                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2015-DR-01373-SCT

TIMOTHY ROBERT RONK a/k/a TIMOTHY RONK
a/k/a TIMOTHY R. RONK

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          10/08/2010
TRIAL JUDGE:                               HON. LISA P. DODSON
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF CAPITAL POST-CONVICTION
                                           COUNSEL
                                           BY: ALEXANDER DUNLAP MOORHEAD
                                                KASSOFF
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BRAD ALAN SMITH
NATURE OF THE CASE:                        CIVIL - DEATH PENALTY - POST
                                           CONVICTION
DISPOSITION:                               LEAVE TO SEEK POST-CONVICTION
                                           RELIEF DENIED - 01/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   Timothy Ronk was convicted of capital murder and armed robbery. Ronk v. State,

172 So. 3d 1112, 1121 (Miss. 2015). He was sentenced to death and thirty years in prison,

respectively. Id. We affirmed his convictions and sentences. Id.

¶2.   Ronk now moves for leave to seek post-conviction relief in the trial court, raising five

claims: (1) trial counsel was ineffective; (2) his sentence was disproportionate;
(3) Mississippi’s death-penalty statute is unconstitutional; (4) cumulative error requires

reversal; and (5) trial counsel failed to preserve the record for review.

¶3.     We find that Ronk’s claims are either barred or fail to present a substantial showing

of the denial of a state or federal right; therefore, the motion is denied.

                        FACTS AND PROCEDURAL HISTORY

¶4.     On the morning of August 26, 2008, emergency crews responded to a house fire in

Biloxi, Mississippi. Id. In extinguishing the fire, they found Michelle Lynn Craite’s remains

in the master bedroom. Id. at 1121–22. An autopsy showed multiple stab wounds to her back;

severe burns that “destroyed her flesh down to the bone”; and “blistering and burning to the

lining of her mouth, tongue, larynx, and windpipe.” Id. at 1121. Her blood also had a high

level of carbon monoxide. Id. Evidence thus indicated that she had been alive and breathing

during the fire. Id. A forensic pathologist said that the stab wounds not only were likely the

cause of her death, but also that they incapacitated her by preventing her escape from the fire.

Id.

¶5.     Authorities determined the fire had been set intentionally, with gasoline vapors as the

ignition source. Id. at 1122. They also learned that Ronk had been living there. Id. At the

time, he was on house arrest, having been convicted of grand larceny weeks earlier. Id. at

1147.

¶6.     Bank records showed that the morning Craite died, someone had used her debit card

at a Walmart in D’Iberville, Mississippi, to withdraw $500 from the ATM and to purchase

more than $400 in jewelry. Id. at 1122. Surveillance footage showed that it was Ronk. Id.



                                               2
And the Walmart’s manager identified Ronk as the person who had bought a ring that

morning. Id. at 1122–23.

¶7.    Authorities also learned that Ronk had used one of Craite’s cell phones. Id. at 1123.

Phone records showed frequent calls to Florida resident Heather Hindall. Id. The morning

of Craite’s death, Ronk had texted Hindall that he was “loading up and coming to Florida.”

Id.

¶8.    Authorities arrested Ronk in Florida and spoke to Hindall. Id. She said she had met

him online. Id. She knew he had a “roommate,” but believed he was planning to move to

Florida and marry her. Id. The evening of August 26, 2008, he had arrived in Florida and

proposed to her with the ring he had bought at Walmart. Id.

¶9.    After his arrest, Ronk told Hindall what had happened with Craite. Id. He said they

began arguing when he tried to leave for Florida. Id. She tried to attack him with a knife. Id.

He disarmed her, however, and then stabbed her when she threatened to get a shotgun and

kill him. Id. Afterwards, he poured gasoline on everything, set a fire, drove away, and threw

the knife over a bridge. Id. Ronk later confirmed that story in a letter to Hindall. Id.

¶10.   Ronk was indicted for armed robbery and capital murder with arson as the underlying

felony. Id. at 1124. A jury convicted him of both charges. Id. Following a sentencing

hearing, the jury sentenced Ronk to death for capital murder, finding that the mitigating

circumstances did not outweigh the aggravating circumstances: that the offense (a) “was

committed while [Ronk] was engaged in the commission of [a]rson”; (b) “was committed by




                                              3
a person under sentence of imprisonment”; and (c) “was especially heinous, atrocious, or

cruel.” Id. For the armed robbery, the trial court sentenced Ronk to thirty years. Id.

¶11.   We affirmed the convictions and sentences, id. at 1149, and the mandate issued

September 24, 2015.

¶12.   On September 23, 2016, Ronk filed this motion for leave to seek post-conviction relief

in the trial court, raising five issues:

       (1)     [He] was denied his constitutional right to effective assistance of
               counsel.
       (2)     A review of cases with facts meaningfully similar to [his] case dispels
               the notion that [his] sentence was not “disproportionate to the penalty
               imposed in similar cases.”
       (3)     Mississippi’s death[-]penalty statute is unconstitutional because it is
               arbitrarily and capriciously applied.
       (4)     Cumulative error
       (5)     Trial counsel failed to preserve the record for review.

Ronk also says he must file a supplement. He did so, rendering that issue moot. And in his

rebuttal, he asks this Court to address issues concerning right of access to experts and

litigation expenses. We decline to do so. The trial court ruled on those issues before Ronk

filed this motion, and neither party sought relief.

                                           ANALYSIS

¶13.   When a conviction and sentence have been affirmed on appeal, the petitioner must

seek and obtain leave from this Court before seeking relief in the trial court. Miss. Code Ann.

§ 99-39-7 (Rev. 2015). Leave is granted only if the application, motion, exhibits, and prior

record show that the claims are not procedurally barred and that they “present a substantial



                                              4
showing of the denial of a state or federal right.” Miss. Code. Ann. § 99-39-27(5) (Rev.

2015). Well-pleaded allegations are accepted as true. Simon v. State, 857 So. 2d 668, 678

(Miss. 2003) (citing Moore v. Ruth, 556 So. 2d 1059, 1061–62 (Miss. 1990)).

¶14.   In capital cases, non-procedurally barred claims are reviewed using “‘heightened

scrutiny’ under which all bona fide doubts are resolved in favor of the accused.” Crawford

v. State, 218 So. 3d 1142, 1150 (Miss. 2016) (quoting Chamberlin v. State, 55 So. 3d 1046,

1049–50 (Miss. 2010)). “[W]hat may be harmless error in a case with less at stake becomes

reversible error when the penalty is death.” Crawford, 218 So. 3d at 1150 (quoting

Chamberlin, 55 So. 3d at 1049–50).

¶15.   While the parties argue somewhat about the proper standard of review, Neal v. State

explains that

       Section 99-39-9 suggest[s] a regime of sworn, fact pleadings, based upon
       personal knowledge. The Court upon examination of the application has the
       authority to dismiss it outright,
                if it plainly appears from the face of the motion, any annexed
                exhibits and the prior proceedings in the case that the movant is
                not entitled to any relief. . . .
       On the other hand, if the application meets the[] pleading requirements and
       presents a claim procedurally alive “substantial[ly] showing denial of a state
       or federal right,” the petitioner is entitled to an in[-]court opportunity to prove
       his claims.

Neal v. State, 525 So. 2d 1279, 1280–81 (Miss. 1987) (footnote, citation, and internal

citation omitted).




                                               5
I.     Ronk fails to present a substantial showing that he was denied effective
       assistance of counsel.

¶16.   Criminal defendants are entitled to effective assistance of counsel. E.g. Read v. State,

430 So. 2d 832, 837 (Miss. 1983) (citations omitted). To prove counsel was ineffective,

defendants (or here, petitioners) must meet a two-part test. Doss v. State, 19 So. 3d 690,

694–95 (Miss. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984)).

¶17.   First, petitioners must show that counsel’s performance was deficient, i.e., “counsel’s

representation ‘fell below an objective standard of reasonableness.’” Wiggins v. Smith,

539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003) (quoting Strickland,

466 U.S. at 688). “Reasonableness” is based on “prevailing professional norms.” Wiggins,

539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). “Prevailing norms of practice as

reflected in American Bar Association [(ABA)] standards and the like . . . are guides to

determining what is reasonable.” Strickland, 466 U.S. at 688. But those standards are only

guides. Bobby v. Van Hook, 558 U.S. 4, 8, 130 S. Ct. 13, 17, 175 L. Ed. 2d 255 (2009)

(quoting Strickland, 466 U.S. at 688) (“‘[ABA] standards and the like’ are ‘only guides’ to

what reasonableness means, not its definition.”). “No particular set of detailed rules for

counsel’s conduct can satisfactorily take account of the variety of circumstances faced by

defense counsel or the range of legitimate decisions regarding how best to represent a

criminal defendant.” Strickland, 466 U.S. at 688–89.

¶18.   In assessing counsel’s performance, courts must be “highly deferential,” making

“every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the


                                              6
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Bell v. Cone, 535 U.S. 685, 698, 122 S. Ct. 1843, 1852, 152 L. Ed.

2d 914 (2002) (quoting Strickland, 466 U.S. at 689). A strong presumption exists that

counsel’s conduct “fell within the wide range of reasonable professional assistance.” Ross

v. State, 954 So. 2d 968, 1004 (Miss. 2007) (citing Howard v. State, 853 So. 2d 781, 796

(Miss. 2003)). At the same time, lapses “must be viewed in light of the nature and

seriousness of the charges and the potential penalty.” Ross, 954 So. 2d at 1004 (citing State

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

¶19.   Second, if deficient performance is shown, petitioners must show that the deficiency

prejudiced their defense, i.e., “counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Doss, 19 So. 3d at 695 (quoting Strickland,

466 U.S. at 687). To do so, they “must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Doss, 19 So. 3d at 695 (quoting Strickland, 466 U.S. at 694). Put differently, “there must be

‘[a] reasonable probability that at least one juror would have struck a different balance.’”

Isham v. State, 161 So. 3d 1076, 1089 (Miss. 2015) (quoting Davis v. State, 87 So. 3d 465,

474 (Miss. 2012)).

¶20.   Here, Gordon Eric Geiss served as lead trial counsel. Other counsel were Charles

Stewart, Dawn Stough, and Matthew Busby. Ronk argues that counsel, through Geiss, were

ineffective both at the sentencing phase and at the guilt phase.




                                              7
¶21.   Before addressing the substance of Ronk’s ineffective-assistance claim, we must first

determine if it is procedurally barred. He says it is not, because he raised ineffective

assistance on direct appeal, and we dismissed the claim without prejudice to his right to raise

it in post-conviction proceedings.

¶22.   On direct appeal, Ronk argued that trial counsel was ineffective at sentencing in four

ways: (1) “his attorney suffered from significant medical problems throughout the course of

his representation . . . , impeding his performance and perhaps his judgment”; (2) “his

attorney enlisted the assistance of an expert witness who was not equipped to perform a

mitigation study in a capital case and who presented inadmissible prejudicial evidence to the

jury”; (3) “counsel impermissibly failed to request jury instructions on statutory mitigating

factors supporting the defense’s mitigation theory”; and (4) “his attorney made a prejudicially

inadequate closing argument at the completion of the sentencing phase . . . .” Ronk, 172 So.

3d at 1130–31. We indeed dismissed his ineffective-assistance claim without prejudice to his

right to raise it properly in post-conviction proceedings. Id. at 1131.

¶23.   The State concedes the claim is not barred as to “his issues with counsel’s medical

problems; enlistment and examination of [the expert witness] during sentencing; and

counsel’s opening and closing arguments.” Yet his claim here includes another issue. In

addition to the ineffective-assistance grounds raised on direct appeal, he now adds a new

ground: he claims counsel was ineffective during the guilt phase too.

¶24.   Authority conflicts about whether the new ground should be procedurally barred.

Goodin v. State, 856 So. 2d 267, 279 (Miss. 2003), overruled on other grounds by Lynch v.



                                              8
State, 951 So. 2d 549 (Miss. 2007). In Goodin, Goodin filed an application for leave to seek

post-conviction relief from his capital-murder conviction and death sentence. Goodin,

856 So. 2d at 269. On direct appeal, he had argued that trial counsel was ineffective for one

reason. Id. at 278. We addressed the claim and held it lacked merit. Id. at 278 (citing Goodin

v. State, 787 So. 2d 639, 652 (Miss. 2001)). In his application, Goodin reasserted ineffective

assistance on new grounds. Goodin, 856 So. 2d at 281–82. Citing Lockett v. State,

614 So. 2d 888 (Miss. 1992), the State argued he was barred from doing so. Goodin, 856 So.

2d at 279. Conversely, Goodin cited Faraga v. State, 514 So. 2d 295 (Miss. 1987). Goodin,

856 So. 2d at 279. In that case, this Court rejected Faraga’s ineffective-assistance claims on

direct appeal, but later granted him leave to seek post-conviction relief for ineffective

assistance on new grounds. Goodin, 856 So. 2d at 279 (citing Faraga, 557 So. 2d at 775).

Lockett and Faraga thus represented conflicting authority on whether the procedural bar

should apply. Goodin, 856 So. 2d at 279. We proceeded to address the merits of Goodin’s

new ineffective-assistance grounds and, ultimately, granted relief on two. Id. at 281–85.

¶25.   Based on Goodin and our having dismissed Ronk’s ineffective-assistance claim

without prejudice to his right to raise it in post-conviction proceedings, we find that the claim

is not barred.

       A.        Geiss’s health problems and prescription-drug use do not constitute
                 ineffective assistance per se.

¶26.   To begin, Ronk attributes counsel’s ineffectiveness to Geiss’s poor health and

prescription-drug use. Ronk says Geiss had “numerous chronic maladies.” According to

Ronk, Geiss retired seven months after the October 4–8, 2010, trial. He died a little more

                                               9
than three years later, on January 22, 2014. The stated cause of death was coronary artery

disease; contributing conditions were renal disease, chronic obstructive pulmonary disease,

congestive heart failure, and diabetes.

¶27.   To show Geiss’s debilitating illnesses and how that affected his performance, Ronk

offers three pieces of evidence. First, he filed a supplement and exhibits with more than four

thousand pages of Geiss’s medical records. To interpret those records, he hired Dr. Sheldon

Hersh, a board-certified physician in internal medicine. Second, Ronk cites portions of the

trial record. Finally, he offers affidavits from attorneys who worked alongside Geiss.

              1.     Dr. Hersh opinion

¶28.   Dr. Hersh begins by citing the ABA’s Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases. Those guidelines, he says,

emphasize that defense counsel in capital cases must provide “high quality legal

representation.” Based on a reasonable degree of medical certainty, Dr. Hersh says that Geiss

(a) “had multiple illnesses, medications, and functional limitations”; (b) “was medically

unstable, and . . . neurologically, cognitively, and physically impaired”; and (c) “was unable

to provide ‘high quality legal representation’ required of defense counsel in a complex and

demanding capital case.”

¶29.   In discussing Geiss’s medical instability, Dr. Hersh chronicles Geiss’s extensive

medical problems:

       chronic obstructive pulmonary disease, chronic bronchitis, obstructive sleep
       apnea, obesity-hypoventilation syndrome, pulmonary hypertension, cor
       pulmonale, asthma, pulmonary fibrosis, hypertension, acute and chronic renal
       failure, uremia, secondary hyperparathyroidism, congestive heart failure,

                                             10
       diastolic heart failure, arrhythmia, insulin-dependent diabetes, diabetic
       nephropathy, diabetic peripheral neuropathy, hyperlipidemia, probable chronic
       venous insufficiency, anxiety and depression, chronic pain syndrome, gout and
       gouty arthropathy, and degenerative joint disease. Additionally, he had chronic
       back, knee, and shoulder pain, along with tremors, edema, nocturia, weakness,
       and fatigue. He walked with a cane, and he used oxygen for his breathing.

Geiss’s obesity compounded those problems.

¶30.   Dr. Hersh also discusses Geiss’s frequent hospital visits. From January 2009 to

May 2011, he was hospitalized seventeen times. About two months before Geiss’s being

appointed counsel in Ronk’s case, he had spent a week in the hospital. And from the time he

was appointed counsel up until trial, he visited the emergency room once and was

hospitalized six times, with ten-, five-, five-, five-, three-, and four-day stays. The latter

ended about a month before trial. Dr. Hersh says those “periods of incapacitation” would

have included the days before and days (or weeks) after each hospitalization.

¶31.   Dr. Hersh identifies four causes of Geiss’s neurological and cognitive impairment: (1)

“[c]hronic respiratory failure with hypercapnia, or carbon dioxide retention”; (2) “[o]pioid-

use disorder”; (3) “[c]hronic kidney failure with uremia”; and (4) “[p]olypharmacy.”

¶32.   Regarding the first cause, Dr. Hersh defines “hypercapnia” as “[a]n elevated blood

carbon dioxide level . . . [which] causes neurologic and cognitive impairment, manifested by

lethargy, drowsiness, coordination difficulty, confusion, and memory loss.” Records showed

that Geiss had “respiratory, neurologic, and cognitive symptoms” related to respiratory

failure and hypercapnia. Those symptoms included drowsiness, shortness of breath,

wheezing, inability to speak, lethargy, and lack of endurance. Despite using supplemental

oxygen, he had low blood-oxygen levels as well.

                                             11
¶33.   Dr. Hersh says multiple lung diseases—chronic obstructive pulmonary disease

(COPD), obstructive sleep apnea (OSA), and obesity-hypoventilation syndrome

(OHS)—caused Geiss’s hypercapnia. Adding to the problem, Geiss did not comply with

treatments. He neither quit smoking nor did he lose weight. And he did not use his nighttime

breathing machine regularly.

¶34.   Dr. Hersh identified a second purported cause of Geiss’s neurological and cognitive

impairment: opioid-use disorder. To be diagnosed with that disorder, the Diagnostic and

Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), requires that the person have

at least two of eleven diagnostic symptoms within a twelve-month period. Dr. Hersh says

Geiss met four. According to Dr. Hersh, records showed Geiss took increasing opioid

dosages from 2009 to 2011. Using the Morphine Milligram Equivalents (MME) formula, Dr.

Hersh calculated Geiss’s daily opioid dosage at 220 MME in 2010. As perspective, Dr. Hersh

says the Centers for Disease Control and Prevention suggests that doctors “‘use extra

precautions’ when prescribing an opioid dosage of 50 MME or greater per day” and to

“‘[a]void or carefully justify’ increasing the opioid dosage to 90 MME or greater per day.”

He also cites a study showing that people “who died of opioid overdose, were prescribed an

average of 98 MME/day . . . .”

¶35.   Dr. Hersh says physicians repeatedly suggested that Geiss either decrease or stop

using opioids. But he kept using them, even as his respiratory failure and hypercapnia

worsened.




                                            12
¶36.   Dr. Hersh alleged a third cause of Geiss’s neurological and cognitive impairment:

chronic kidney disease. Dr. Hersh estimates Geiss had stage IV to stage V kidney disease.

As kidney failure worsens, he says, uremia—a “toxic buildup of waste products the kidney

can no longer excrete”—develops. Uremic symptoms include fatigue and decreased memory

and concentration.

¶37.   The final cause Dr. Hersh advances for Geiss’s neurological and cognitive impairment

is polypharmacy. He describes that as “the use of multiple medications, including over-the-

counter and herbal supplements, in a single patient.” Records showed Geiss was taking

twenty-five medications in December 2010, including three different “opioid-containing

medications.” Dr. Hersh says two of the medications were improper.

¶38.   In addition to Geiss’s neurological and cognitive impairment, Dr. Hersh says Geiss

had multiple physical ailments that decreased his strength, stamina, and concentration. Those

included shortness of breath; edema, i.e., swelling in his legs; weakness and fatigue; joint

pain; diabetic symptoms; peripheral neuropathy, i.e., painful nerve damage in his legs; and

tremors and asterixis. Geiss also had chronic pain. Sometimes he was fine; other times, he

complained of pain in the seven-to-ten range on the Visual Analog Pain Scale, which

measures pain on a scale from zero (meaning no pain) to ten (being the worst pain

imaginable). The Warren Grant Magnuson Clinic Center at the National Institutes of Health

defines the seven-to-ten range as “severe pain [that is so] disabling [that a person would be]

unable to perform [activities of daily living].”




                                              13
¶39.   The State attacks Dr. Hersh’s opinion on several grounds. In part, it challenges his

reliance on ABA guidelines and devotes much effort to showing discrepancies between the

records he reviewed and his opinion, especially the opioid-use-disorder diagnosis.

¶40.   In an affidavit accompanying Ronk’s rebuttal, Dr. Hersh responds to the State’s

critique. He concludes with a five-point summary:

       !      Reviewing contemporaneous medical records is a well-accepted and
              useful method to examine a deceased person’s medical problems.
       !      Mr. Geiss was taking too much opioid medication for his non-cancer
              pain; there was little documentation to justify this medication in the
              extensive medical records I reviewed.
       !      Just because a physician prescribes opioids, it does not mean that the
              opioids are appropriate or harmless.
       !      Mr. Geiss had multiple medical problems, which had a negative
              cumulative effect on his physical, neurologic, and cognitive abilities.
       !      Multiple medical providers stated that Mr. Geiss’[s] narcotics were
              worsening his impairments.

              2.     Trial record

¶41.   In addition to Dr. Hersh’s opinion, Ronk says the debilitating effects of Geiss’s illness

are evident throughout the record. He gives thirteen examples:

       !      At Ronk’s arraignment, attorney Lisa D. Collums “stood in” for Geiss
              because he was recovering from some illness/medical problems. The
              day before, he had been discharged from the hospital following a ten-
              day stay.
       !      At a pretrial motion hearing, the court told Geiss he could sit if he
              needed to. Geiss replied, “No. I get my medicine going and I get dry
              mouthed.”
       !      At a pretrial motion hearing, Geiss explained how some duplicate
              motions had been filed due to confusion that arose as he tried to
              coordinate filings by phone while hospitalized. Ronk cites . . . those
              duplicate motions and . . . motions signed by non-participating counsel.

                                              14
!   In record-reconstruction proceedings during voir dire, the court noted
    Geiss “ha[d] been excused for a personal reason.”
!   During voir dire examination, shortness of breath affected Geiss.
    “You’ll have to forgive me,” he said, “I get really short of breath.”
!   After the State rested, the court excused the jury. With the jury out, the
    court asked Geiss if he had anything. He answered no, but said Ronk
    needed to be told about his right to testify. The court proceeded to tell
    Ronk of that right and then granted a recess so Ronk could discuss the
    decision with counsel. Immediately after the recess, Geiss said, “I’m
    just really not having a good day. The defense, of course, has some
    motions before we get to the thing of [Ronk] testifying.” At that point,
    Geiss moved for a directed verdict. From that series of events, Ronk
    emphasizes Geiss’s statement, “I’m really not having a good day.”
!   During a jury-instruction conference, the court listed several proposed
    instructions that still had to be considered. The court then asked Geiss
    if he had any additional instructions. Geiss said, “No. I’m terribly
    confused.” The court later recessed for the evening and said the
    remaining instructions would be considered the next morning. From
    that exchange, Ronk highlights Geiss’s “terribly confused” comment.
!   During closing arguments at the guilt phase, shortness of breath
    affected Geiss. In mid sentence, he remarked, “[E]xcuse me I’m short
    of breath,” and then continued.
!   Stewart, who was second-chair counsel, handled sentencing-phase jury
    instructions even though he had not otherwise participated in that
    phase.
!   Stewart represented Ronk at the post-trial hearing on Ronk’s motion for
    new trial or judgment notwithstanding the verdict. Stewart affirmed
    Geiss was unable to attend due to illness.
!   In January 2012, as Ronk’s direct appeal was pending, the trial court
    held a hearing on several motions, including motions to correct and
    supplement the record. The court noted Geiss had been “ill for many
    years” and had retired sometime after Ronk’s trial.
!   At that same January 2012 hearing, the court, in recalling certain events
    during voir dire, noted “Geiss ha[d] been excused for a personal
    reason.”
!   At the January 2012 hearing, the court said some breaks were taken
    during trial to accommodate Geiss. “Geiss was on some medication, I


                                   15
               believe, that required him to drink water and go to the rest room [sic],”
               the court said.

               3.     Affidavits

¶42.   Finally, Ronk provides affidavits from Matthew Busby and Ramiro Orozco. Busby,

who served as an unpaid volunteer attorney for Ronk’s defense team, says Geiss was “in

extremely poor health” during pretrial and trial proceedings:

       [Geiss’s] health declined visibly, and I would not have been surprised if he had
       passed away anytime during his last two years at the Public Defender’s Office.
       He was in and out of the hospital several times. Toward the end of that time,
       I believe that Mr. Geiss was doing only routine, low-stress tasks such as
       preparing preliminary files so that he could get enough time in for disability
       retirement. He spent a significant amount of time in the office watching
       movies on DVDs.
       ....
       During the trial, Mr. Geiss’s health declined precipitously. He was often
       red-faced and winded, huffing and puffing. He had fluid on his lungs and a
       heavy cough. He was a big, heavy-set man. He often sat in a chair with his
       hands resting on a cane.
       ....
       It was difficult for Mr. Geiss to visit clients at the Harrison County Adult
       Detention Center due to his health. (Jail visits were somewhat arduous even
       for those of us in good health.) When he did visit Mr. Ronk, the meetings were
       not long.
       ....

Busby believes Geiss’s poor health contributed significantly to Geiss’s inadequate

preparation.

¶43.   Orozco, a former Harrison County Assistant Public Defender, worked with Geiss from

2006 to 2008. He says Geiss “was always ill”:

       I believe it was a serious, chronic illness, or illnesses. I do not know the exact
       nature of his maladies, but I do know he was under the treatment of a

                                              16
       physician for heart related matters and was deteriorating at the time of my
       leaving the Public Defender’s office in 2008. I was aware that Mr. Geiss
       began to be hospitalized frequently after my departure.

Orozco recalls an early experience he had serving alongside Geiss:

       A few weeks after I began working at the Public Defender’s office, [which
       would have been late 2006,] I was assigned as second chair on a murder trial.
       Mr. Geiss was first chair.
       I was able to observe Mr. Geiss and his poor health was apparent, to the point
       that on the first day of trial he showed up to the wrong court room.
       Mr. Geiss did not meet with the client until the Friday before the Monday start
       of the trial and now that I have been practicing for several years I am of the
       opinion that his performance was substandard.
       On the first morning of the trial, at about 9:15, Mr. Geiss still had not appeared
       in the courtroom, keeping everyone waiting. I went to look for him. I found
       him sitting in an empty courtroom. No one else was in that room. He did not
       seem to realize that he was in the wrong room. He looked ill.
       Mr. Geiss called no witnesses, he failed to make objections and made
       inappropriate comments during his closing argument.
       I believe that Mr. Geiss’[s] health issues had a detrimental effect in his ability
       to effectively prepare, present and defend matters for trial. His lack of
       awareness, stamina[,] and mental clarity were always at issue.

¶44.   Altogether, Ronk argues that Dr. Hersh’s opinion, the trial record, and Busby’s and

Orozco’s affidavits show Geiss’s health problems and prescription-drug use caused counsel

to be ineffective. Busby adds “there was no fully functional leader” for the defense team. “No

one was calling the shots or directing defense team members what to do,” he says. Ronk says

that conflicts with ABA guidelines, which say “[l]ead counsel bears overall responsibility for

the performance of the defense team, and should allocate, direct, and supervise its work in

accordance with these Guidelines and professional standards.” Am. Bar Ass’n, Guidelines

for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 10.4 B,


                                              17
31 Hofstra L. Rev. 913, 999 (2003), https://bit.ly/2OpruRD. He concludes, “it is difficult—if

not impossible—to imagine someone in Mr. Geiss’s condition being able to be effective [as

lead counsel].”

¶45.   Ronk likens his case to Edge v. State, 393 So. 2d 1337 (Miss. 1981), and Thornton

v. State, 369 So. 2d 505 (Miss. 1979)—two noncapital cases in which he says this Court

reversed convictions when counsel was ineffective due to illness.

¶46.   In Edge, this Court held that Edge, who had been convicted of murder, was denied

effective assistance of counsel because the trial court had refused to grant counsel’s request

for a recess. Edge, 393 So. 2d at 1338, 1341–42. When the request was made, trial

proceedings had been ongoing for ten hours, and the State had just rested. Id. at 1341–42.

Counsel, who was on some medication, said he was “extremely fatigued” and did not think

he could “do the job adequately.” Id. at 1341. This Court held that denying a recess deprived

Edge his right to effective assistance because the trial court, over counsel’s objection, had

pushed counsel beyond his physical limits at a crucial stage of trial. Id. at 1342.

¶47.   Ronk says Geiss’s performance was like counsel’s performance in Edge: Both could

not adequately perform, had decreased mental alertness, and were medicated and fatigued.

It is true that Geiss never sought a recess or a continuance. But instead, he simply let other

counsel fill in. By doing so, he failed to fulfill his duties as lead counsel. Ronk contends

Geiss’s assistance was even less effective than what was deemed reversible in Edge.

¶48.   In Thornton, this Court held that Thornton, who had been charged with murder but

convicted of manslaughter, was denied effective assistance when counsel had to be



                                             18
hospitalized after the trial court denied a motion for recess and continued trial late into the

night. Thornton, 369 So. 2d at 505–07. In that case, counsel moved for a recess after the

State rested at about 6:00 p.m. Id. at 506. Counsel said hours of additional witnesses, jury

instructions, and closing arguments remained. Id. Furthermore, two of the defense attorneys

were around seventy years old and were “very tired and exhausted.” Id. The trial court denied

the motion, and trial proceeded past 10:00 p.m. Id. at 506. Then, during closing arguments,

one of the elderly attorneys began acting strange, became disoriented, and had to be rushed

to the hospital. Id. This Court held that, under those circumstances, extending trial had been

unreasonable and had deprived Thornton of effective assistance. Id. at 507.

¶49.   Ronk admits Thornton differs in some respects, but he insists that Geiss’s

“neurological, cognitive, and physical impairments were more severe and more chronic” than

counsel’s impairments in that case.

¶50.   In addition to Edge and Thornton, Ronk likens his case to Nance v. Ozmint, 626

S.E.2d 878 (S. C. 2006). In Nance, a capital case, the Supreme Court of South Carolina held

that post-conviction relief was warranted because trial counsel had “failed to act as an

adversary to the prosecution, but instead helped to reinforce the case against his client.”

Nance, 626 S.E.2d at 878, 883. In that case, lead counsel had numerous illnesses

(pneumonia, gout, ulcers, diabetes, alcoholism, and congestive heart failure) and was on

several medications (Valium, Lopressor, Isocet, and Tenormin), which caused memory

impairment, sleep deprivation, and sedation. Id. at 881. Lead counsel and co-counsel, who

had been practicing law for eighteen months, interviewed only the petitioner’s mother,



                                              19
neglected to investigate his background, failed to seek prison records, and gave hospital

records to their expert psychologist only a few hours before trial. Id. At the guilt phase,

counsel’s presentation “consisted of testimony of a corrections officer concerning the only

incident of misconduct that [the] [p]etitioner committed while incarcerated; an opinion by

an uninformed psychiatrist who was not qualified as an expert; and unprepared testimony of

[the] [p]etitioner’s sister about [the] [p]etitioner’s oddities as a child.” Id. at 881–82. At

sentencing, counsel’s brief mitigation presentation consisted of waiving an opening

statement, incorporating defense testimony from the guilt phase, offering a corrections

officer who testified about the petitioner’s prescription medications, and giving a closing

argument in which counsel refused to plead for the petitioner’s life and referred to him as a

“sick” man who had done “sick things.” Id. at 882. The court deemed counsel’s performance

a “classic” ineffectiveness case under United States v. Cronic, 466 U.S. 648, 104 S. Ct.

2039, 80 L. Ed. 2d 657 (1984). Id. The Cronic Court had identified three situations in which

prejudice is presumed: (1) “when the defendant is completely denied counsel ‘at a critical

stage of his trial’”; (2) “if there has been a constructive denial of counsel,” i.e., counsel

“‘entirely fails to subject the prosecution’s case to meaningful adversarial testing,’ thus

making ‘the adversary process itself presumptively unreliable’”; and (3) “when although

counsel is available to assist the accused during trial, the likelihood that any lawyer, even a

fully competent one, could provide effective assistance is so small that a presumption of

prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 880

(quoting Cronic, 466 U.S. at 659). The court reasoned that Nance fit Cronic’s very rare



                                              20
second scenario for eight reasons, with lead counsel’s “ill health and heavy medication”

among them. Id. at 882–83 (citation omitted).

¶51.   The State, on the other hand, says illness alone is insufficient. It insists that Geiss’s

health is not the issue: the issue is what, if any, effect his health had on Ronk’s trial. As

support, it cites Berry v. King, 765 F.2d 451 (5th Cir. 1985), and Hodges v. State, 949 So.

2d 706 (Miss. 2006). In Berry, the United States Court of Appeals for the Fifth Circuit said

that, under Strickland, “the fact that an attorney used drugs is not, in and of itself, relevant

to an ineffective assistance claim.” Berry, 765 F.2d at 454 (emphasis in original). “The

critical inquiry,” rather, “is whether, for whatever reason, counsel’s performance was

deficient and whether that deficiency prejudiced the defendant.” Id. Hodges involved a

death-penalty post-conviction proceeding. Hodges, 949 So. 2d at 709–10. Hodges argued,

in part, that counsel was ineffective due to inexperience, mental illness, and drug use. Id. at

721. We held that while illness and drug use may have explained some of counsel’s behavior,

those factors did not prove he was ineffective. See id. at 721. Notably, the United States

District Court for the Northern District of Mississippi later granted Hodges habeas corpus

relief, in part, on his ineffective-assistance claim based on counsel’s inexperience and mental

illness and the cumulative effect of other numerous errors. Hodges v. Epps, No.

1:07CV66-MPM, 2010 WL 3655851, at **38–39 (N.D. Miss. Sept. 13, 2010), aff’d in part,

648 F.3d 283 (5th Cir. 2011).

¶52.   The State adds that when a defendant is represented by multiple attorneys, as here, an

ineffective-assistance claim is hard to mount. United States v. Dunfee, 821 F.3d 120, 128



                                              21
(1st Cir. 2016) (citing Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st Cir. 1990));

Havard v. State, 988 So. 2d 322, 345–46 (Miss. 2008) (rejecting Havard’s claim that one of

his attorneys was incompetent due, in part, to insufficient evidence and the presence of co-

counsel).

¶53.   While Geiss’s illnesses and prescription-drug use are troubling, the weight of

authority says illness and drug use alone do not render counsel ineffective. The critical

inquiry is (1) whether counsel’s performance was deficient and, if so, (2) whether the

deficiency prejudiced Ronk. Berry, 765 F.2d at 454; see also Smith v. Ylst, 826 F.2d 872,

876 (9th Cir. 1987) (holding mental illness is not ineffective assistance per se); Burnett v.

Collins, 982 F.2d 922, 930 (5th Cir. 1993) (holding attorney’s alcohol abuse alone did not

render him ineffective); Buckelew v. United States, 575 F.2d 515, 520–21 (5th Cir. 1978)

(rejecting the appellants’ ineffective-assistance claim based on counsel’s age and poor health

because no prejudice was shown); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002)

(citations omitted) (“In order to assert a claim based on ineffective assistance due to illness,

a defendant must point to specific errors or omissions in his courtroom behavior and conduct

at trial that were a product of the attorney’s illness.”). Ronk does not argue that this is a

Cronic case so that prejudice should be presumed. And even if he did, Cronic’s presumed-

prejudice standard would not apply here. See Florida v. Nixon, 543 U.S. 175, 190, 125 S.

Ct. 551, 562, 160 L. Ed. 2d 565 (2004) (describing Cronic as a “narrow exception” to

Strickland); United States v. Gurolla, 333 F.3d 944, 958 (9th Cir. 2003) (stating that




                                              22
Strickland, not Cronic, would apply to a claim that counsel was ineffective due to serious

illness throughout trial).

¶54.   Neither Edge, Thornton, nor Nance apply here. In Edge and Thornton, specific

incidences at trial occurred in which the court unreasonably refused to accommodate

attorneys and pushed them beyond their physical limits. No such incident is apparent here.

And in Nance, lead counsel’s illness and heavy medication were among many factors that

caused counsel to be ineffective. The “most compelling” factor in that case was not lead

counsel’s illness and heavy medication, but counsel’s abandoning the defense role and

actually helping bolster the case against the client. Nance, 626 S.E.2d at 883.

¶55.   As for Busby’s assertion that “no fully functional leader” was present, some evidence

to the contrary was presented. The record shows that, even when he was hospitalized, Geiss

tried to coordinate filing motions. And it supports that a coordinated team effort took place

at trial. Geiss, for the most part, handled motions; voir dire; opening statements and closing

arguments at both the guilt and sentencing phases; cross-examination of two witnesses during

the guilt phase; jury instructions at the guilt phase; and direct examination of the lone witness

at the sentencing phase. Stewart cross-examined four witnesses at the guilt phase and handled

jury instructions at the penalty phase. Stough and Busby each cross-examined three witnesses

at the guilt phase.

¶56.   At any rate, even if a fully functional leader was lacking, Ronk still must show

prejudice.

       B.     Counsel was not ineffective at sentencing.



                                               23
¶57.   Ronk argues counsel was ineffective at sentencing in four ways. First, he says counsel

failed to conduct a constitutionally adequate mitigation investigation. Second, he claims

counsel “opened the door” to damaging, prejudicial evidence in examining psychologist

Dr. Beverly Smallwood. Third, he asserts counsel failed to discover, put on, and properly

explain Ronk’s mental disorders. Finally, he argues counsel’s opening statement and closing

argument constituted ineffective assistance.

              1.      Counsel’s mitigation investigation arguably was deficient; however,
                      Ronk fails to make a substantial showing of prejudice.

¶58.   In capital cases, counsel must investigate a defendant’s background. Wiggins, 539

U.S. at 522 (stating counsel in Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 1515,

146 L. Ed. 2d 389 (2000), did not “fulfill[] their obligation to conduct a thorough

investigation of the defendant’s background”); see also Harries v. Bell, 417 F.3d 631, 637

(6th Cir. 2005) (citations omitted) (“Counsel’s constitutional duty to investigate a

defendant’s background in preparation for the sentencing phase of a capital trial is

‘well-established.’”). A thorough investigation renders strategic choices “virtually

unchallengeable.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690–91). At the

same time, counsel are “not require[d] . . . to investigate every conceivable line of mitigating

evidence no matter how unlikely the effort would be to assist the defendant at sentencing.”

Wiggins, 539 U.S. at 533. Reasonableness, rather, is the standard:

       [S]trategic choices made after less than complete investigation are reasonable
       precisely to the extent that reasonable professional judgments support the
       limitations on investigation. In other words, counsel has a duty to make
       reasonable investigations or to make a reasonable decision that makes
       particular investigations unnecessary. In any ineffectiveness case, a particular

                                               24
       decision not to investigate must be directly assessed for reasonableness in all
       the circumstances, applying a heavy measure of deference to counsel’s
       judgments.

Id. at 521–22 (quoting Strickland, 466 U.S. at 690–91). The assessment, then, includes not

only what counsel discovered, but also whether that evidence would have led a reasonable

attorney to investigate further. Wiggins, 539 U.S. at 527.

¶59.   If counsel’s investigation is deemed deficient, prejudice is assessed by “reweigh[ing]

the evidence in aggravation against the totality of available mitigating evidence.” Id. at 534.

No prejudice exists if “the new mitigating evidence ‘would barely have altered the sentencing

profile presented’ to the decisionmaker . . . .” Chamberlin v. State, 55 So. 3d 1046, 1054

(Miss. 2010) (quoting Sears v. Upton, 561 U.S. 945, 954, 130 S. Ct. 3259, 3266, 177 L. Ed.

2d 1025 (2010)); see also Buckner v. Polk, 453 F.3d 195, 207 (4th Cir. 2006) (holding that

the new evidence, at best, merely “round[ed] out the details of a personal history already

presented to the jury”).

¶60.   Ronk cites Williams, Wiggins, and Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456,

162 L. Ed. 2d 360 (2005), as the seminal cases concerning constitutionally adequate

mitigation investigations.

¶61.   In Williams, the Supreme Court held that counsel was ineffective for failing to

investigate and present substantial mitigating evidence. Williams, 529 U.S. at 395–99. In that

case, at sentencing, the prosecution produced evidence of Williams’s prior violent crimes and

called experts who said a “high probability” existed that he posed a serious, continuing threat

to society. Id. at 368–69. Defense counsel, in turn, produced three witnesses and a taped



                                              25
excerpt from a psychiatrist’s statement. Id. at 369. The three witnesses described Williams

as a “nice boy” and nonviolent; the psychiatrist’s statement simply showed that during a prior

robbery, Williams had removed bullets from a gun so no one would be injured. Id. Defense

counsel also emphasized that Williams had turned himself in (which enabled police to solve

several crimes), cooperated, and expressed remorse. Id. at 369, 398. The Supreme Court said

defense counsel’s performance fell short of professional standards by not “fulfill[ing] their

obligation to conduct a thorough investigation of [Williams’s] background. Id. at 396 (citing

1 ABA Standards for Criminal Justice 4–4.1 cmt. (2d ed. 1980)). Had counsel done so, they

would have “uncovered extensive records graphically describing Williams’[s] nightmarish

childhood.” Id. at 395. From those records, the jury

       would have learned that Williams’[s] parents had been imprisoned for the
       criminal neglect of Williams and his siblings, that Williams had been severely
       and repeatedly beaten by his father, that he had been committed to the custody
       of the social services bureau for two years during his parents’ incarceration
       (including one stint in an abusive foster home), and then, after his parents were
       released from prison, had been returned to his parents’ custody.

Id. (internal footnote omitted). In addition, defense counsel failed to (a) “introduce available

evidence that Williams was ‘borderline mentally retarded’ and did not advance beyond sixth

grade in school”; (b) seek prison records that showed he had received commendations in

prison; (c) seek favorable testimony from prison officials; and (d) return a phone call from

someone who had offered to testify about Williams’s participating in a prison-ministry

program and earning a carpentry degree while in prison. Id. at 396. While not all the

additional evidence was favorable, the Supreme Court said that “the entire postconviction

record, viewed as a whole and cumulative of mitigation evidence presented originally, raised

                                              26
‘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.” Id. at 396, 398–99.

¶62.   In Wiggins, likewise, the Supreme Court held that counsel was ineffective for failing

to investigate Wiggins’s background and to present mitigating evidence of his unfortunate

life history. Wiggins, 539 U.S. at 514, 538. In that case, counsel did some investigation. Id.

at 523. First, counsel hired a psychologist who found that Wiggins “had an IQ of 79, had

difficulty coping with demanding situations, and exhibited features of a personality disorder.”

Id. (citation omitted). The psychologist’s reports said nothing, however, about his life

history. Id. Second, counsel had a one-page “‘personal history’ noting [Wiggins’s] ‘misery

as a youth,’ quoting his description of his own background as ‘disgusting,’ and observing that

he spent most of his life in foster care.” Id. Finally, counsel had social-service records

documenting his various foster-care placements. Id. The latter showed (a) his mother was a

chronic alcoholic; (b) he displayed emotional difficulties in foster care; (c) he frequently

missed school for long periods of time; and (d) “on at least one occasion, his mother left him

and his siblings alone for days without food.” Id. at 525. Instead of investigating further,

counsel chose to emphasize that Wiggins was not directly responsible for the murder and

presented no evidence of his life history. Id. at 515–18. The Supreme Court said counsel’s

investigation was unreasonable. Id. at 528–29. Counsel’s limited investigation, the Court

said, fell short of both local and ABA standards because they neither prepared a social-

history report nor did they try to discover all reasonably available mitigating evidence. Id.



                                              27
at 524. “[C]ounsel abandoned their investigation of [Wiggins’s] background after having

acquired only rudimentary knowledge of his history from a narrow set of sources,” the Court

continued. Id. (citations omitted). Counsel had “uncovered no evidence in their investigation

to suggest that a mitigation case, in its own right, would have been counterproductive, or that

further investigation would have been fruitless.” Id. at 525 (citations omitted). To the

contrary, further investigation would have revealed Wiggins’s “bleak life history,” which

included physical and sexual abuse. Id. at 516–17. What is more, sentencing proceedings

suggested that counsel’s “failure to investigate thoroughly resulted from inattention, not

reasoned strategic judgment.” Id. at 526. Counsel put on a “halfhearted mitigation case,”

telling the trial court that they were prepared to present mitigating evidence and even asking

the jury to consider “who [Wiggins] is” and his hard life, but never following up with

specifics about his history. Id. In sum, the Supreme Court concluded that if the jury had

heard all the mitigating evidence, it may have assessed Wiggins’s moral culpability

differently. Id. at 538. (citation omitted).

¶63.   Finally, in Rompilla the Supreme Court held that even if a capital defendant and his

or her family members suggest no mitigating evidence exists, counsel still must “make

reasonable efforts to obtain and review material that counsel knows the prosecution will

probably rely on as evidence of aggravation at the sentencing phase of trial.” Rompilla, 545

U.S. at 377. In that case, counsel interviewed Rompilla, who was uninterested and even

“actively obstructive” at times, and family members. Id. at 381. They also had three mental-

health experts evaluate him. Id. at 382. But counsel did not examine Rompilla’s school



                                               28
records or records of his prior convictions. Id. Nor did they follow up on evidence of possible

alcohol dependance. Id. The Supreme Court said, at the very least, counsel were deficient for

not examining Rompilla’s prior-conviction records when they knew the prosecution intended

to use his prior felony convictions as an aggravator. Id. at 383, 389. Had counsel examined

those records, they would have found “a range of mitigation leads.” Id. at 390. The records

showed that Rompilla (a) was raised in a “slum environment”; (b) quit school at age sixteen;

(c) was in and out of jail; (d) abused alcohol; (e) showed signs of schizophrenia and other

disorders; (f) and had a third-grade cognition level. Id. at 390–91. And with further

investigation, counsel presumably would have uncovered that (a) his parents were severe

alcoholics; (b) his mom drank during pregnancy; (c) his dad severely beat his mom and

bragged about cheating on her; (d) his parents fought violently; (e) his dad abused him

verbally and physically; (f) he was forced to sleep in an unheated attic; and (g) he was not

given clothes. Id. at 391–92. In addition, mental-health experts retained by post-conviction

counsel found that he suffered from organic brain damage, could not appreciate the

criminality of his conduct, and had an IQ in the mentally retarded range. Id. at 392–93. All

that mitigation evidence surpassed the “few naked pleas for mercy” that constituted counsel’s

mitigation case. Id. at 393. And had the jury heard such evidence, the likelihood of a

different result was “‘sufficient to undermine confidence in the outcome’ actually reached

at sentencing.” Id. (citing Strickland, 466 U.S. at 694).

¶64.   We have said that “at a minimum, counsel has a duty to interview potential witnesses

and to make independent investigation of the facts and circumstances of the case.” Ross,



                                              29
954 So. 2d at 1005 (quoting Ferguson v. State, 507 So. 2d 94, 96 (Miss. 1987)); Doss, 19 So.

3d at 698 (quoting Doss v. State, 882 So. 2d 176, 189 (Miss. 2004) (“Counsel’s minimum

duty is to interview potential witnesses and to make an independent investigation of the facts

and circumstances of the case.”).

¶65.   In Ross, we held that counsel was ineffective at sentencing for two reasons. Ross,

954 So. 2d at 1006. First, counsel failed to investigate potential psychological problems

simply because Ross had said he was not “crazy.” Id. Yet his life history included physical

and sexual abuse; possible alcoholism; hallucinations; his sister’s murder; and the tragic

deaths of his ex-wife and four children in a car accident. Id. While the jury heard much of

that information, counsel provided no expert to explain how those experiences had affected

him psychologically. Id. Second—and “[f]ar more problematic”—was counsel’s failure to

adequately investigate Ross’s record as an inmate. Id. For mitigation, counsel had

emphasized Ross’s good character, especially his reputation as a “good prisoner.” Id. at

1005. That evidence, however, opened the door for the State to introduce Ross’s bad acts

while incarcerated: he had been moved to a higher security facility for possessing a hacksaw

and trying to escape, and he had been punished for making alcoholic beverages in his cell.

Id. at 1005–06. Those bad acts cast him “as unrepentant, a habitual criminal, and a danger

to society.” Id. at 1006. Given the severity of the charge, we said counsel’s deficiencies

undermined our faith in the sentence. Id.

¶66.   Similarly in Doss, we held counsel was ineffective at sentencing. Doss, 19 So. 3d at

698, 708. There, we said that if counsel had reviewed records and followed up with potential



                                             30
witnesses, he would have uncovered mitigating evidence almost identical to that in Rompilla.

Id. at 708. Records showed that Doss (a) drank alcohol regularly and had started drinking at

age eleven; (b) had tried other drugs; (c) attended special-education classes and did poorly

in school; (d) had a low IQ; (e) had family and legal issues; and (f) showed signs of

psychological disorders. Id. at 707. In addition, counsel did not elicit testimony from Doss’s

mother about his abusive, poverty-stricken home environment. Id. at 704, 707. “[T]aken as

a whole,” the Court said, “[the mitigation evidence discovered by post-conviction counsel]

might well have influenced the jury’s appraisal of Doss’[s] culpability, and the likelihood of

a different result if the evidence had gone in [was] sufficient to undermine confidence in the

outcome.” Id. at 708 (quoting Rompilla, 545 U.S. at 393).

¶67.   Here, Ronk’s mitigation case consisted of the following.

¶68.   Pretrial, he moved for Dr. Smallwood to conduct a psychiatric/psychological

evaluation “to determine whether he knew right from wrong at the time of the alleged

incident, whether he [was] competent to assist counsel in the trial of his case and[] whether

or not a psychological evaluation would reveal any mitigating circumstances.” The trial court

granted the motion, authorizing counsel to hire Dr. Smallwood. The order permitted

Dr. Smallwood, in part, “to prepare a mitigation study.” At a motions hearing weeks later,

however, Geiss explained he was only requesting a psychological evaluation at that time. “I

don’t know if there is anything that [Dr. Smallwood] can provide to us that would have any

particular use by way of mitigation,” he said. “If that arises during her psychological

evaluation we will instruct her to proceed.”



                                               31
¶69.   At sentencing, the State reintroduced all testimony and evidence from the guilt phase

and offered a sentencing order showing Ronk’s prior guilty-plea conviction for grand

larceny. Ronk called one witness: Dr. Smallwood. Her twenty-five page psychological

evaluation was entered into evidence, and she testified as follows.

¶70.   Dr. Smallwood evaluated Ronk to determine (1) whether he knew right from wrong

when the crime occurred; (2) whether he was competent to stand trial; and (3) his level of

intelligence. She found that (1) he had mental disorders but knew right from wrong; (2) he

was competent to stand trial; and (3) his IQ was 114, in the “high average category.” Early

on, she explained she had not done a full mitigation study. “That’s outside of the scope of

my practice,” she said. Still, she said some information she had uncovered was relevant for

sentencing.

¶71.   Ronk was adopted at three days old. His adoption caused resentment; he felt he was

a mistake, and he tended to direct anger toward his adoptive parents. He threatened them and

would hit or “mess up” walls.

¶72.   Between ages ten and thirteen, he began abusing alcohol, marijuana, and eventually

methamphetamine. Alcohol and drug abuse, Dr. Smallwood said, likely enhanced his

behavioral problems over the years.

¶73.   According to Ronk’s parents, with whom Dr. Smallwood spoke, Ronk began having

“significant problems” at age ten. Throughout his life, he had numerous hospital stays for

mental problems. In one stay, he was diagnosed with bipolar disorder, formerly called manic

depression, and attention deficit with hyperactivity disorder (ADHD). Dr. Smallwood said



                                            32
his symptoms, which included several suicide attempts, were consistent with those disorders.

All his life, he had exhibited “impulsive behavior, aggressive and threatening kind of

behavior, not thinking before he made decisions”—“[h]allmarks of both [bipolar] disorder

and ADHD.” She defined bipolar disorder as “a serious mental disorder that is based on an

imbalance in brain chemistry in which the person has severe depression at times and then

may be manic at times.” It is uncommon, she said, and requires “a very specific set of

criteria.” “[O]nly .4 percent to 1.6 percent of the population is, in fact, bipolar,” she

explained.

¶74.    In addition to bipolar disorder and ADHD, Dr. Smallwood said Ronk appeared to have

a “conduct disorder” in his childhood. She explained that it was not just “a little bad

behavior” but “a repetitive and persistent pattern of behavior in which the basic rights of

others or age appropriate norms are violated.” “It can involve aggression to people or

animals, it could involve destruction of property, deceitfulness and threat of serious violation

of rules . . . ,” she said.

¶75.    She conveyed that Ronk’s “[v]ery severe problems from many, many, many years

back” are still evident. His bipolar disorder and ADHD left him prone to make wrong

decisions and, compared to the average person, made it much more difficult for him to

control his impulsive behavior. That said, Ronk’s conditions did not render him unable to

control his behavior. “[M]y evaluation did find that [Ronk] did not have a mental disorder

that overpowered his will to the point that he did not know right from wrong,” she said.




                                              33
¶76.   On cross-examination, Dr. Smallwood added antisocial personality disorder as a

diagnosis. Symptoms Ronk exhibited were “failure to conform to social norms about lawful

behavior”; “deceitfulness and lying behavior”; “impulsivity”; “failure to plan ahead”;

“irritability and aggressiveness”; “reckless disregard for the safety of himself or others”;

“consistent irresponsibility”; and “often rationaliz[ing]his behavior.” When asked if

antisocial personality disorder is a synonym for “sociopathic,” she explained that

“sociopathic” is “[s]ometimes . . . kind of a lay term that’s used when we say antisocial

personalities.”

¶77.   As part of her evaluation, she tested whether Ronk was malingering, i.e., exaggerating

or faking psychological symptoms. Of the eight malingering subtests she administered, he

scored in the “honest range” for two, “probably feigning” in two, and indeterminate in the

other four. In short, he was not completely honest with her. She knew that, though, and

acknowledged the fact on cross-examination. But neither his exaggeration nor his lying

altered her opinion. “The diagnosis was made early in his life, and it doesn’t change my

observations of whether he met the criteria,” she said.

¶78.   Her report provided more details.

¶79.   The initial background information said that Ronk was born in Flowood, Mississippi.

A New Jersey couple, Susan and Robert Ronk, adopted him. His relationship with them “has

been strained most of his life, as he has ‘been a drug and alcohol addict since ten.’” Years

before, he had learned from his biological mother that he “was born as the result of a rape.”




                                             34
¶80.   Ronk is married but had separated from his wife. He attributed their separation to her

addiction. They have no children together.

¶81.   Educationally, Ronk dropped out of school in twelfth grade. He claimed he scored a

“genius IQ” in fifth grade, but school bored him. He hardly went and did not do his

homework. At age eighteen, his parents kicked him out of the house “because of his

addiction.”

¶82.   Occupationally, Ronk worked various jobs throughout his life. He bartended, assisted

a veterinarian, led praise and worship at a church, managed clothing stores, waited tables,

worked construction, landscaped, sold cars, changed tires and aligned brakes, climbed poles

for a cable company, and owned a marketing firm. He claimed to have built the marketing

firm and sold it for $150,000 in just seven months. Otherwise, he never kept a job more than

six months because he would get restless and bored.

¶83.   Ronk’s legal history included prior convictions for first-degree theft of property and

grand larceny. At the time of Craite’s murder, he had been on house arrest for grand larceny.

¶84.   Medically, Ronk reported an “extensive history of mental health problems and mental

health treatment.” Over the years, he was treated in sixteen different hospitals across the

country for “being severely depressed, h[ear]ing voices telling him to hurt himself or others,

and chemical addictions.” During one stay, he reported having seizures and blacking out

whenever he lost his temper. Five times he went to rehabilitation programs, including a two-

year stint at one point. He would do okay for a while, but then he would relapse.




                                             35
¶85.   Ronk either exhibited or spoke about several mental-health issues. He showed

symptoms of depression, e.g., low mood, weight gain, hypersomnia, psychomotor agitation,

fatigue, feelings of worthlessness, irritability, and concentration problems. He also had a

history of suicide attempts. And although he did not report having been diagnosed as bipolar,

he had symptoms that “could be indicative of episodes of mania” or of amphetamine use:

       [Ronk] reported that he has sometimes not slept for four or five days at a time.
       During those periods, he feels that “no one can touch me. I can do anything.”
       He does not believe he will get in trouble. He is talkative and has pressured
       speech. He reports flight of ideas and racing thoughts “99% of the time, even
       when I’m depressed.” He endorses distractibility and psychomotor agitation.
       He reported that he was a “cutter” for a while, revealing the scars on his arms
       and chest.

Ronk also struggled with anxiety, panic attacks, and auditory hallucinations. He claimed he

had heard voices saying, “They are out to get you. Kill them before they kill you. Those

people don’t like you. Kill yourself. No one cares. All will be happier. You can rob that

house and get away with it. No one will know.” Even so, Dr. Smallwood saw no sign of

psychosis during her examination.

¶86.   In addition, Ronk had “a long substance abuse history.” At age ten, he stole beer, got

drunk, and tried marijuana. “When I smoked weed, I felt normal. I didn’t hear voices any

more,” he said, “I started smoking every day. I stole from my parents to support the habit.”

Through the years, his drug use progressed. At age fourteen, he started taking acid; at sixteen,

cocaine; at eighteen, heroin; and at twenty, methamphetamine. Methamphetamine became

his drug of choice until 2005. Since then, he has only drunk alcohol. He claimed he drank “a

minimum of a quart of Jaegermeister a day, a maximum of a gallon.”



                                              36
¶87.   When asked about past traumas, Ronk identified four. First, his adopted parents said

they wished he had never been born. Later in the report, he gave some context:

       My parents put me in counseling in fourth grade because my grades were
       slipping. They told me that the biggest mistake they made was adopting me,
       and they wish I wasn’t born. I started rebelling. I was adopted at three days
       old. I was a straight A student, and I guess I caught them on a bad day because
       m[y] breaking a dish pushed them over the edge, and they said that.

Second, he learned from his biological mother that he was conceived as a result of rape.

Since learning that, he has felt like a mistake. That knowledge led him to attempt suicide.

Third, in fourth grade he was put in accelerated classes, which caused his friends to think he

was a nerd and to stop talking to him. Finally, he cited his marriage’s demise. After he and

his wife separated, he tried to hang himself.

¶88.   When Dr. Smallwood asked Ronk a series of questions about his psychological

history, he responded as follows.

¶89.   In third grade, he started smoking. So his parents put him in counseling. There, he was

diagnosed with ADHD. He refused to take his medication, however, because “they wanted

me to [take it].”

¶90.   In fourth grade, his parents put him in counseling again because his grades were

slipping. Altogether, he spent eight years in counseling. He alleged that on one occasion, a

counselor picked him up by the throat.

¶91.   At any rate, Ronk said he “wasn’t doing good in school, [was] very rebellious, and

still smoking.” At age sixteen, following a fight with his mom, his parents sent him to a




                                                37
psychiatric facility for two-and-a-half weeks. There, he was diagnosed with anger problems,

mild seizures, and ADHD. He received medication, but nothing changed.

¶92.    At some point, Ronk went to a military school. There, “[he] did whatever [he]

wanted”—smoked weed, made acid, snuck out, fought, and got drunk.

¶93.    In his first senior year, he and some friends made bomb threats, called fire drills, and

started fires to avoid exams. During his second senior year, he got a job at a retail store and

decided to quit school.

¶94.    After quitting school, he attempted suicide by overdosing on pills. That led to a three-

week stay in intensive care, followed by several weeks at a country-club-like facility in New

York.

¶95.    When he got out, he returned home. Eventually, though, his parents kicked him out,

and he started living on the streets. Around that time he got arrested for the first time for

making “terroristic threats” against his mother. They had gotten in a fight, and she alleged

he had threatened to kill her. The charges were later dismissed.

¶96.    At age eighteen, Ronk began working in construction, followed by stints as a car

salesman, auto mechanic, and cable utility pole worker. During that time, he was drinking

and smoking marijuana. He was also introduced to “X (Ecstasy), meth, Special K, GHB.”

¶97.    He ended up living under a bridge. At that point, he called his parents for help. They

got him in a faith-based rehabilitation program. He loved it. “I found God. I was introduced

to music for the first time, and I enjoyed being there. I wish I could go back,” he said. After

seven months, however, he was kicked out for having a relationship with a girl in the



                                              38
program. The discharge put him in violation of his probation for a shoplifting conviction, so

he spent forty-five days in jail.

¶98.   Upon being released from jail, Ronk again called his parents. They found him a job

at Old Navy, but he quit after about nine months because “they wouldn’t give [him] a raise

or benefits.” From there, he worked at another retail clothing store and then bartended for

about a year and a half. “The profits,” he said, “were either going down my throat or up my

nose. I was actually buying cocaine from my manager.”

¶99.   Ronk claimed he witnessed the September 11, 2001, terrorist attacks in New York

City and helped remove dozens of bodies from the debris. “I still have nightmares about the

smell of burning flesh. I worked doing that for about [a] month,” he said.

¶100. As his drinking increased, he realized he needed help and checked himself back into

the same faith-based program that had kicked him out. Six months later, he got mad and left.

¶101. He returned to heavy drinking and methamphetamine use. He tried rehabilitation again

in December 2002 and managed to get off methamphetamine. Eventually, he went back home

and tried to make amends with his parents. He lived in a homeless shelter, but saw them

every week and ate dinner and attended church with them.

¶102. During that period, Ronk reconnected with his biological mother, whom he had not

seen since he was a teenager. That experience proved disappointing. “She showed me the

hospital where I was born and asked me to leave because I was the result of a rape, and it was

too many bad memories,” he said. After leaving his biological mom, he “felt like a mistake”

and tried to kill himself.



                                             39
¶103. After that, Ronk continued working, drinking, and trying to live life even though he

did not want to. Through it all, he experienced “a lot” of failed relationships.

¶104. Ronk said he entered his last rehabilitation program in 2005. There, he met and

married his wife. After only three months, she started smoking crack and cheating on him,

and their relationship ended. That led him to try to hang himself. He sought help and was

diagnosed with “[s]ituational [d]epression.” Eventually, he managed to get a job and checked

himself into a halfway house in Mobile, Alabama.

¶105. While in Mobile, he sought to reconcile with his parents. He moved back in with them

and got a job. He was doing well when a job opportunity arose in Mobile. He moved back

to Mobile for the job, but did not get it. So he started waiting tables and tried, unsuccessfully,

to save his marriage.

¶106. Eventually, he returned to New Jersey at his parents’ urging. There, he waited tables

and drank heavily.

¶107. Dr. Smallwood concluded her report as follows:

       It is my opinion, to a reasonable degree of psychological certainty, that:
               a)       . . . Ronk knew right from wrong at the time of the alleged
                        crimes;
               b)       [Ronk] is competent to assist counsel in his defense;
               c)       the level of intelligence of [Ronk] is in the High Average range,
                        with a Full Scale IQ of 114.
       In addition to the above findings, it must be noted that many variables which
       may provide mitigation are reportedly found in this man’s psychological and
       medical history. However, I do not have the benefit of those medical records.
       It is highly recommended that these and other relevant records be secured and
       that collateral witnesses be interviewed. The present examination is not a
       mitigation study, which is outside the scope of my current practice.

                                               40
       ...
       With respect to the above questions posed by the [c]ourt and addressed
       in the previous section, no further evaluation is needed. However, as noted, a
       mitigation study is recommended.

¶108. Ronk argues no mitigation investigation was done. Dr. Smallwood made clear that she

did not do a mitigation study, which is outside the scope of her practice. She recommended

that one be done, however, and that did not occur. As support, Ronk attaches affidavits from

his adoptive mom, Susan; his biological mom, Jackie Burrell; and Busby. Susan says she was

unaware of any mitigation investigation. Her affidavit, alongside Burrell’s, support that

counsel did not

       !      interview Ronk’s adoptive parents about his background or seek contact
              information for his friends, teachers, church members, or other family
              members;
       !      attempt to contact mental-health professionals Ronk had seen beginning
              when he was in fifth grade;
       !      try to reach Burrell, who has lived at the same address since 1999; or
       !      seek to learn about Ronk’s biological dad.

Busby says counsel did not develop available mitigation evidence. He says he acquired

Ronk’s “voluminous” medical records at his own expense; those records are attached as an

exhibit to his affidavit. Busby says he showed them to Geiss, but Geiss simply shoved them

aside and never used them. Ronk claims those records “show a long history of trauma and

serious mental-health problems that, if they had only been put before the jury, would have

had a reasonable probability of resulting in a different outcome.”

¶109. The records attached to Busby’s affidavit concern a four-day hospital stay from late

December 2007 to early January 2008. Ronk was hospitalized after having been kicked out

                                            41
of a facility for stealing cigarettes. At the time, he was facing grand-larceny charges for

stealing music equipment from his biological sister; his adoptive parents had bailed him out.

A “Discharge Summary” notes, in part, his “chronic mental health history”; a July 2007

commitment to Whitfield; “multiple polypharmacy psychotropic medication regimens” with

compliance issues; “suicidal ideations”; “multiple suicide attempts”; depression;

homelessness; and “history of impulsivity when manic, including gambling, sexual

promiscuity, stealing, and drug abuse, primarily crystal meth, although he has been in

remission . . . since December 31, 2002.” On discharge, he was diagnosed with Axis I bipolar

disorder and polysubstance dependance and Axis II “borderline, antisocial, and narcissistic

personality traits.” Another document shows that the hospital spoke with Ronk’s adoptive

parents, who said that he had a “long history of erratic impulsive behavior” beginning in fifth

grade. They also said he had been diagnosed with “frontal lobe problems” when he was

younger and that his biological sister “is reportedly bipolar.”

¶110. In addition to the records from Busby, Ronk attaches nearly one thousand pages of

additional medical records. They show, in part, the following: drug-abuse treatment, bipolar

diagnoses, homelessness, history of mental illness, hearing voices, depression, substance

abuse, suicidal ideations, conflict with parents, multiple psychiatric hospitalizations,

personality disorder, anxiety, “depressive disorder,” “adjustment disorder,” multiple suicide

attempts,   homicidal     ideation,    schizophrenia     or   “schizoaffective     disorder,”

hallucinations/delusions, and ADHD.




                                              42
¶111. Those records include an isolated mention of child molestation. Elsewhere, however,

the records say no physical or emotional abuse was suspected. One “Progress Note”

specifically says, “[Ronk] denies any history of physical, sexual, emotional abuse or neglect.”

Moreover, Ronk says nothing in his motion about having been molested as a child. Nor is

childhood sexual abuse among the risk factors identified by Dr. James Garbarino, who

examined Ronk at post-conviction counsel’s request and whose findings are discussed below.

¶112. Another record says Ronk “apparently met a girl on-line,” visited her, and she became

pregnant. He identifies “seeing his 6[-]month[-]old daughter for the first time” among

“[p]reciptiating stressors.” Other records, however, say that he has no children, but that one

of his former girlfriends did. The possibility of his having a child is further negated by a

remark he made to Dr. Garbarino. He told Dr. Garbarino that he had always wanted to be a

father, but that he thought it was good he had not become one “because a kid shouldn’t have

a dad on death row.”

¶113. In addition to claiming counsel was ineffective for failing to investigate and obtain

or use available records, Ronk alleges counsel was ineffective for failing to hire a qualified

expert—more specifically, a mitigation specialist. He claims mitigation specialists are

“indispensable in capital cases,” and their “requirement” is well settled. As support, he cites

a law review article by a federal district court judge that, in turn, cites the 2003 ABA

Guidelines, which say, “the capital defense team should consist of at least two attorneys, an

investigator, and a ‘mitigation specialist.’” Honorable Helen G. Berrigan, The Indispensable

Role of the Mitigation Specialist in A Capital Case: A View from the Federal Bench, 36



                                              43
Hofstra L. Rev. 819, 824 (2008) (citing Am. Bar Ass’n, Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases, Guideline 4.1 Introduction,

31 Hofstra L. Rev. 913, 954–55 (2003), https://bit.ly/2OpruRD). Aside from conducting

interviews, amassing information, and culling the information into a presentable form, a

primary task for mitigation specialists is to screen for mental-health issues. Id. at 827.

¶114. Ronk attacks Dr. Smallwood’s merely recounting the contents of her report as

insufficient—the data had to be explained by a qualified expert. Williams, 529 U.S. at 399

(“[T]he entire postconviction 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.”) (emphasis added). In that respect,

he likens this case to Evans v. State, 109 So. 3d 1044 (Miss. 2013). In that case, we held that

the trial court abused its discretion in denying Evans funds to hire an expert on post-

traumatic-stress disorder (PTSD). Id. at 1045. Evans’s defense theory was that PTSD had

affected his state of mind at the time of the killing. Id. at 1048. Although a psychologist (Dr.

Smallwood, actually) had been appointed to assess Evans’s competency to stand trial, she

said she lacked the expertise to explain how PTSD affects a person’s mental state. Id. We

reasoned that, in order to present his defense theory, Evans had needed a PTSD expert who

could explain PTSD’s effects. Id. at 1048–49.

¶115. As an example of a qualified expert, Ronk offers Dr. Garbarino, a developmental

psychologist. At post-conviction counsel’s request, Dr. Garbarino interviewed Ronk for two-



                                              44
and-a-half hours. He prepared a fifteen-page affidavit explaining his findings, summarizing

them as follows:

       Ronk is best understood as a troubled child inhabiting a young man’s body.
       His troubled development appears to flow from some combination of
       temperamental vulnerabilities combined with disrupted family relationships
       linked to parental rejection. Despite the generally positive family and
       community environment provided by his adoptive parents, the unresolved
       issues of his adoption and his reaction to that adoption had a serious negative
       effect on [Ronk’s] emotional life and development. His problems with
       attachment and a resulting “emotional neediness” and oppositional and defiant
       behavior flowed from this disconnect and deteriorated in adolescence. This in
       turn led to chronic maladjustment, substance abuse, and delinquent behavior
       leading up to the crime for which he was sentenced (to death row). His
       developmental problems came to fruition during adolescence and early
       adulthood as very serious issues with identity, socio-emotional immaturity,
       deceitfulness, substance abuse, and depression.

Ronk emphasizes the statement that he “is best understood as a troubled child inhabiting a

young man’s body.” That statement alone, he says, might have given jurors pause because

society does not condone killing children.

¶116. Essential to Dr. Garbarino’s analysis are three principles. The first is that “a single risk

factor or developmental asset” is rarely, if ever, decisive in child development. A risk factor’s

impact depends on the larger context; “it is the accumulation of risk factors that tells the

story.” Second, “[c]hildren differ temperamentally in how and to what degree they will react

to and generate particular experiences, including abuse and trauma.” Finally, parental

rejection is powerful:

       The experience of parental rejection has been found across cultures to lead to
       disrupted development, an effect so powerful that the most prominent research
       in this field refers to it as “a psychological malignancy.” Cross-cultural
       research indicates that parental rejection accounts for approximately 25% of
       the variation in bad outcomes for children and youth.

                                               45
¶117. According to Dr. Garbarino, research shows “adopted children are disproportionately

represented in a wide range of developmental issues—ranging from depression to

delinquency.” For Ronk, “adoption has been the central fact of his life.” At age seventeen,

he met his biological mother and her family. She told him that she was only sixteen when he

was born and that he was conceived as a result of “date rape.” The date rape occurred at a

church-based program for troubled teens. Her father served as the program’s chaplain. After

she became pregnant, she and her mom lived in a remote trailer until he was born.

¶118. When Dr. Garbarino asked Ronk about his worst childhood memory, Ronk responded,

“When I overheard my parents say they wished they had not adopted me.” More specifically,

       [Ronk] reports that at age six he overheard his parents talking about him, and
       that he heard them say that “I was the biggest mistake in their whole lives.”
       And, “I wish you were never born.” And, “I wish we had never adopted you.”
       At age 9, he remembers his mother saying, “the biggest mistake I ever made
       was adopting you.”

Those two comments—wishing that Ronk had not been born or adopted—“combine the two

most devastating things any child can hear from a parent,” Dr. Garbarino says. And they

affected Ronk, giving rise to sadness, manifesting as depression, and rage, manifesting as

aggression. Multiple times, he “attacked” his parents, leading them to install dead-bolt locks

on their bedroom door. That rage also manifested in Ronk’s hostility and resentment toward

his biological father, whom he has never met. “If I ever met [my biological dad],” he said,

“I would beat the dog piss out of him.”

¶119. “For [Ronk],” Dr. Garbarino says, “the idea that both his biological and adoptive

mothers ‘didn’t want [him]’ [was] overwhelming.”

                                             46
¶120. Dr. Garbarino discusses a risk-factor assessment, endorsed by the Centers for Disease

Control and Prevention, that gives an “Adverse Childhood Experiences” (ACE) score. While

not comprehensive, the assessment includes inquiries about “childhood experience of

physical, sexual, and psychological maltreatment; poverty; domestic violence; household

substance abuse; parental separation or divorce; depression or suicide in a family member;

and incarceration of a family member.” ACE has proven powerful in accounting for

differences in negative outcomes, “accounting for 65% of the variation in suicide attempts,

40% for depressive disorders, and 56% of illicit drug use problems.” All three, Dr. Garbarino

says, are relevant for understanding many killers’ lives.

¶121. Dr. Garbarino says Ronk’s ACE score appears to be four. For perspective, “[s]ome

36% of the general population reports an ACE score of zero”; “[s]ome 26% report one”;

“[16%] report two”; and “10% report three.” “Only 13% report four or more,” he says. He

identifies four risk factors affecting Ronk’s ACE score: (1) “being put down by his parents”;

(2) “being physically spanked with a wooden spoon leaving marks”; (3) “feeling rejected and

unloved in his family”; and (4) “having a parent with mental health problems (his mom being

diagnosed with depression).”

¶122. Dr. Garbarino admits Ronk lacks the “‘classic’ accumulation” of risk factors common

among murderers—e.g., “physical neglect, poverty, domestic violence, parental divorce,

parental incarceration, sexual abuse, and parental alcoholism.” In Dr. Garbarino’s experience,

their scores often range from eight to ten. Ronk’s “developmental story,” in contrast,

“appears to be linked to the special issues he faced as an adopted child.”



                                             47
¶123. Another assessment Dr. Garbarino cites is the Search Institute’s research on “40

Developmental Assets.” Weighing such factors as positive elements with family, school, the

community, cultural activities, and positive belief systems, the assessment gives “a

compelling picture of the role that positive influences and attributes have on pro-social

development in general, and upon violent and aggressive behavior in particular.” Among

youth with thirty-one to forty of those assets, only 6 percent are involved in antisocial

aggression, as opposed to 61 percent of youth with zero to ten. Ronk had thirteen

assets—four less than the average youth.

¶124. While acknowledging the difficulty of assessing Ronk’s temperament during infancy,

Dr. Garbarino says the fact that his biological mom did not want him “may have affected his

intrauterine experience.” His adoptive parents reported “attachment issues” early on.

“[Ronk’s adoptive parents] explained that he was very uncomfortable being hugged and

would run out of the room if physical contact was offered,” Dr. Garbarino says.

¶125. Because early, adverse attachment issues often result in developmental harm that is

“not readily observable,” Dr. Garbarino deems unsurprising that the impact of Ronk’s

adoption went unrecognized at trial and sentencing. “It appears to have been masked by the

apparent normality of his external social life (e.g., participating in church youth groups) and

his intellect and early academic success (e.g., IQ testing at 130 and placement in a ‘gifted’

program in elementary school),” he says.

¶126. Dr. Garbarino says Ronk’s childhood problems with attachment and rejection

sensitivity extended into adulthood. “[Ronk’s] life has been driven by an intense emotional



                                              48
‘neediness,’” he says. Ronk’s craving for emotional acceptance led him to impulsive, and

mostly unsuccessful, relationships. For example, he rushed into marriage with a young

woman he met in a drug-rehabilitation program. They separated after only a few weeks,

however, because Ronk cheated on her with her best friend. Notably, that account differs

from what Ronk told Dr. Smallwood: he told her that he and his wife had separated because

she was using drugs and cheating on him. Another example was his relationship with Craite.

Ronk described her as “a millionaire, a cougar, and a drunk.” He “rushed into a relationship

with [her] . . . both because she offered to support him so he could pursue his music and

because she offered ‘all the sex you could want.’” Sex, Dr. Garbarino explains, offered Ronk

a proxy for intimacy. Yet another example of Ronk’s impulsivity in relationships was his

decision to leave Craite for a woman he met online.

¶127. Dr. Garbarino characterizes the first thirty years of Ronk’s life as “an emotional mess”

because Ronk struggled emotionally and in making good decisions. “[Ronk] speaks of a

lifelong desire to ‘fit i[n],’ to ‘be like everyone else,’ ‘to have friends,’ and ‘to be accepted,’

that seems to reflect this overall emotional neediness,” Dr. Garbarino says. Ronk spoke

fondly of the time a therapist accepted him into her family. In addition, he currently is writing

a novel that projects his feelings of isolation and rejection.

¶128. Dr. Garbarino also discusses Ronk’s struggles with “Attention Deficit Hyperactivity”

and depression. Ronk has received counseling since elementary school, although the

experiences were neither effective nor all positive. He alleges one therapist grabbed him by

the neck; another disclosed confidences to his mom. At school, Ronk’s intelligence left him



                                                49
bored: he claimed he would read the textbooks the first few days of school and be bored from

then on.

¶129. Dr. Garbarino says Ronk communicated a “chronic pattern of negative behavior

toward himself and others that began in childhood and continued through adolescence into

adulthood.” Such behavior included the following:

       Substance abuse. From marijuana at age 11, he progressed to meth at 13 and
       then cocaine at 17.
       Self-destructive behavior. He engaged in “cutting” and “suicidal gestures
       such as overdosing on pills.”
       Defiance against parents. At age 15, he embarked on a “master plan to defy
       [his] parents.” He became “a boy at war with his immediate family.” His plan
       included “deliberate academic failure, as well as chronic stealing and lying.”
       In a psychological evaluation conducted at that time, he described his dad as
       “a perfectionist dictator.” And he labeled his younger, adopted sister as a
       “stuck-up conceited rat.” He also expressed homicidal intentions against his
       mom. Though he had threatened her numerous times before, this time he said
       he meant it.
       Defiance against others. He once broke up with a girl and “left with her car
       and her dad’s guns.” And while managing a clothing store, he stole $20,000
       in cash.

¶130. Reflecting back, Ronk said he had no moral compass. “I stole from the collection plate

at church—I would put in a dollar bill and secretly take out a ten dollar bill.”

¶131. Dr. Garbarino adds that Ronk had a long history of psychiatric hospitalizations since

age fifteen. At the same time, he notes that Ronk used voluntary hospitalization to alleviate

homelessness.

¶132. Dr. Garbarino concludes his affidavit as follows:

       Ronk’s behavior in the attack on [Craite] is best understood as the product of
       developmental disruptions that began in childhood and escalated in
       adolescence and adulthood, disruptions that created a person who is both

                                             50
       extremely “emotionally needy” and in chronic conflict with society. His
       experience was already “at risk” by virtue of the fact that he was an adopted
       child. It was undermined significantly by his perception of being rejected by
       his adoptive parents and compared negatively with his sister, who was also
       adopted. As [Ronk] put it, “She was the good child and I was the bad child.’‘
       His temperament and attachment issues appeared to have launched him on an
       increasingly negative path in childhood that became a pattern of chronic
       alienation, disengagement, anti-social behavior, and substance abuse in
       adolescence and adulthood, which culminated in the crime for which he is
       currently incarcerated.

He then adds, “[t]hese issues constitute significant mitigating factors in any informed

sentencing decisions . . . and should have been considered in [Ronk’s] original sentencing.”

¶133. In addition to Dr. Garbarino’s affidavit, Ronk offers an affidavit from Dr. Bhushan

S. Agharkar. Dr. Agharkar, who interviewed Ronk for about two hours, says it appeared

“[Ronk’s] history involved one of trauma and abandonment.” And “the symptoms [Ronk]

reported may be consistent with [b]ipolar [d]isorder or at least a major mood condition.” Yet

Dr. Agharkar says he needs more time to review Ronk’s social history and to conduct more

interviews to confirm his clinical suspicions. No supplemental affidavit or report from Dr.

Agharkar is provided.

¶134. An affidavit from Ronk’s adoptive mother Susan says they provided Ronk “a very

stable, structured home.” The family attended church, went camping, and took vacations.

Early on, they told Ronk he was adopted, and he knew what that meant. When he got older,

they took him to meet his biological mother. He learned his mother had been raped.

Afterwards, he struggled coming to terms with being adopted. He wrestled with rejection and

his feeling that he was “a mistake.” Alhough they sought counseling for him beginning in

fifth grade, his behavior steadily grew worse as he got older.

                                             51
¶135. Ronk’s biological mother Burrell’s affidavit confirms he was conceived as a result of

“date rape.” She identifies the biological father, but says that she does not know his

whereabouts. At age eighteen, Ronk told Burrell he wished she had kept and raised him.

¶136. Ronk argues that if counsel had conducted a mitigation investigation and hired a

qualified expert, then counsel could have presented and explained the following:

       !      “the story of [his] adoption and troubled childhood and
              adolescence—of his conception out of wedlock as the result of a what
              he believed was a rape”;
       !      the consequences of his learning of his adoption and his believing he
              was conceived as the result of rape;
       !      “his traumatic experiences of feeling rejection, of coming to believe
              that he was not wanted by either his biological or his adoptive parents”;
       !      “his mental illnesses, and how they exacerbated the effects of trauma”;
       !      “[his] repeated, failed attempts at treatment”; and
       !      his child-development issues.

Had the jury heard such mitigating evidence, he says, a reasonable probability exists that the

result would have been different.

¶137. Arguably, counsel’s mitigation investigation was deficient.

¶138. On one hand, we disagree with Ronk in three respects. First, contrary to his assertions,

Dr. Smallwood was qualified to provide mitigating evidence. While she did admit that a

mitigation study is outside the scope of her practice, she also said some information she

uncovered was relevant to mitigation. Unlike Wiggins, in which the psychologist’s reports

“revealed nothing . . . of [the] petitioner’s life history,” Wiggins, 539 U.S. at 523,

Dr. Smallwood’s report contained information about Ronk’s life. In addition, she evaluated

his mental-health issues, which Ronk admits is a primary task for mitigation specialists. And

                                              52
unlike Evans, in which Dr. Smallwood admitted lacking expertise about PTSD’s effects, she

never suggested Ronk’s mental-health issues were beyond her expertise.

¶139. Second, we disagree that counsel did no mitigation investigation. They did some. For

one, they moved to have Dr. Smallwood evaluate Ronk, in part, “to determine . . . whether

or not a psychological evaluation would reveal any migrating circumstances.” She spoke with

his parents and uncovered information relevant to sentencing. For another, they acquired

some records. Pretrial, the trial court granted a continuance to give Dr. Smallwood more time

to review “records from a number of institutions regarding [Ronk’s] past psychological

treatment.” (Emphasis added.) Later, Geiss referenced a “big binder full” of medical and

psychological records. Busby’s affidavit shows he acquired records as well. Although they

apparently went unused for the most part—in her list of sources, Dr. Smallwood cited records

from only one hospital—at least some were obtained.

¶140. Third, we disagree that the requirement of a mitigation specialist is well settled. That

is untrue. Hill v. Mitchell, 842 F.3d 910, 945 n.15 (6th Cir. 2016) (stating ABA Guidelines

do not establish a constitutional right to a mitigation specialist for the sentencing phase);

Honie v. State, 342 P.3d 182, 194 (Utah 2014) (“[T]rial counsel is not required to hire a

mitigation specialist in order to comply with his Sixth Amendment obligations.”); State v.

McGuire, 686 N.E.2d 1112, 1120 (Ohio 1997) (holding that hiring a mitigation specialist is

not a requirement for effective assistance). There is no “per se rule that trial counsel is

ineffective at mitigation unless a particular type of expert is retained.” Carter v. Mitchell,

443 F.3d 517, 527 (6th Cir. 2006).



                                             53
¶141. On the other hand, Dr. Smallwood’s report and the records that were obtained

arguably would have led a reasonable attorney to investigate further. Her report clearly

signaled that more was needed. She said “many variables which may provide mitigation are

reportedly found in [Ronk’s] psychological and medical history. However, I do not have the

benefit of those medical records.” So whatever records were in the “big binder” Geiss

referenced, Dr. Smallwood either did not get them or they were all from one hospital.

Because she lacked his other records, she “highly recommended” that they and “other

relevant records be secured and that collateral witnesses be interviewed.” What is more, she

specifically said her examination was not a mitigation study and recommended that one be

done. Counsel, apparently, did not heed her advice. Ronk presents evidence that counsel

neither interviewed collateral witnesses nor did counsel conduct a full mitigation study.

Susan says that counsel never contacted her or her husband about Ronk’s background or

contact information for his friends, teachers, church members, or other family members. To

her knowledge, Geiss “did not conduct any sort of mitigation investigation.” Burrell,

likewise, said counsel never contacted her. And Busby says trial counsel “did not develop the

mitigation evidence that was available.”

¶142. Furthermore, Busby says the records he collected warranted further investigation.

They note Ronk’s “chronic mental health history”; prior commitment to Whitfield; suicidal

ideations and attempts; homelessness; drug abuse; history of behavioral problems dating back

to fifth grade; “frontal lobe problems” as a youth; and bipolar-disorder and polysubstance-

dependance diagnoses.



                                             54
¶143. Although we find counsel’s mitigation investigation arguably was deficient, that

satisfies only half the test—he must also make a substantial showing of prejudice. In that

regard, we find he falls short.

¶144. The new evidence Ronk provides is mostly cumulative: Dr. Smallwood’s testimony

and report referenced his adoption; conception as a result of rape; sense of rejection and

feeling like a mistake; hearing his parents say they wish he had never been born or that they

had not adopted him; substance abuse; mental-health and behavioral issues beginning around

age ten; extensive mental-health history and hospitalizations; bipolar-disorder and ADHD

diagnoses; suicide attempts; depression; and failed relationships, including a failed marriage.

¶145. To be sure, Dr. Garbarino better explains and connects Ronk’s behavior to child-

development issues that included his adoption, sense of parental rejection, temperament, and

attachment issues. But Dr. Smallwood conveyed many of those things. She explained how

his adoption and feelings of being a mistake provoked anger. “[Ronk] apparently had

resentment about [his] adoption, feeling that he was a mistake, and he tended to take that

anger out on his adoptive parents,” she said. In speaking to Dr. Smallwood, Ronk

acknowledged that adopted children frequently grapple with rejection issues. “I know that

98 percent of adopted kids have rejection issues,” he told her. And in recalling past traumas,

he cited learning of his conception’s being the result of rape and hearing his adoptive parents

say they wished he had never been born.

¶146. Dr. Smallwood attributed Ronk’s impulsive, aggressive, and threatening behavior to

his bipolar disorder and ADHD. “Ronk had a history throughout his life of impulsive



                                              55
behavior, aggressive and threatening kind of behavior, not thinking before he made

decisions, and that is something that certainly, you know, are [h]allmarks of both manic

depressive disorder and ADHD,” she explained. Later, she added that “the presence of the

bipolar disorder and ADHD, which he has, would make it much more difficult for him to

control than the average person.”

¶147. Ronk’s homelife was not horrid. His adoptive mom Susan speaks of their attending

church, going camping, and taking vacations. Even Dr. Garbarino says Ronk’s adoptive

parents provided a “generally positive family and community environment.” And without

excusing or minimizing the impact of their alleged hurtful comments, Dr. Smallwood’s report

gives some context to at least one such instance. Ronk says he “caught them on a bad day

because [his] breaking a dish pushed them over the edge, and they said [the biggest mistake

they made was adopting me, and they wish I wasn’t born].” In other words, such comments

apparently were not commonplace—otherwise, he could not have had a generally positive

family environment.

¶148. Overall, the evidence casts Ronk’s adoptive parents as frustrated but still supportive.

More than once, he “attacked” them, which led them to install dead-bolt locks on their

bedroom door. He admitted devising a “master plan” to defy and oppose them by deliberate

academic failure, stealing, and lying. Despite all that, they assisted him in getting into

rehabilitation programs and in finding a job. They provided financial assistance and bailed

him out of jail. They also housed him for a time and tried to house him several times over the

years, but they eventually gave up. In a 2006 medical record, Ronk’s adoptive dad said Ronk



                                             56
could not return to live with them because “we’ve tried that too many times and it just

doesn’t work.”

¶149. To the extent the new evidence Ronk provides is beneficial, it is equally damaging.

On one hand, Dr. Garbarino discusses how Ronk’s being an adopted child put him “at risk.”

And he explains Ronk’s above-average ACE score and below-average number of

developmental assets. On the other hand, he concedes Ronk lacks the “‘classic’

accumulation” of risk factors common among murderers—his ACE score is four whereas

theirs often ranges from eight to ten. Even Ronk’s numerous hospital stays are questionable:

Dr. Garbarino says Ronk “used voluntary hospital admission as a way to alleviate issues

associated with homelessness.” Then there are the bad acts—taking his ex-girlfriend’s

father’s car and guns, stealing a large sum of money from an employer, and removing money

from the church offering plate. Maybe most damaging are Ronk’s comments about Craite.

According to Dr. Garbarino, he called her “a millionaire, a cougar, and a drunk,” and said,

essentially, that he used her for sex and to support his music career/hobby. Those comments

cast him as selfish, manipulative, contemptuous, and unrepentant.

¶150. In sum, Dr. Smallwood covered the basic mitigating evidence supporting Ronk, and

nothing offered now is new or different. In reweighing all the aggravating and mitigating

evidence, no reasonable probability exists that at least one juror would have struck a different

balance. The new evidence merely expounds on or rounds out facts that were presented to

the jury. Moreover, this double-edged evidence is nowhere near the magnitude of the

undiscovered evidence in cases like Williams, Wiggins, and Rompilla.



                                              57
              2.      Counsel was not ineffective for “opening the door” to damaging
                      evidence during the sentencing phase, for eliciting otherwise
                      inadmissible and prejudicial prior-bad-acts evidence from
                      Dr. Smallwood, and for failing to anticipate and/or meet additional
                      non-statutory aggravating evidence the State elicited from her during
                      cross-examination.

¶151. Mitigation evidence can be double-edged—so much so that counsel, following a

constitutionally adequate investigation, may reasonably choose to offer none. E.g., Burger

v. Kemp, 483 U.S. 776, 788–95, 107 S. Ct. 3114, 3123, 97 L. Ed. 2d 638 (1987). As part of

their investigation, counsel must make reasonable efforts to obtain and review information

they know the prosecution will likely use as evidence of aggravation. Rompilla, 545 U.S. at

377. And when choosing a mitigation theory, counsel’s investigation should include

reasonably discoverable related evidence that could cast an unfavorable light on the

defendant. Ross, 954 So. 2d at 1005–06. In Ross, for example, we held that counsel was

ineffective, in part, for failing to investigate Ross’s disciplinary record as an inmate. Id. at

1006. As discussed above, one of counsel’s primary mitigation theories in that case had been

that Ross was a “good prisoner.” Id. at 1005. That opened the door for the State to show he

had actually been disciplined for possessing a hacksaw, attempting to escape, and making

alcoholic beverages. Id. at 1005. We deemed that bad-act evidence “highly prejudicial, as it

tended to cast Ross as unrepentant, a habitual criminal, and a danger to society.” Id. at 1006.

As another example, in Hodges the United States District Court for the Northern District of

Mississippi found that trial counsel was ineffective at sentencing based on numerous errors.

Hodges, 2010 WL 3655851, at *39. Among them, counsel called witnesses who opened the

door to damaging evidence that included two prior jail escapes, two burglary charges, and

                                              58
an attempted sexual-battery charge. Id. at **34, 36. On cross-examination, counsel did not

try to rebut the negative impact of that testimony. Id. at *37.

¶152. Yet when the main mitigation theory is mental illness, it can be sound trial strategy

to present bad acts as examples of the defendant’s struggles with mental illness. Woodward

v. State, 843 So. 2d 1, 8–10 (Miss. 2003). In Woodward, defense witnesses testified about

Woodward’s arrests for stealing cars and attempted murder and about his claim of having

conversations with the Devil. Id. at 8. In addition, a psychologist noted his prior abusive,

violent behavior. Id. Through affidavits, however, trial counsel explained that their strategy

had been to portray Woodward as “basically a good person,” who struggled with good versus

evil, strove to do right, but was overwhelmed when he killed the victim. Id. at 9.

¶153. Here, Ronk argues that counsel was ineffective at sentencing for opening the door to

damaging evidence, eliciting otherwise inadmissible and prejudicial prior-bad-acts evidence,

and failing to anticipate or meet additional non-statutory aggravating evidence.

¶154. Dr. Smallwood testified that Ronk’s history was “congruent” or “consistent with”

bipolar disorder and ADHD. She described his history of “impulsive behavior, aggressive

and threatening kind of behavior, not thinking before he made decisions” as “[h]allmarks”

of bipolar disorder and ADHD. Counsel elicited additional testimony about a “childhood

conduct disorder”:

       [Geiss]:              Okay. Based upon your interviews and testing did you
                             find that Mr. Ronk had any kind of what we would call
                             a conduct problem, conduct disorder, anything like that?




                                             59
       [Dr. Smallwood]:   Right. This was not documented in his records, but as I
                          look back to the history that was given it appears that he
                          would have had a conduct disorder in his childhood.

       [Geiss]:           What with regard to Mr. Ronk would that be?

       [Dr. Smallwood]:   Well it’s -- conduct disorder is not just having a little bad
                          behavior, which a lot of kids have, but, in fact, it’s a
                          repetitive and persistent pattern of behavior in which the
                          basic rights of others or age appropriate norms are
                          violated. It can involve aggression to people or animals,
                          it could involve destruction of property, deceitfulness
                          and threat of serious violation of rules, and all of those
                          were present in Mr. Ronk.

To summarize, Dr. Smallwood said Ronk had “[v]ery severe problems from many, many,

many years back,” which remain evident today.

¶155. Counsel then delved into whether Ronk’s disorders prevented him from controlling

his actions:

       [Geiss]:           [T]he bottom line is here would it be fair to say that Mr.
                          Ronk confronted with a stressful situation or a situation
                          in which things are not going his way would be prone to
                          act or make the wrong decision and not really be totally
                          in control of that?

       [Dr. Smallwood]:   That’s a two-part question.

       [Geiss]:           Yes, it is?

       [Dr. Smallwood]:   So let me respond to those separately. That he would be
                          prone to act and make the wrong decision. Certainly he
                          would have the vulnerability to do that both based on his
                          -- the diagnosis that I have described and just behavioral
                          habits. Was he -- I think the second part of the question
                          was could he control that.

       [Geiss]:           Yes, ma’am?



                                           60
       [Dr. Smallwood]:      Not totally, but my evaluation did find that he did not
                             have a mental disorder that overpowered his will to the
                             point that he did not know right from wrong.

¶156. On cross-examination, the State had Dr. Smallwood concede that Ronk had not been

“overcome by some kind of organic mental disorder or anything like that,” but that he had

made “a behavioral choice” when he killed Craite. She also reaffirmed his history of

impulsive, aggressive, threatening, manipulative, and, perhaps, unlawful behavior. Further,

the State questioned her about Ronk’s malingering. She said he had not been completely

honest with her. Later, the State asked her about a letter Ronk wrote Hindall while he was

in prison awaiting trial. In the letter, he discussed a plan to escape from jail.

¶157. Toward the end of its cross-examination, the State asked Dr. Smallwood if she had

an opinion about Ronk’s being antisocial:

       [State]:              Does your opinion rise to the level that he would be
                             diagnosed with antisocial personality disorder?

       [Dr. Smallwood]:      Yes.

       [State]:              Is that -- pardon my ignorance of the medical
                             terminology, but is a synonym for that diagnosis
                             someone who is sociopathic?

       [Dr. Smallwood]:      Sometimes that’s kind of a lay term that’s used when we
                             say antisocial personalities.

                             ....

       [State]:              . . . So you would diagnosis him as antisocial personality
                             disorder?

       [Dr. Smallwood]:      Yes. I didn’t see that in any of the medical records that I
                             had, but when I look at the behavior as I assessed it I
                             think he does meet those criteria.

                                              61
¶158. On redirect, counsel focused on Ronk’s possible malingering:

      [Geiss]:              I want to specifically ask because [the State] dwelled on
                            it, the malingering test?

      [Dr. Smallwood]:      Yes.

      [Geiss]:              You took into consideration the fact that he could have
                            been exaggerating or even lying?

      [Dr. Smallwood]:      Yes.

      [Geiss]:              And that still did not change your diagnosis?

      [Dr. Smallwood]:      The diagnosis was made early in his life, and it doesn’t
                            change my observations of whether he met the criteria.

      [Geiss]:              In other words, he didn’t pull the wool over anybody’s
                            eyes, did he?

      [Dr. Smallwood]:      We knew that he was not being completely truthful.

¶159. In closing arguments, the State noted Dr. Smallwood’s testimony that Ronk was able

to control his actions and knew right from wrong. Geiss, however, urged jurors to read Dr.

Smallwood’s report and to consider her testimony:

      [Y]ou heard Dr. Smallwood, and I would again urge you when you get back
      there, you will have her report, and I ask all of you to please read through it
      carefully. Dr. Smallwood told you basically that . . . Ronk doesn’t possess the
      same tools all of us seem to possess. When he was confronted with a situation
      his responses are not the same as ours would be. . . . . [Ronk] is not insane. He
      is just incapable of making what would be in this kind of a situation a rational
      decision, and acting rationally under the circumstances. Remember what she
      told you. This is not an imaging thing. We talked to her a lot about what
      exactly it means to be bipolar because everybody today is bipolar. So that’s not
      true. It’s a very small percentage of the population that is truly suffering from
      this ailment, and that’s what it is. It’s a defect of the mind. It’s a chemical
      imbalance. And what it does and what it did in the case of . . . Ronk was push
      him to make all the wrong decisions from the very beginning just as he’s

                                             62
       probably been making a lot of wrong decisions for most of his life, but it’s not
       something that he wholly controls. If he’s fed medications then he’s planed out
       or leveled out or whatever it is that these medications do. I personally still do
       not understand bipolar disorder fully, but I do understand that it’s treated. And
       if it is not treated it causes problems. Those problems, like Dr. Smallwood told
       you, cause people that are aggressive or [Ronk] in this case, to act aggressively
       in a threatening manner and impulsively, and that I would submit to you is
       what happened here. . . . Ronk acted on impulse, and because he has a
       chemical imbalance his impulses were all wrong.

¶160. In its rebuttal closing, the State revisited Dr. Smallwood’s testimony and report:

       [T]he testimony that you heard from Dr. Smallwood, and I submit to you her
       report is quite telling. And what she told you herself in addition to what’s
       contained in her report likewise is quite telling. Because if you recall when I
       asked her in cross-examination whether these behavioral problems, behaviors[]
       that the defendant has exhibited over the course of adolescence and adulthood
       or his childhood, his impulsive behavior, his manipulation, his aggressive
       behavior, his inability to conform his behavior to the norms of society, the
       rules by which everyone in this courtroom must live, his inability over the
       course of his lifetime to do that. Someone years back diagnosed him as ADHD
       and bipolar. Well she agreed with me that that’s a classic clear example of
       someone who has antisocial personalty disorders. And in my inability to talk
       to her on the same level I said is that the same thing as sociopathic, and she
       agreed. And that’s the same kind of recklessness and indifference to the value
       of human life, impulsiveness that landed us in this courtroom and landed . . .
       Craite deceased. Take that into consideration please. Don’t allow bad
       childhood to be a crutch.

¶161. Ronk argues that counsel’s minimal investigation caused Dr. Smallwood’s testimony

not only to be weak, but also to be prejudicial. She only had medical records from one

institution; without his full medical and psychological treatment history, she was unable to

diagnose him—the most she could say was that his behavioral history was consistent with

bipolar disorder and ADHD. And to show that, she had to discuss “otherwise inadmissible

and extremely dangerous information” concerning prior bad acts. For example, she cited his

history of impulsive, aggressive, and threatening behavior. Even more damaging, according

                                              63
to Ronk, were the behaviors she associated with his childhood-conduct disorder—a persistent

pattern of violating others’ rights and age-appropriate norms; aggression towards people or

animals; destruction of property; deceitfulness; and the “threat of serious violation of rules.”

Ronk maintains that none of that would have been admissible had the State offered it to

establish his bad character. And to worsen the situation, instead of realizing Dr. Smallwood’s

limitations, Geiss compounded the damaging information by eliciting from her that Ronk

“did not have a mental disorder that overpowered his will.”

¶162. With the door opened, the State expanded on Ronk’s history of misbehavior. It elicited

his law breaking, manipulation of others, and planned escape from jail—a “highly

prejudicial” accusation standing alone, Ronk says. What is more, the planned jail escape

originated from a letter that was never introduced. Nor had Dr. Smallwood seen it

beforehand. The State’s cross-examination then culminated with its getting Dr. Smallwood

to label Ronk a “sociopath” with “anti-social personality disorder.” Those labels, Ronk says,

were stronger and more stigmatizing than her earlier opinions that his history was

“consistent” or “congruent” with bipolar disorder and ADHD. The labels also supported the

State’s “heinous, atrocious, and cruel” aggravator.

¶163. Ronk adds that counsel not only opened the door for the State to elicit damaging

information on cross-examination, but also failed to object when the State elicited rank

speculation. He gives two examples. First, the State asked if Ronk’s “violation of norms”

included “violation of the law.” Dr. Smallwood answered perhaps. Second, it asked if it




                                              64
would “probably be a fair statistic that the overwhelming majority of adopted children don’t

stab and kill somebody and burn their house.” Dr. Smallwood affirmed.

¶164. On redirect, rather than trying to ameliorate the damage, counsel had Dr. Smallwood

stand by her opinions even though she knew Ronk was not being candid. Citing Ferguson

v. State, 507 So. 2d 94, 97 (Miss. 1987), Ronk says a lawyer’s endorsing a client’s

untruthfulness requires reversal.

¶165. Then in closing remarks, Ronk says the State used Dr. Smallwood’s testimony to cast

him as “an ‘evil,’ manipulative, exploitative sociopath hiding behind nothing more than a

‘bad childhood,’ rather than a traumatized, disturbed child who grew up to have a serious

mental illness that contributed to his committing the crime.” Counsel’s closing argument, in

contrast, consisted of Geiss’s tepidly saying that Ronk lacked normal control due to mental

illness and asking jurors “to listen to Dr. Smallwood, read her report, and follow their

consciences.”

¶166. Ronk likens his case to Ross. In Ross, an insufficient mitigation investigation led

counsel to call mitigation witnesses whose testimony opened the door to damaging,

prejudicial information. Ronk also cites Rompilla, asserting that “[f]ailure to anticipate

damaging evidence that the State is likely to adduce . . . is prejudicial ineffectiveness

standing alone.”

¶167. We find Ronk fails to make a substantial showing that counsel was ineffective as

alleged here.




                                            65
¶168. Notably, Ronk does not argue that counsel should have presented no mitigating

evidence of mental illness or life history; rather, he argues that counsel should have prepared

better and known more about Dr. Smallwood’s findings in order to realize her limitations and

to anticipate the damaging information she would present and open the door to. Had counsel

done that, they could have presented the good minus the bad through a more qualified

expert—like Dr. Garbarino.

¶169. Counsel surely knew Dr. Smallwood’s testimony could have positive and negative

effects. Her report gave examples of Ronk’s impulsive, aggressive, threatening

behavior—e.g., prior crimes; “trouble being around people”; substance abuse; getting into

fights; making bomb threats; threatening or fighting his mother; and “a lot of failed

relationships.” In addition, weeks before trial, the State provided Geiss copies of letters from

Hindall. At the same time, however, Dr. Smallwood’s report said nothing about a childhood-

conduct disorder, antisocial personality disorder, or sociopathy. Nor is it clear if the letters

Geiss received mentioned Ronk’s jail-escape plan.

¶170. At any rate, counsel’s actions were not deficient. The decision to present Ronk’s

behavioral problems in the context of his mental illness fell within the realm of trial strategy.

Of course, those problems were subject to attack once presented. Hansen v. State, 592 So. 2d

114, 148 (Miss. 1991) (citations omitted) (“[W]hen the defendant puts mitigating evidence

before the jury during the penalty phase, the prosecution is allowed to counter-attack.”); see

also Brinkley v. Houk, 831 F.3d 356, 364 (6th Cir. 2016) (citation omitted) (stating that a

testifying psychologist’s review of a defendant’s history is “fair game” for cross-



                                               66
examination). As for the sociopath remark, we have held that counsel was not ineffective for

relying on an expert psychiatrist who referred to the defendant as a “sociopath with a history

of inappropriate conduct as a juvenile.” McGilberry v. State, 843 So. 2d 21, 31 (Miss. 2003).

Antisocial personality disorder has both negative and mitigating connotations. Morton v.

Sec’y, Fla. Dep’t of Corr., 684 F.3d 1157, 1168 (11th Cir. 2012). As for the jail-escape plan,

this case is not like Ross. Unlike counsel in Ross, counsel here did not advance a “good

prisoner” mitigation theory only to be surprised at trial by conflicting evidence. Instead, the

State raised the jail-escape plan as permissible rebuttal evidence that provided yet another

example of Ronk’s inability to abide by societal norms and laws. Davis v. State, 660 So. 2d

1228, 1249–50 (Miss. 1995) (citing Hansen, 592 So. 2d at 145).

¶171. But even if counsel’s performance was deficient in this regard, no prejudice is shown.

If Dr. Smallwood—or any expert, for that matter—had studied all Ronk’s medical and

psychological records and had been able to make a firm diagnosis, the State still could have

cross-examined her about the basis for her opinions. Shaffer v. State, 740 So. 2d 273, 281

(Miss. 1998) (quoting City of Laurel v. Upton, 253 Miss. 380, 393, 175 So. 2d 621, 625

(1965) (“In every case where an expert witness is allowed to express an opinion such witness

is subject to cross-examination as to the basis of his opinion.”). Ronk asserts she could have

testified about his mental illnesses without opening the door to unlimited character evidence.

Woodward v. State, 635 So. 2d 805, 810 (Miss. 1993) (stating counsel were ineffective for

not realizing they could have presented mental-illness testimony without “opening the door

to unlimited character evidence”). Even if what Ronk argues is true, Dr. Garbarino’s affidavit



                                              67
shows he would have testified no differently than Dr. Smallwood did. We fail to see how his

testimony would not present equivalent bad acts and open the door for the State to present

the very same evidence. He speaks of Ronk’s “delinquent behavior leading up to [Craite’s

murder]”; his rage; his attacking his parents; his “impulsive (and largely unsuccessful) efforts

to find connection”; his impulsivity; his struggling to make good decisions; his “chronic

pattern of negative behavior towards himself and others that began in childhood and

continued through adolescence into adulthood”; his defiance toward his parents; his threats

to kill his mother; his “deliberate academic failure”; his “chronic stealing and lying”; his

taking his girlfriend’s dad’s car and guns; his stealing from his employer; his stealing from

the church collection plate; and his “anti-social behavior.” All that shows impulsive,

aggressive, threatening, nonconforming, destructive, deceitful, manipulative, and unlawful

behavior. The new medical records, too, reference Ronk’s threatening his parents; his arrests;

and his crimes, including violent crimes (e.g., shoplifting, endangering the welfare of a child,

assault, harassment, and theft).

¶172. Finally, Ferguson is distinguishable. There, Ferguson and his lawyer had a

tumultuous relationship. Ferguson, 507 So. 2d at 94. We held “an independent violation of

the Sixth Amendment occurred . . . when Ferguson’s lawyer denounced him as a liar in open

court before the trier of fact, and that th[at] was an evil of such magnitude that no showing

of prejudice [wa]s necessary for a reversal.” Id. at 97. No such circumstances exist here.

Geiss was not calling Ronk a liar; he was emphasizing that Ronk’s truthfulness, or lack

thereof, to Dr. Smallwood was immaterial. He sought to bolster her opinions after the State



                                              68
had tried to discount them by cross-examining her about Ronk’s malingering. Geiss’s point

was that she knew Ronk was malingering, but her opinions remained unchanged.

              3.      Counsel was not ineffective for failing to discover, put on, and properly
                      explain evidence of Ronk’s mental disorders.

¶173. Ronk argues counsel was ineffective for failing to discover, put on, and properly

explain evidence of his mental disorders. He says research shows that such evidence

significantly affects jurors. An extensive study by the Capital Jury Project, for example,

showed that if the jury had known a defendant had a history of mental illness, 26.7 percent

of them were “much less likely,” and 29.5 percent were “slightly less likely,” to vote for

death. Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors

Think?, 98 Colum. L. Rev. 1538, 1559 (1998). And if they had known a defendant “had been

in institutions but was never given any real help,” 20.1 percent were “much less likely,” and

28.1 percent were “slightly less likely,” to vote for death. Id.

¶174. We find Ronk fails to present a substantial showing that counsel was ineffective in

this regard. Dr. Smallwood said Ronk had symptoms consistent with bipolar disorder and

ADHD. And at least three times, she said he had mental disorders. First, in discussing her

initial findings, she said, “[h]e did have mental disorders.” Second, when asked about his

ability to control his impulses, she said “the presence of the bipolar disorder and ADHD,

which he has” made impulse control much harder for him than the average person. (Emphasis

added.) And finally, she affirmed that she would diagnose him with antisocial personality

disorder. In addition, she explained the meaning of ADHD and bipolar disorder, noting that

true bipolar disorder is rare, affecting .4 percent to 1.6 percent of the population. She also


                                              69
said that Ronk had had “numerous hospital stays over the course of his lifetime” for mental

problems.

              4.     Counsel was not ineffective for a brief, tepid, and incomplete opening
                     statement and closing argument at sentencing.

¶175. Ronk argues that Geiss was ineffective for his “brief, tepid, and incomplete opening

statement and closing argument” at sentencing. He says Geiss’s opening statement was six

sentences (minus “Ladies and gentlemen” and “Thank you”) and only 127 words:

       Ladies and gentlemen. You will recall way back Monday when we started this
       process I talked about them making a decision about whether or not the State
       should take someone’s life. You would want to know as much as possible
       about that individual, and that is what we’re going to try and get across to you
       today, this morning. we will do that through the testimony of Dr. Beverly
       Smallwood who was a psychologist -- is a psychologist and conducted an
       evaluation on Mr. Ronk. I’m not going to belabor what it is. She will testify,
       you will hear that yourselves. But I do ask that you pay attention because some
       of it is medicalese. And I will try and make sure that Dr. Smallwood explains
       that as simply as possible. Thank you.

Ronk insists that Geiss should have erred on the side of saying too much rather than choosing

not to “belabor” whatever it was he had in mind. Ronk, again, emphasizes counsel’s duty not

only to present mitigating evidence, but also to explain it.

¶176. The State disagrees that Geiss’s opening statement was either too brief or ineffective

in explaining why death was unwarranted. It says Ronk’s insistence that more should have

been said is subjective: no mandatory minimum number of sentences or words is required.

Opening statements are not even mandatory. Miss. Code. Ann. § 11-7-147 (Rev. 2004)

(“[T]he defendant may briefly state his case, and the evidence by which he expects to support




                                             70
it.”) (emphasis added). Nor is counsel per se ineffective for failing to give any. Spicer v.

State, 973 So. 2d 184, 197 (Miss. 2007)).

¶177. The State also disputes that Geiss’s opening statement was unclear. His point was

simple: He was telling the jury that, through Dr. Smallwood, he would provide them the

information they needed to decide whether death should be imposed. And he strategically

chose neither to detract from that point nor to risk losing the jury’s attention by wading into

the minutiae.

¶178. We find Ronk fails to present a substantial showing that Geiss’s opening statement

constituted ineffective assistance. In Branch v. State, 882 So. 2d 36, 55 (Miss. 2004), we

rejected Branch’s argument that counsel was ineffective for giving no opening statement at

the sentencing phase. Branch cited Section 11-7-147; Rushing v. State, 711 So. 2d 450, 458

(Miss. 1998) (holding failure to give an opening statement is not per se ineffective

assistance); and Bell, 535 U.S. at 701–02 (holding counsel was not ineffective for failing to

give a closing statement). Nothing is facially improper about a brief opening statement that

simply introduces and orients the jury to the evidence they will hear.

¶179. Ronk adds that Geiss’s closing argument was both brief (less than six minutes and

only 795 words) and ineffective.

¶180. As for the brevity, Ronk cites Gray v. State, 351 So. 2d 1342, 1346 (Miss. 1977).

There, this Court held that the trial court abused its discretion in limiting counsel’s closing

argument in a capital case to twelve minutes. Id. at 1346. The Court reasoned that the

sentencing stage is “for the purpose of determining whether [the] defendant will live or die



                                              71
and a defendant should be given ample time to fully argue this important question.” Id. The

error there, notably, was based on the trial court’s limiting the argument.

¶181. As for the substance, Ronk complains about Geiss’s saying that Ronk had “forfeited

his life” and Geiss’s never asking the jury to sentence him to life. Ronk also complains that,

for some reason, Geiss spent eighty-six words explaining Ronk was not legally insane. And

Geiss never mentioned Ronk’s adoption—the central fact of his life, according to Dr.

Garbarino. What is more, Geiss told the jury to read Dr. Smallwood’s report, but he did not

explain what it meant. To the contrary, he said he did not understand it:

       If he’s fed medications then he’s planed out or leveled out or whatever it is
       that these medications do. I personally still do not understand bipolar disorder
       fully, but I do understand that it’s treated. And if it is not treated it causes
       problems. Those problems, like Dr. Smallwood told you, cause people that are
       aggressive or [Ronk] in this case, to act aggressively in a threatening manner
       and impulsively, and that I would submit to you is what happened here. . . .
       Ronk acted on impulse, and because he has a chemical imbalance his impulses
       were all wrong. But what you’ve got to consider is whether or not that’s
       enough to put him to death.

Ronk disparages those comments. “It is easy to imagine jurors hearing this and thinking,

yes—that is enough,” he says.

¶182. Closing arguments fall within the ambit of trial strategy. Havard v. State, 928 So. 2d

771, 796 (Miss. 2006) (citing Pruitt v. State, 807 So. 2d 1236, 1240 (Miss. 2002)). For that

reason, we have been “consistently hesitant to vacate a sentence based on closing arguments

by defense counsel.” Havard, 928 So. 2d at 796. In Havard, counsel’s brief closing argument

conceded an aggravating circumstance, i.e., the victim’s tender age, and did not argue

mitigating circumstances beyond telling jurors that mitigating circumstances were “what



                                             72
[they] [could] find in their souls to lessen the impact of the aggravating circumstances.” Id.

We held that while the closing argument “could have been presented more forcibly,” it did

not render counsel ineffective. Id.; contra Woodward, 635 So. 2d at 810 (holding counsel’s

closing argument was ineffective when counsel admitted Woodward’s guilt and said he could

not ask the jury to spare Woodward’s life other than on “redeeming love,” a non-mitigating

circumstance).

¶183. Depending on the facts, merely pleading for mercy can be a sound strategic choice.

Powers v. State, 883 So. 2d 20, 35 (Miss. 2003) (citing Manning v. State, 735 So. 2d 323,

347–48 (Miss. 1999)).

¶184. We find Ronk fails to present a substantial showing that Geiss’s closing argument

constituted ineffective assistance. Overall, it was neither deficient nor prejudicial. He told

jurors to re-read the instructions and to read Dr. Smallwood’s report carefully. He also told

them that

       !      they would not fail to fulfill their oath if they failed to reach a
              unanimous decision because Ronk had already forfeited his life;

       !      two of the aggravating factors did not factor into Craites’s death;

       !      Ronk “doesn’t possess the same tools all of us seem to possess,” so his
              responses to situations are not the same as others;

       !      even though Ronk could distinguish right from wrong and, therefore,
              was not legally insane, he was incapable of acting rationally under the
              circumstances;

       !      bipolar disorder is a rare chemical imbalance of the mind;

       !      Ronk’s bipolar disorder pushed him to make a wrong decision here just
              as it has done his entire life;

                                             73
       !      Ronk’s bipolar disorder caused him to act aggressively and impulsively
              here;

       !      they could unanimously sentence him to death, unanimously sentence
              him to life, or, if unanimity could not be reached, sentence him to “the
              deprivation of the rest of his life”; and

       !      they must weigh their decision individually and “stick to their guns” if
              fellow jurors cannot persuade them otherwise.

Finally, he told the jury to remember their oath and to follow their conscience.

       B.     Counsel was not ineffective in the guilt phase.

¶185. Ronk says Geiss’s illnesses impaired his performance in the guilt phase as well. He

gives two examples.

¶186. First, at one point during the jury-instructions conference, Geiss said he was “at a loss

of how to argue the case.” And later, he said he was “terribly confused.” Not long after that,

he said it had been defense counsel’s position that the jury would find Ronk guilty of

something.

¶187. Second, in his closing argument, Geiss said, “We are hard pressed to tell you this is

a good solid self-defense case . . . .” Ronk calls that remark “inexplicable.” He insists self-

defense was his strongest primary defense. Evidence was presented to support it, and the jury

was instructed accordingly. Ronk suggests that illness may have caused that remark: earlier,

Geiss had said, “[E]xcuse me I’m short of breath.” Regardless, Ronk says the jury’s hearing

Geiss say the main defense theory was no good surely made a big impression.

¶188. We find Ronk fails to present a substantial showing that Geiss was ineffective during

the guilt phase. Geiss’s remarks must be considered in context.



                                              74
¶189. The jury-instructions conference began in the late afternoon. Geiss offered

instructions on self-defense, imperfect self-defense manslaughter, deliberate-design murder,

and heat-of-passion manslaughter. The parties and the trial court discussed at length which

were proper. One of Geiss’s defense theories was that Craite was murdered before the arson;

if so, he argued, Ronk could be guilty of either murder or manslaughter, but not capital

murder. The State discredited that theory based on the one-continuous-transaction doctrine,

i.e., it did not matter if the arson occurred before, during, or after the killing. The trial court

said it was inclined to agree. It added that it understood that “the defense primarily was one

of self-defense” and that it saw no evidentiary support for deliberate-design murder. The

State then asserted that it did not believe evidence supported imperfect self-defense

manslaughter either. Notably, the imperfect self-defense-manslaughter instruction was

eventually denied. Ronk, 172 So. 3d at 1125–26. When the trial court asked Geiss if he

wished to say anything else, he replied, “I’m somewhat at a loss of how to argue the case.”

At that point, the trial court proposed recessing for the evening, allowing both sides to

research further, and reconvening the next morning. In doing so, it voiced uncertainty and

said it had “serious concerns” about which self-defense instructions were proper.

¶190. After the jury was excused, the parties and the trial court discussed jury instructions

a bit more. Toward the end of that discussion, the trial court tried to pinpoint the unresolved

issues. When it asked Geiss if he knew of any additional unresolved instructions, he replied,

“No. I’m terribly confused.” The court again asked, “Do you know of any others?” He said,

“No, ma’am.” With that, the court recessed.



                                                75
¶191. The next morning, the trial court said its research, along with the authorities provided

by both sides, yielded “no clear answer.” Geiss elaborated on his theory that no continuous

course of conduct had occurred. After the trial court discussed several cases in trying to

determine if a lesser-included-offense instruction was proper, Geiss interjected as follows:

       Your Honor, perhaps I should point out now that taking away any of the lesser
       included from the defendant and making it an all or not guilty argument
       basically takes away from him any defense whatsoever. It’s been our position,
       and I’m sure the jury would find, that, you know, Mr. Ronk is guilty of
       something. Our argument has just been it is not capital murder, but it could be
       murder and it could possibly be manslaughter, and that they should be entitled
       to at least that option, one or the other.

The trial court understood but disagreed that Ronk would be left with no defense. “I believe

he still has the defense of self-defense, which as I understand is his primary defense in this

case,” it said. Still, out of an abundance of caution, it granted a lesser-included-offense

instruction on murder and arson.

¶192. We find that Geiss’s remarks about being “at a loss” and “terribly confused” do not

show deficient performance. The “at a loss” remark probably reflected his frustration amidst

a complex debate about which self-defense instructions were proper and what effect the

refusal of certain instructions would have on his trial strategy. The trial court itself said that

“no clear answer” was apparent. And the “terribly confused” remark was understandable

given the nature of the discussion.

¶193. Further, Geiss’s comment that the defense believed the jury would find Ronk guilty

of something did not constitute deficient performance either. Given the overwhelming

evidence, that statement was reasonable.



                                               76
¶194. In any event, no prejudice is shown. Ronk received not only a self-defense instruction,

but also a lesser-included-offense instruction.

¶195. In its closing argument, the State conceded that it did not know exactly what had

happened in the bedroom in which Craite died. Still, it discredited Ronk’s assertion that he

thought Craite was going to retrieve a gun inside the closet, because no evidence of any gun

was found inside the bedroom.

¶196. In his closing argument, Geiss touched on self-defense, but emphasized the lesser-

included offenses more:

               There is an instruction in here on what is deliberate design which would
       support murder, and I don’t want you -- because the instruction points out
       don’t confuse deliberate design with any kind of premeditation because under
       the law in the deliberate design part you come up like that. And that basically
       is what happened here. . . . Ronk in the blink of an eye lashed out when he
       thought that [Craite] was going to do what to him? And that’s another issue.
       We are hard pressed to tell you this is a good solid self-defense case, but we
       don’t have to prove that. It’s rather the State’s burden to prove that there was
       not self-defense, and I don’t think they have put up anything that says this was
       not self-defense. All that we have are what . . . Ronk himself has told everyone
       from the beginning, and told them over and over again. That [Craite] attacked
       him, he thought she was going for the shotgun, which he thought was in the
       bedroom closet, and so he stabbed her. Now that right in and of itself if you
       think that is what happened takes this immediately out of being a capital crime,
       we think, and puts it four square on the lesser[-]included offense. Ladies and
       gentlemen, we would submit to you that is what the evidence shows here.

               [W]e can’t condone a lot of what . . . Ronk did. On the other hand, I
       don’t think we can find him guilty of a murder for which he risks losing his
       own life. We knew from the very beginning that [Ronk] was not going to be
       walking out of the door when this was over, but I would submit to you what
       the true facts indicate in this case are punishment for lesser[-]included offenses
       that you have been instructed about. It’s that simple, and we ask that you so
       find.




                                              77
¶197. We find Geiss’s remarks in closing argument do not constitute ineffective assistance

of counsel. As stated already, we are hesitant to vacate a sentence based on defense counsel’s

closing argument. Havard, 928 So. 2d at 796. And despite Geiss’s comment, the elements

instruction for capital murder required the jury to find that Ronk had not acted in self-

defense. Ronk received self-defense instructions.

¶198. Whether Geiss should have argued self-defense more forcibly is a matter of trial

strategy. And he faced a dilemma. To find Ronk acted in self-defense, the jury had to find

he had reasonable grounds to apprehend “a design on the part of [Craite] to kill him or to do

him some great bodily harm” and that such danger was imminent. Evidence showed that

Craite kept two guns in a studio apartment attached to the carport, but no trace of any gun

was found in the bedroom where she died. Not only had the State highlighted that in its

closing argument, but the trial court had denied Ronk’s imperfect-self-defense manslaughter

instruction. It was not unreasonable then for Geiss to (a) admit that the self-defense argument

was not solid; (b) say that, nevertheless, it remained plausible; and (c) urge the jury to

consider the lesser-included offenses of murder and arson—crimes that would at least spare

him a death sentence. What is more, under the lesser-included-offense instruction, the jury

still had to find that Ronk had not acted in self-defense in order to convict him of murder.

Conceivably, then, the jury could have found him not guilty of murder, but guilty of arson

only.




                                              78
II.    Ronk’s challenge to the disproportionality of his sentence is barred by the
       doctrine of res judicata.

¶199. On direct appeal, Ronk claimed his death sentence was “excessive or disproportionate

to the penalty imposed in similar cases, considering both the crime and the defendant.” Ronk,

172 So. 3d at 1148. After considering the facts of Ronk’s crime and comparing it to similar

cases in which a death sentence was imposed, we held his sentence was neither excessive nor

disproportionate:

       The evidence reflects that Ronk stabbed an unarmed victim multiple times in
       the back, took the time to change clothes and search the victim’s house for
       items of value, poured a trail of gasoline through the victim’s house and into
       the room where the victim lay incapacitated, and left the victim to suffer in the
       blaze as he fled to another state, seemingly destroying any evidence of his
       crime. While Ronk contends that his culpability is diminished because he was
       unaware that Craite was still alive when he committed the arson, his conduct
       is nevertheless analogous to the [Tison v. Arizona, 481 U.S. 137, 157, 107 S.
       Ct. 1676, 1688, 95 L. Ed. 2d 127 (1987)] Court’s example of “the person who
       tortures another not caring whether the victim lives or dies, or the robber who
       shoots someone in the course of the robbery, utterly indifferent to the fact that
       the desire to rob may have the unintended consequence of killing the victim[.]”

Ronk, 172 So. 3d at 1148.

¶200. Ronk also argued “Section 99–19–105(3) allows for the arbitrary imposition of the

death penalty because it does not require this Court to review cases where death has been

imposed to cases where death is sought, but not imposed.” Id. at 1146. We rejected that

argument, stating that we had declined prior invitations to “undertake the overwhelming task

of considering all death eligible cases in our review.” Id. (quoting Lester v. State, 692 So.

2d 755, 801–02 (Miss. 1997), overruled on other grounds by Weatherspoon v. State,

732 So. 2d 158, 162 (Miss. 1999)). We also said that Ronk had cited no controlling authority



                                              79
requiring us to change our proportionality review. Ronk, 172 So. 3d at 1146 (quoting Lester,

692 So. 2d at 801–02).

¶201. Ronk concedes that disproportionality was addressed on direct appeal; however, he

argues that “[a] review of cases with facts meaningfully similar to [his] case dispels the

notion that [his] sentence was not ‘disproportionate to the penalty imposed in similar cases.’”

He asks us to consider cases more factually similar to his, i.e, “cases in which the defendant

was accused of a killing and an arson (and sometimes of other crimes as well).”

¶202. Ronk says that since July 2, 1976—the date Gregg v. Georgia, 428 U.S. 153, 96 S. Ct.

2909, 49 L. Ed. 2d 859 (1976), ushered in the modern era of capital punishment—thirty-five

cases have been before this Court and the Court of Appeals “in which the defendant killed

the victim or victims and set a fire in connection with the killing.” Of those thirty-five cases,

nine resulted in death sentences; twenty-six did not.

¶203. To show that his sentence is disproportionate (and that Mississippi’s application of

the death penalty is arbitrary and capricious), Ronk discusses six cases that he says had more

egregious facts, and sometimes multiple victims, but resulted in sentences less than death:

       McIntosh v. State, 917 So. 2d 78 (Miss. 2005). McIntosh entered his mother’s
       home and struck her and her boyfriend. Id. at 81. After the boyfriend regained
       consciousness and confronted McIntosh, McIntosh doused him with fluid and
       set him and the house on fire. Id. The boyfriend survived, but he sustained
       burns to more than half his body; the mother died of smoke inhalation. Id.
       McIntosh was sentenced to life without parole for capital murder and twenty
       years for aggravated assault. Id.

       Moss v. State, 940 So. 2d 949 (Miss. Ct. App. 2006). Moss beat his ex-wife,
       slashed her throat with a pocketknife, beat her again, put her in her own
       vehicle, and then set it afire. Id. at 951. She died of smoke inhalation. Id. Moss



                                               80
       pleaded guilty to murder, kidnapping, grand larceny, and arson, and was
       sentenced to life, ten years, five years, and three years respectively. Id. at 950.

       Franklin v. State, 23 So. 3d 507 (Miss. Ct. App. 2009). Franklin shot two
       people and then burned down the house they were in. Id. at 509. He was
       sentenced to two life terms for two counts of murder and twenty years for
       arson. Id.

       Rochell v. State, 748 So. 2d 103 (Miss. 1999). Rochell killed at least one
       person and burned the person’s house down. Id. at 108. He was indicted for
       two counts of capital murder and one count of arson. Id. at 105. He pleaded
       guilty to one count of murder and arson and was sentenced to life and twenty
       years respectively. Id. at 106.

       Wilson v. State, 923 So. 2d 1039 (Miss. Ct. App. 2005). Wilson went to his
       ex-wife’s house and shot her and a man who was there. Id. at 1040. She
       survived, but the man died; his body was found inside a burning truck. Id.
       Wilson was sentenced to life for murder, twenty years for aggravated assault,
       and three years for arson. Id.

       Smith v. State, 897 So. 2d 1002 (Miss. Ct. App. 2004). Smith burned his ex-
       wife’s house down. Id. at 1004. She survived, but their grandson died inside
       of smoke inhalation. Id. Smith was sentenced to life for murder. Id.

¶204. We find this claim is barred by the doctrine of res judicata. Miss. Code Ann.

§ 99-39-21(3) (Rev. 2015). On direct appeal, we rejected not only rejected Ronk’s

disproportionality argument, but also the argument that we should “review cases where death

has been imposed to cases where death is sought, but not imposed.” Ronk, 172 So. 3d at

1146, 1148. Notwithstanding the res judicata bar, we are not obligated to consider all death-

eligible cases in reviewing proportionality claims. Lester, 692 So. 2d at 801–02; Batiste v.

State, 121 So. 3d 808, 872 (Miss. 2013) (rejecting a claim that we must consider cases in

which the death penalty was not imposed as part of our proportionality review).




                                               81
III.   Ronk’s challenge to the constitutionality of Mississippi’s death-penalty statute
       either is barred by the doctrine of res judicata or is waived.

¶205. On direct appeal, Ronk challenged the death penalty on three grounds. Ronk, 172 So.

3d at 1146–47.

¶206. First, he argued that Section 99-19-105 (Rev. 2015)—the statute governing our

mandatory review of death sentences, including whether the sentence is excessive or

disproportionate—is insufficient because it does not require us “to review cases where death

has been imposed to cases where death is sought, but not imposed.” Id. at 1146. We rejected

that argument and held that, absent some intervening precedent, “Mississippi’s capital

sentencing scheme is entirely constitutional.” Id. (citing Woodward v. State, 726 So. 2d 524,

528 (Miss. 1997)).

¶207. Second, he argued that “the death penalty is imposed in a discriminatory manner in

violation of the Eighth Amendment and the Equal Protection Clause of the Fourteenth

Amendment, in that it is imposed disproportionately against males, indigent defendants, and

those accused of killing females.” Ronk, 172 So. 3d at 1146. We rejected that argument as

well, holding that Mississippi’s capital-sentencing scheme complies with Furman v.

Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and its progeny. Ronk, 172

So. 3d at 1146–47 (quoting Underwood v. State, 708 So. 2d 18, 38 (Miss. 1998)). As for

Ronk’s equal-protection claim, we said, “[s]tatistical evidence alone is insufficient to prove

discrimination.” Ronk, 172 So. 3d at 1147 (citing McCleskey v. Kemp, 481 U.S. 279,

292–97, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987)). Instead, “the defendant must show ‘that

the decisionmakers in his case acted with discriminatory purpose.’” Ronk, 172 So. 3d at 1147


                                             82
(quoting McCleskey, 481 U.S. at 292). Ronk, however, “provide[d] no evidence that his

sentencing jury acted in a discriminatory manner . . . .” Ronk, 172 So. 3d at 1147.

¶208. Finally, we rejected his claim that the “‘heinous, atrocious, or cruel aggravator’ is

unconstitutionally broad and vague.” Id. at 1147.

¶209. Here, Ronk argues that Mississippi’s death-penalty statute is unconstitutional because

“the death penalty, as applied, is inherently arbitrary and capricious, despite all efforts to

eliminate unfairness.” He draws heavily from Justice Breyer’s dissent in Glossip v. Gross,

135 S. Ct. 2726, 2755–2780, 192 L. Ed. 2d 761 (2015) (Breyer, J., dissenting). There, Justice

Breyer discussed inexplicable discrepancies when death is imposed. Id. at 2763. And he

noted that imposition of the death penalty depends heavily on geography, even within death-

penalty states. Id. at 2761.

¶210. Following Justice Breyer’s lead, Ronk says that since October 1976, 57 of

Mississippi’s 82 counties have accounted for all 213 death sentences. Of those 57 counties,

9 account for almost half of all death sentences. And Harrison County, in which Ronk was

convicted and sentenced, has had the most death sentences—29.

¶211. Justice Breyer also noted the impact of race and gender. Id. at 2760. A study by the

United States Government Accountability Office (GAO), for example, found that

“individuals accused of murdering white victims, as opposed to black or other minority

victims, are more likely to receive the death penalty.” Id. at 2760. Ronk says the same is true

for Mississippi: of the 250 victims since 1976, 182 were white (72.8 percent) (including the

victim here); 55 black (22 percent); 7 Asian (2.8 percent); 5 unknown (2 percent); and 1



                                              83
Hispanic (.4 percent). Yet according to the United States Department of Justice and the Wall

Street Journal, approximately 70 percent of homicide victims in Mississippi are black. “These

statistics,” Ronk says, “strongly suggest that a defendant who is convicted of the capital

murder of a white person is much more likely to receive the death penalty than when the

victim is a person of color.”

¶212. Because Ronk challenged the constitutionality of Mississippi’s capital-sentencing

scheme on direct appeal, we find this claim is barred by the doctrine of res judicata. Miss.

Code Ann. § 99-39-21(3) (Rev. 2015). Ronk, of course, did not advance these specific

arguments on direct appeal. Generally, “[t]he doctrine of res judicata ‘bars all issues that

might have been (or could have been) raised and decided in the initial suit, plus all issues that

were actually decided in the first cause of action.’” Pierce v. Pierce, 132 So. 3d 553, 560

(Miss. 2014) (quoting Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1337 (Miss.

1997)). But Section 99-39-21(3) says the doctrine applies to issues “decided at trial and on

direct appeal.” (Emphasis added.) At any rate, even if res judicata does not apply, the claim

is waived. Miss. Code Ann. § 99-39-21(1) (Rev. 2015). While claims may be excepted from

the waiver bar “upon a showing of cause and actual prejudice,” Miss. Code Ann. § 99-39-

21(1), Ronk cannot show either.

¶213. We have held that statistical evidence is insufficient to establish that Mississippi’s

death-penalty scheme is applied in an irrational, discriminatory manner in violation of either

the United States or Mississippi Constitutions. Galloway v. State, 122 So. 3d 614, 680–81




                                               84
(Miss. 2013). Instead, defendants or petitioners must show “the decision makers in [their]

case acted with discriminatory purpose.” Id. at 681 (citing McCleskey, 481 U.S. at 292).

¶214. In addition, Justice Breyer’s dissent in Glossip is not the law. The Supreme Court has

not held that capital punishment is unconstitutional. Under the Supremacy Clause, we

“cannot interpret the federal Constitution to be more restrictive than has the Supreme Court

on issues that Court has directly addressed.” State v. Bush, 423 P.3d 370, 392–93 (Ariz.

2018) (citations omitted). Nor can we anticipate what the Supreme Court may decide in the

future. Id. at 393 (citations omitted). So no basis supports our declaring that Mississippi’s

capital scheme violates the United States Constitution. See id.

IV.    Ronk’s cumulative-error claim lacks merit.

¶215. The cumulative-error doctrine “holds that individual errors, which are not reversible

in themselves, may combine with other errors to make up reversible error, where the

cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross, 954

So. 2d at 1018 (citing Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003)). “[R]elevant factors

to consider in evaluating a claim of cumulative error include whether the issue of innocence

or guilt is close, the quantity and character of the error, and the gravity of the crime charged.”

Ross, 954 So. 2d at 1018 (citation omitted). In capital cases, “the aggregate effect of various

errors may create such an atmosphere of bias, passion and prejudice that they effectively

deny the defendant a fundamentally fair trial.” Woodward v. State, 533 So. 2d 418, 432

(Miss. 1988) (citing Stringer v. State, 500 So. 2d 928, 939 (Miss. 1986)), vacated in part,

635 So. 2d 805 (Miss. 1993).



                                               85
¶216. Ronk argues that even if doubt exists about whether one error among the litany he

alleges requires reversal, the cumulative effect of them all does. He maintains that the errors

are both numerous and involve significant violations of his constitutional rights.

¶217. Having found that Ronk’s claims are all either barred or fail to present a substantial

showing of the denial of a state or federal right, we find that this claim lacks merit.

V.     Ronk’s claim that trial counsel failed to preserve the record for review is waived.

¶218. “[A] defendant has no right to a ‘petit jury composed in whole or in part of persons

of [the defendant’s] own race,’ [but] he or she does have the right to be tried by a jury whose

members are selected by nondiscriminatory criteria.” Powers v. Ohio, 499 U.S. 400, 404,

111 S. Ct. 1364, 1367, 113 L. Ed. 2d 411 (1991) (internal citation omitted). The State cannot

exclude potential jurors based solely on race. McFarland v. State, 707 So. 2d 166, 171

(Miss. 1997) (citing Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed.

2d 69 (1986)). Under Batson, if a defendant objects to a peremptory strike, he or she must

first “make a prima facie showing that race was the criteria for the . . . strike.” McFarland,

707 So. 2d at 171 (citing Batson, 476 U.S. at 96–97). The burden then shifts to the State to

offer a race-neutral explanation. McFarland, 707 So. 2d at 171 (citing Batson, 476 U.S. at

97–98). The court must then decide if the defendant has met his or her burden of proving

purposeful discrimination. McFarland, 707 So. 2d at 171 (citing Batson, 476 U.S. at 98).

¶219. The venire’s, empaneled jury’s, and community’s racial composition are relevant

factors in determining whether a Batson violation occurred. Corrothers v. State, 148 So. 3d

278, 308 (Miss. 2014) (quoting Strickland, 980 So. 2d at 917); see also Camper v. State,



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24 So. 3d 1072, 1076 (Miss. Ct. App. 2010) (“When considering a Batson objection, the trial

court should consider the racial composition of the entire venire panel, the jurors considered

for service, and the jurors and alternates who actually served.”). At the same time, an analysis

of the venire’s and the jury’s racial composition is not required: “The focus of the Batson

inquiry is on the purposeful discrimination in a party’s use of peremptory challenges, not on

the ultimate racial composition of the jury.” Berry v. State, 728 So. 2d 568, 572 (Miss. 1999)

(citing Sudduth v. State, 562 So. 2d 67, 71 (Miss. 1990)).

¶220. Ronk says that, “[u]pon information and belief, the jury in [his] case was all white

with one African-American male as an alternate.” Counsel did not object to the State’s four

strikes for cause and eight peremptory strikes. Counsel did not object to any. But because

trial counsel did not preserve a record of the venire’s racial composition, “[n]either appellate

counsel nor post-conviction counsel could compare the percentage of African-American

venire members struck with the percentage of white venire members struck, or even

determine the percentage of African-Americans in the jury venire itself.” This lack of record,

Ronk argues, leaves an incomplete picture of the trial proceeding and renders a meaningful

post-conviction proceeding impossible.

¶221. Ronk cites Chapman v. State, 167 So. 3d 1170, 1173 (Miss. 2015), and Brown v.

State, 187 So. 3d 667, 671 (Miss. Ct. App. 2016), as support. In Chapman, Chapman was

serving a life sentence for rape. Chapman, 167 So. 3d at 1171. He had never had a direct

appeal, and his numerous motions for post-conviction relief had been denied on procedural

grounds. Id. at 1171–72. As a result, no appellate court had addressed the merits of his



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claims, which included an alleged Batson violation. Id. at 1171. He asserted that the trial

transcript and record had been destroyed, making it impossible to address the merits. Id. at

1172–73. We held that under the “extraordinary circumstances” of that case—the “lack of

a direct appeal, lack of a court record, his attorney’s alleged failure to obtain a transcript, lack

of appellate review of the merits of his claims”—Chapman was entitled to an evidentiary

hearing. Id. at 1174. In Brown, Brown, who had pleaded guilty, claimed in part that counsel

was ineffective. Brown, 187 So. 3d at 670. In determining whether that claim was barred, the

Court of Appeals cited Chapman as an instance in which this Court had excepted an

ineffective-assistance claim from the procedural bars due to “trial counsel’s failure ‘to ensure

[the] defendant c[ould] adequately appeal his conviction.’” Brown, 187 So. 3d at 671 (citing

Chapman, 167 So. 3d at 1173–74). Ultimately, the Court of Appeals held that the record

showed the ineffective-assistance claim had no basis and was thus time barred. Brown, 187

So. 3d at 671–73.

¶222. We find this issue is waived. A trial objection is required to preserve a Batson claim

for appeal. Thomas v. State, 517 So. 2d 1285, 1287 (Miss. 1987). Even in capital cases, “a

party who fails to object to the jury’s composition before it is empaneled waives any right

to complain thereafter.” Keller v. State, 138 So. 3d 817, 842 (Miss. 2014) (quoting Duplantis

v. State, 644 So. 2d 1235, 1245 (Miss. 1994)); see also Shaw v. State, 540 So. 2d 26, 27

(Miss. 1989) (holding that any challenge to the jury’s racial composition was waived when

Batson was not raised during the jury-selection process and the record was silent on the

venire’s racial composition). While not binding here, several federal circuit courts of appeals



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have held a Batson claim cannot be asserted in a habeas petition if the petitioner did not

object to the peremptory challenges at trial. Haney v. Adams, 641 F.3d 1168, 1171, 1171 n.6

(9th Cir. 2011) (citing McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996);

Abu–Jamal v. Horn, 520 F.3d 272 (3d Cir. 2008), vacated on other grounds by Beard v.

Abu–Jamal, 558 U.S. 1143, 130 S. Ct. 1134, 175 L. Ed. 2d 967 (2010); Allen v. Lee,

366 F.3d 319, 327–28 (4th Cir. 2004); Thomas v. Moore, 866 F.2d 803, 804 (5th Cir. 1989);

Carter v. Hopkins, 151 F.3d 872, 875–76 (8th Cir. 1998); Sledd v. McKune, 71 F.3d 797,

799 (10th Cir. 1995)).

¶223. Notwithstanding the waiver bar, Ronk fails to present a substantial showing that the

lack of record denied him a state or federal right. This case is not like Chapman, in which

no trial transcript or record was made. Furthermore, Walker v. State, 863 So. 2d 1, 28 (Miss.

2003), says counsel is not required to preserve a record of the jury’s racial composition.

¶224. Wilcher v. State, 863 So. 2d 776 (Miss. 2003), is especially insightful. There, we

rejected Wilcher’s claim that counsel was ineffective for failing to object to the State’s use

of peremptory challenges to exclude all five African-American venire members. Wilcher,

863 So. 2d at 819. We noted the record was silent on the racial composition of the venire,

making it impossible for us to determine if a Batson challenge was warranted, and if so,

whether counsel’s failure to make such challenge caused prejudice. Id. But we said even if

the State had indeed struck all five African-American venire members, Wilcher still failed

to show prejudice. Id. at 820. We explained that while defendants have a right to be tried by

a jury selected based on nondiscriminatory criteria, the Constitution does not require the jury



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to “mirror the community and reflect the various distinctive groups in the populations.” Id.

(quoting Simon v. State, 688 So. 2d 791, 806 (Miss. 1997)).

                                     CONCLUSION

¶225. Because Ronk’s claims are either barred or fail to present a substantial showing of the

denial of a state or federal right, his Motion for Leave to Proceed in the Trial Court with a

Petition for Post-Conviction Relief is denied.

¶226. LEAVE TO SEEK POST-CONVICTION RELIEF DENIED.

    RANDOLPH, P.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.,
CONCUR. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND KING, J.

    COLEMAN, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶227. While I concur with the majority’s analysis and conclusions on all other issues, I

would grant Ronk’s motion to proceed with his petition for post-conviction relief on the sole

issue of whether his counsel was ineffective during the sentencing phase of trial. Therefore,

I dissent in part.

¶228. The majority notes that, “Arguably, counsel’s mitigation investigation was

deficient[,]” but concludes that Ronk in not entitled to relief because he has not made a

substantial showing that he was prejudiced by the deficiencies. Maj. Op. ¶¶137, 143.

However, the majority downplays the issues with the mitigation investigation and subsequent

presentation.

¶229. According to the majority, Dr. Smallwood’s testimony was sufficient as to mitigation

because she uncovered “some information . . . relevant to mitigation.” Maj. Op. ¶ 138. Dr.


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Smallwood was not asked to conduct a mitigation study, and she testified specifically that

she had not done a mitigation study. Dr. Smallwood’s own report stated

       It must be noted that many variables which may provide mitigation are
       reportedly found in this man’s psychological and medical history. However,
       I do not have the benefit of those medical records. It is highly recommended
       that these and other relevant records be secured and that collateral witnesses
       be interviewed. The present examination is not a mitigation study, which is
       outside of the scope of my current practice . . . . However, as noted, a
       mitigation study is recommended.

The majority also disagrees with Ronk’s contention that no mitigation investigation

occurred–“They did some.” Maj. Op. 139. The majority again relies on Dr. Smallwood’s

evaluation as evidence of the mitigation investigation, but as discussed above, Dr.

Smallwood did not consider her evaluation of Ronk to be a mitigation study. The majority

acknowledges that “Dr. Smallwood’s report and the records that were obtained arguably

would have led a reasonable attorney to investigate further. Her report clearly signaled that

more was needed.” Maj. Op. ¶ 141 (emphasis added).

¶230. However, in spite of Dr. Smallwood’s repeated attempts to convey that her evaluation

was not a mitigation study and that Ronk’s history warranted a mitigation study, Ronk’s

counsel, and now the majority, consider her testimony and report to be good enough. I am

not persuaded by the majority’s “good enough” approach. Ronk has submitted affidavits

from his adoptive mother, his biological mother, and a member of his trial attorney team, and

all the affidavits indicate that Ronk’s adoptive parents, friends, teachers, church members,

family members, or medical professionals were not interviewed. While the majority would

find that the medical evidence Ronk submitted is “mostly cumulative,” given the lack of



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meaningful investigation and the extent of Ronk’s mental history that was not explored or

presented to the jury, I cannot agree.

¶231. Mississippi Code Section 99-39-27(5)-(6) (Rev. 2015) provides that the Court is

empowered to grant a petitioner leave to proceed on his motion for post-conviction relief in

the trial court if there is a “substantial showing of the denial of a state or federal right . . . .”

Recently, in Keller v. State 229 So. 3d 715 (Miss. 2017), the Court granted Jason Lee

Keller’s motion for leave to proceed with his petition for post-conviction relief. Keller

argued that his trial attorneys were ineffective for failing to investigate, collect, and present

mitigation evidence. Keller provided affidavits from family, friends, acquaintances, former

teachers and classmates, attorneys, and physicians to demonstrate the mitigation evidence

that an effective counsel would have discovered and presented during Keller’s sentencing.

The Court acknowledged that “Keller specifically points to the failure of trial counsel to

obtain a mitigation expert, even though Dr. Beverly Smallwood, a psychologist, who

evaluated Keller for the circuit court before trial, recommended doing so.” Id. at 716.

¶232. For the above reasons discussed and due to the similarities between the instant case

and Keller, Ronk has presented a substantial showing that a denial of a state or federal right

may have occurred. I would grant his motion for leave to proceed with his petition for post-

conviction relief in the circuit court on the sole issue of ineffective assistance of counsel

during the sentencing phase.

       KITCHENS, P.J., AND KING, J., JOIN THIS OPINION.




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