So. 2d 907, 911 (Miss. 1985).
               The evidence of guilt in this case was overwhelming and, while not before
               this Court on an assignment of error, our independent review of the
               sentencing phase reveals no errors. McGilberry received all that he was
               entitled to a fair trial.

McGilberry, 741 So. 2d at 924. This issue is without merit.




                                                  14
                 XIV. WHETHER COUNSEL WAS INEFFECTIVE IN
                      FAILING TO OBTAIN A TRANSFER TO THE
                      YOUTH COURT.

¶31.     McGilberry argues that trial counsel was ineffective for failing to develop and present evidence in

support of his motion to remand the matter to youth court. Miss. Code Ann. § 43-21-151 confers original

jurisdiction on the youth court in all proceedings concerning a delinquent child except where the act

committed by the child, if committed by an adult, would be punishable by life or death. In such cases,

original jurisdiction lies in the circuit court. Foster v. State, 639 So. 2d 1263, 1297 (Miss. 1994).

Juveniles do not fall within the jurisdiction of the youth court if they commit offenses punishable by death

or life imprisonment. Holly v. State, 671 So. 2d 32, 41-42 (Miss. 1996). Consequently there could be

no prejudice to McGilberry's defense for failure to more than just file a motion to transfer the case to youth

court.

¶32.     McGilberry's reliance on the federal case of Foster v. Johnson, 293 F.3d 766 (5th Cir. 2002),

for the proposition that counsel was ineffective is misplaced. In that case, the defendant argued that counsel

was ineffective for failure to even file a motion for transfer to youth court, whereas McGilberry's attorney

actually filed such a motion. The United States Court of Appeals for the Fifth Circuit affirmed the denial

of habeas corpus relief after holding that this Court's finding of no prejudice was not an unreasonable

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

Foster, 293 F.3d at 788. This issue is without merit.

                 XV.     WHETHER COUNSEL WAS INEFFECTIVE IN
                         FAILING TO RAISE THE YOUTH COURT ISSUE ON
                         DIRECT APPEAL.

¶33.     Because trial counsel's performance in seeking a transfer to the youth court was not deficient,

appellate counsel cannot be faulted for not raising the issue on direct appeal. This issue is without merit.

                                                     15
                 XVI. WHETHER COUNSEL WAS INEFFECTIVE IN
                      FAILING TO OBJECT TO McGILBERRY'S
                      APPEARANCE IN SHACKLES.

¶34.    As previously discussed, McGilberry has submitted only the unsworn affidavit of an alternate juror

who was released from service prior to deliberation. There can be no prejudice based on a showing that

only a non-deliberating juror saw McGilberry in shackles. It has been held that the brief and inadvertent

exposure to jurors of defendants in handcuffs is not so inherently prejudicial as to require a mistrial and that

defendants bear the burden of affirmatively demonstrating prejudice. United States v. Diecidue, 603

F.2d 535, 549 (5th Cir. 1979). McGilberry has shown no such merit, and appellate counsel cannot be

faulted for not raising the issue on direct appeal. This issue is without merit.

                                             CONCLUSION

¶35.    Finding no merit in the issues raised by McGilberry, both his pro se petition and his application for

leave to seek post-conviction relief in the circuit court are denied.

¶36.    PETITIONS FOR POST-CONVICTION COLLATERAL RELIEF, DENIED.

       PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, EASLEY, CARLSON AND GRAVES,
JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.




                                                      16
