                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 95-DP-00750-SCT
RONALD CHRIS FOSTER A/K/A RON CHRIS FOSTER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:           01/18/91
TRIAL JUDGE:                HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:  LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:     ANDRE DE GRUY
ATTORNEYS FOR APPELLEE:     OFFICE OF THE ATTORNEY GENERAL
                            BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:          ALLGOOD, FORREST,
NATURE OF THE CASE:         CRIMINAL - DEATH PENALTY - POST CONVICTION
DISPOSITION:                APPLICATION DENIED - 5/16/96
MOTION FOR REHEARING FILED: 6/3/96
MANDATE ISSUED:             1/30/97




     EN BANC.


     SMITH, JUSTICE, FOR THE COURT:


¶1. This matter comes before this Court upon an Application for Leave to File Motion to Vacate
Conviction and/ or Death Sentence pursuant to our Post-Collateral Conviction Relief Statute, Miss. Code
Ann. § 99-39-1, et seq. (Supp. 1994). The crime underlying Foster's petition for relief is the shooting of a
store clerk, George Shelton, during the commission of a robbery. See Foster v. State, 639 So. 2d 1263
(Miss. 1994). The procedural history of the case shows that Foster was convicted for the crime of capital
murder and sentenced to death on January 18, 1991, in the Lauderdale County Circuit Court for the killing
of George Shelton. Foster appealed this decision raising twenty-six assignments of error, among which
were the issues of particularized findings for juvenile death penalty recipients, the "robbery-murder-
pecuniary gain" aggravator, and the failure to grant certain jury instructions. Foster v. State, 639 So. 2d
1263, 1268-70 (Miss. 1994). The conviction was affirmed, and Foster filed a writ of certiorari to the
United States Supreme Court, which was denied. Foster v. State, 639 So. 2d 1263 (Miss. 1994), cert.
denied, 115 S.Ct. 1365 (1995). In that certiorari petition, Foster again raised the issues of particularized
findings for juvenile death penalty recipients, and whether the same facts can support two separate
aggravating circumstances. A petition for rehearing ensued, and was also denied. Foster v. State, 639 So.
2d 1263 (Miss. 1994), reh'g denied, 115 S.Ct. 1992 (1995). The federal district court for the Southern
District of Mississippi had stayed his execution, to which the State has entered a motion to vacate stay. The
State's motion was recently granted on November 8, 1995.

¶2. On July 21, 1995, Foster filed with this Court his motion for post-conviction collateral relief. We stayed
the execution on July 24, 1995, and now, we turn to the merits of his petition. Foster advances one main
issue-- that he received ineffective assistance of counsel at the trial during the sentencing phase, and then
again at the appellate level. Bear in mind the following: At trial, Foster was represented by Michael R.
Farrow, Bill Cunningham, and James B. Wright. His past attorneys, on direct appeal, include James W.
Craig, Jane E. Tucker, and Andre de Gruy, all employees of the Mississippi Capital Defense Resource
Center. Farrow and Wright filed appearances for Foster's direct appeal. Currently, for the Application for
Post Conviction Relief Motion, Andre de Gruy is Foster's primary counsel. Craig and Tucker are still
Foster's attorneys because their Motion to Withdraw was denied by this Court.

¶3. Thus, in this Application presently before the Court, we essentially have one attorney of the Resource
Center alleging that Foster received ineffective assistance of counsel from members of his own firm. The
State has advanced the position that this action by the Resource Center broaches an ethical conflict in
violation of the Rules of Professional Conduct, especially Rule 1.10, comment, definition of "firm." We need
not address the State's ethical conflict issue, as there are other procedural avenues readily available to the
State to air its legitimate and pressing concerns.

¶4. A review of the issues raised by Foster reveals many to be barred, but all are without merit. We must
deny Foster's application for post-conviction collateral relief.

                                                   ISSUE

WHETHER FOSTER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

                                         DISCUSSION OF LAW

                                    Post-Conviction Collateral Relief

¶5. Post-conviction proceedings are for the purpose of bringing to the trial court's attention facts not known
at the time of judgment. Smith v. State, 477 So. 2d 191 (Miss. 1985). The Post-conviction Collateral
Relief Act provides a procedure limited in nature to review those matters which, in practical reality, could
not or should not have been raised at trial or on direct appeal. Turner v. State, 590 So. 2d 871 (Miss.
1991); Cabello v. State, 524 So. 2d 313, 323 (Miss. 1988).

¶6. Procedural bars of waiver, different theories, and res judicata and exception thereto as defined in post-
conviction relief statute are applicable in death penalty post-conviction relief application. Lockett v. State,
614 So. 2d 888 (Miss. 1992), cert. denied, 114 S. Ct. 681 (1994). We have repeatedly held that a
defendant is procedurally barred by waiver from making a challenge to a capital sentencing scheme as a
whole in a petition for post-conviction relief where the issue was capable of determination at trial and/or on
direct appeal but was not raised, and defendant failed to show cause or actual prejudice for not raising the
issue on direct appeal. Lockett v. State, 614 So. 2d 898 (Miss. 1992), cert. denied, 114 S. Ct. 681
(1994); Smith v. State, 477 So. 2d 191 (Miss. 1985). Post-conviction relief is not granted upon facts and
issues which could or should have been litigated at trial and on appeal. "The doctrine of res judicata shall
apply to all issues, both factual and legal, decided at trial and on direct appeal." Miss. Code Ann. § 99-39-
21(3) (Supp. 1994). We must caution that other issues which were either presented through direct appeal
or could have been presented on direct appeal or at trial are procedurally barred and cannot be relitigated
under the guise of poor representation by counsel.

                                        Ineffective Counsel Claim

¶7. "The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). The test is two pronged:
The defendant must demonstrate that his counsel's performance was deficient, and that the
deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687; Washington v. State, 620
So. 2d 966 (Miss. 1993). "This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot
be said that the conviction or death sentence resulted from a breakdown in the adversary process that
renders the result unreliable." Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984), citing Strickland v.
Washington, 466 U.S. at 687. "In any case presenting an ineffectiveness claim, the performance inquiry
must be whether counsel's assistance was reasonable considering all the circumstances." Stringer at 477,
citing Strickland, 466 U.S. at 688; Tokman v. State, 564 So. 2d 1339, 1343 (Miss. 1990).

     Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) . . . A fair
     assessment of attorney performance requires that every effort be made to eliminate the distorting
     effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate
     the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the
     evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range
     of reasonable professional assistance; that is, the defendant must overcome the presumption that,
     under the circumstances, the challenged action 'might be considered sound trial strategy.'

Stringer at 477; Strickland, 466 U.S. at 689. In short, defense counsel is presumed competent.
Johnson v. State, 476 So. 2d 1195, 1204 (Miss. 1985); Washington v. State, 620 So. 2d 966 (Miss.
1993).

¶8. Then, to determine the second prong of prejudice to the defense, the standard is "a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991). This means a "probability sufficient to
undermine the confidence in the outcome." Id. The question here is

     whether there is a reasonable probability that, absent the errors, the sentencer-- including an appellate
     court, to the extent it independently reweighs the evidence-- would have concluded that the balance
     of the aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695.

¶9. There is no constitutional right then to errorless counsel. Cabello v. State, 524 So. 2d 313, 315 (Miss.
1988); Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991) (right to effective counsel does not entitle
defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent
counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end.
Neal v. State, 525 So. 2d 1279, 1281 (Miss. 1987); Mohr v. State, 584 So. 2d 426 (Miss. 1991).

                                         The Mitigation Evidence
¶10. Foster claims that his trial counsel failed to adequately investigate and present mitigation evidence,
resulting in ineffective assistance of counsel at the sentencing phase. This is not a case where counsel failed
to offer any mitigating circumstances or evidence to the contrary. In addition to the testimony and evidence
revealed during the guilt phase, Foster's counsel also introduced the testimony of Stevson Foster and Lillie
Mae Foster during the sentencing phase. The list of circumstances or factors offered for mitigation and the
closing argument of counsel made at the end of the sentencing phase show that counsel did indeed
investigate Foster's case for mitigation.

¶11. The areas of mitigation on which Foster focuses his complaint are his mental health, intelligence level,
and alcohol use. Based on the arguments presented by Foster, the affidavits included in Foster's application,
and the deference given to trial counsel's abilities, the State contends that Foster has failed to meet the
requirements of proving deficiency and prejudice.

                                    1. Yet More Psychological Testing

¶12. At trial, Attorney Farrow asked the jury to consider the following mitigating factors:

      1. Ron Chris Foster was only 17 at the time of the crime;

      2. The defendant has no significant history of criminal activity;

      3. The crime was committed while the defendant was under the influence of extreme mental or
      emotional disturbance;

      4. The defendant acted under extreme duress and or under the substantial domination of another
      person;

      5. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct
      to the requirements of the law was substantially impaired;

      6. The defendant has limited intelligence;

      7. The defendant did not carry a weapon to the crime scene;

      8. As a youth the defendant suffered a head injury that impairs his mental capacity;

      9. Any circumstance or combination of circumstances surrounding the offense which reasonably
      mitigates against imposition of the death penalty;

      10. Any circumstance or combination of circumstances surrounding the defendant's life and character
      which reasonably mitigates against imposition of the death penalty;

      11. That the defendant was intoxicated during the commission of the crime;

      12. That the defendant has an eighteen month old son;

      13. Any other circumstance which you may deem mitigating.

¶13. Foster faults Farrow for not further investigating his psychiatric condition. Farrow filed a Motion for
Psychiatric Examination which was granted by the trial court. The order requested the Whitfield
psychiatrists to render an opinion regarding the present competency of Foster in relation to the
McNaughten criteria.

¶14. Now, Farrow is questioned for not providing the jury a psychological report prepared by a neutral
expert at Whitfield Mental Institution per the order stated above, and in its stead, providing school records,
to demonstrate Foster's limited intelligence level. Foster claims that had the jury been shown the Whitfield
Report, they would have discovered that he had an I.Q. of eighty, and the mental age of a thirteen year old.
He believes that these facts would have shown that he suffered from a mental disease or defect that
impaired his capacity to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law. Perhaps, the following language, from the Whitfield Report, will explain why
Attorney Farrow chose not to introduce it into evidence:

     It was the unanimous opinion of the staff present that Mr. Foster did have a rational as well as factual
     understanding of courtroom proceedings and would be able to assist his attorney in preparing a
     defense. It was also our unanimous opinion that he knew the difference between right and wrong in
     relation to his actions at the time of the crime.

     At no time during our observation of him here has Mr. Foster displayed any symptom of psychotic
     disorder or organic mental disorder. Our ward observations, former mental status observations, and
     psychological testing all supported the diagnosis of Conduct Disorder and Personality Disorder with
     Antisocial and Narcissistic Features. These diagnoses reflect an individual who tends to disregard the
     rules of society and places his own needs and desires ahead of those of other people. Mr. Foster
     tends to over-emphasize his own importance and prowess and minimize his responsibility for his
     behavior and its consequences. Because of these personality traits he may not always choose to
     cooperate with his attorney or with the court, but I believe that he is capable of cooperating if he
     chooses to. He has been involved in physical altercations both in the jail and here and this behavior
     may well continue.

¶15. This is the kind of report that would once and for all settle the question of whether Foster had the
capacity to conform his behavior to the requirements of the law; and that answer would not be favorable to
Foster. Admitting such a damaging informational document into evidence would surely leave the jury with
the impression that Foster knew right from wrong and he could not care less about his actions or the
consequences thereof. It would defeat his entire defense strategy that others encouraged and convinced him
to jump over the counter and rob the store clerk, and that his feeble mind was too weak not to succumb to
the influence of others. Defense counsel's tactical decision not to investigate psychological evidence did not
deprive defendant of effective assistance of counsel at sentencing phase of capital murder trial where
defense counsel could have judged that psychological report would have been harmful. Wiley v. State,
517 So. 2d 1373 (Miss. 1987), cert. denied, 486 U.S. 1036, reh'g denied, 487 U.S. 1246 (1988).
Nothing in this report would support an argument that a reasonable attorney would present such damaging
information to the jury or conduct further investigation into Foster's mental state. Ake v. Oklahoma, 470
U.S. 68 (1985), sets forth the framework whereby indigent defendants are entitled to independent expert
assistance. However, unlike Ake, Foster did not attempt to present the insanity defense, and the State did
not argue future dangerousness. The State did not use expert testimony regarding Foster's mental health;
therefore, Foster needed no assistance for cross-examination. The doctors at Whitfield, after forty-four
days of examination and observance, opined that Foster was determined to be a violent and uncooperative
person capable of choosing to conform. Put another way, Foster was violent and uncooperative by choice.
The Whitfield doctor's examination revealed that Foster was competent to stand trial, completely sane at the
time of the offense, and totally free of any medically cognizable mental dysfunction. Thereafter, Foster had
no good faith argument to request further psychiatric/psychological expert assistance for purposes of
mitigation. Based on this report by court-appointed, neutral experts, Foster was mentally sound but in need
of an attitude adjustment. In no way could such information by deemed mitigating.

¶16. The State points out that Foster has presented no evidence that counsel did not inquire further about
such possibilities from the doctors at Whitfield. Foster has not explained how the additional expert
assistance could have been made available to an indigent defendant at trial following the report returned by
neutral experts. Foster's only support comes from the affidavit of Dr. Zimmerman. Dr. Zimmerman supports
the diagnosis of the experts at Whitfield, but he claims that such a diagnosis could be used for mitigation.
Upon reading the explanation of the diagnosis presented by the court-appointed, neutral experts at
Whitfield, and considering the convenient explanation presented by Foster's own expert, the State contends
that the Whitfield explanation is more plausible. We agree. See McCoy v. Cabana, 794 F.2d 177, 183
(5th Cir. 1986) (decision to introduce or withhold a psychiatric report usually considered a tactical decision)
.

¶17. Attorney Farrow should be commended for circumventing such a document, and still devising a trial
strategy to let the jury understand that Foster had low intelligence (via school records) and had suffered two
head injuries which resulted in strange behavior thereafter (via testimony from his parents). Generally,

      strategic choices made after thorough investigation of law and facts relevant to plausible options are
      virtually unchallengeable; and strategic choices made after less than complete investigation are
      reasonable precisely to the extent that reasonable professional judgments support the limitations on
      investigations. 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 decision not to investigate must be directly assessed for reasonableness in all circumstances,
      applying a heavy measure of deference to counsel's judgments.

Strickland, 466 U.S. at 690-91. A decision to introduce or withhold a psychiatric report is a tactical
decision. Wiley v. State, 517 So. 2d 1373 (Miss. 1987), cert. denied, 486 U.S. 1036, reh'g denied, 487
U.S. 1246 (1988); Marks v. State, 532 So. 2d 976 (Miss. 1988) (defendant did not establish ineffective
assistance of counsel where record indicated that psychiatric examination was performed, but results were
not shown, and evidence indicated that defendant's alleged diminished capacity, if any, resulted at least in
part from voluntary intoxication); McCoy v. Cabana, 794 F.2d 177, 183 (5th Cir. 1986); Johnson v.
Cabana, 661 F.Supp. 356 (S.D.Miss.), aff'd, 818 F.2d 333 (5th Cir.), cert. denied, 481 U.S. 1061
(1987) (trial counsel's failure to present mitigating evidence of mental impairment did not render assistance
ineffective where the failure was not based on error or incompetence but, rather, on considered conclusion
that the evidence was insubstantial).

¶18. We find that Farrow met his burden of behaving as reasonable counsel. He ordered a psychological
evaluation. He got the results. He knew the evidence would not be absolutely convincing for the jury. From
this document, the more plausible conclusion was that Foster had an attitude problem rather than an
emotional disturbance. Thus, Farrow chose an alternate course to present the "limited intelligence" and
"mental health" mitigators. We find that Farrow made a reasonable decision not to pursue further
psychological testing once the results from the Whitfield Report were reported to the court. This was a
reasonable decision not only at the time it was made, but even in hindsight.

¶19. There was no reason to delve further into the exact level of his I.Q.. His school transcripts revealed
that he was both a poor and truant student. This factor was presented to the jury as mitigator number 6. His
parents' testimony also leaves the impression that they weren't exactly stellar in their intellect either. A juror
may not comprehend the implication of Borderline Intellectual Function evidenced by an I.Q. of eighty;
however, the average juror does comprehend the failure to complete eighth grade, grades like C and D,
yearly averages of 58 in English, 46 in math, 52 in history, 62 in industrial arts, 74 in science, and forty days
of missed school. A juror also comprehends the educational environment of a defendant whose father
cannot read or write, and parents who cannot understand or respond to simple questions. The record
reflects that Foster's father could not even read the letters on his son's report card enough to determine
whether his son was doing well or poorly in school. Once again, Foster has failed to show deficiency and
prejudice. Nor did Farrow need to further investigate the two head injuries Foster suffered as a youth. His
parents' testimony revealed that the injuries occurred and Foster acted strangely thereafter. In light of the
Whitfield Report which indicated that no organic mental disorder existed, Farrow cannot be faulted for not
further investigating this avenue, as it would lead to a dead-end. Neither Farrow, nor his current attorneys,
have been able to show any kind of medical documentation evidencing that Foster changed in personality
due to those head injuries. The parental pleas and the school transcripts were the "the best argument he
could make given the circumstances under which he found his client." See Faraga v. State, 514 So. 2d
295, 308 (Miss. 1987) (where it was alleged that counsel admitted too much, but the Court found that his
decision was tactical in order to gain jury's confidence and further found that failure to present expert
psychological testimony at sentencing phase was not ineffective assistance of counsel).

¶20. In the past, we have reversed and remanded death penalty cases involving ineffective counsel claims
where all the defense counsel had done was admitted to the guilt and begged the jury for mercy.
Woodward v. State, 635 So. 2d 805, 809 (Miss. 1993). In Woodward, the psychological testing
revealed that Woodward could differentiate between right and wrong, but nonetheless suffered from a
severe mental disturbance at the time of the crime. Id. at 810. We found that trial counsel was ineffective in
not realizing that they could offer the psychiatrist's testimony without opening the door to unlimited character
evidence. Id. at 810.

¶21. Here, unlike Woodward, Foster's psychiatric evaluation from Whitfield did not indicate that he was
suffering from a severe mental disturbance at the time of the crime. Thus, to introduce it would be to
introduce all of the damaging statements as previously discussed. Moreover, Attorney Farrow did not
throw his client upon the mercy of the court. He introduced school records and the testimony of his parents
who stated their love for him. He discussed the fact that Foster did not bring a weapon to the store. He
mentioned that Foster had a very young child. He emphasized that Foster had drunk twelve beers before
committing the crime. Again, we find that Attorney Farrow acted reasonably.

¶22. Based on the foregoing, we find that under the first prong of the Strickland test Farrow's conduct
was not deficient in presenting the "limiting intelligence" and "mental health" mitigators. There is no need to
proceed to the second prong of prejudice due to deficiency, as none existed when foregoing the Whitfield
Report.

                  2. Man is a Product of His Environment-- So it Can't be His Fault
¶23. Farrow is also questioned for not presenting more information about Foster's upbringing, childhood,
and dysfunctional family life. Foster claims that had Farrow inquired more into his past, and shown that his
father was an alcoholic, the jury would have understood what a traumatic childhood he must have lived, and
thus, been able to weigh another mitigator into better explaining the robbery-murder.

¶24. Foster essentially claims that more witnesses than just his mother and father should have been called to
the stand. His siblings and friends should have also testified, and his parents should have been better
prepared to testify. Foster claims that his siblings would have told the jury that his father was a drunkard
and his older brothers served as his drinking mentors. His friends would have attested to the fact that he
started drinking at age twelve and that his resulting abrasive behavior cost him their companionship. Foster
claims that this part of his family history would have supported the mitigating factors of "lack of self-control,
" "extreme disturbance," and inability to "conform his conduct to the requirements of the law."

¶25. Foster cites to the lone dissenter in Pruett v. State, 574 So. 2d 1342, 1347-48 (Miss. 1990)
(Anderson, J., dissenting), who alone stood for the proposition that defense counsel has a critical and
crucial duty in capital cases to conduct extensive pretrial investigations in the defendant's life history,
emotional and psychological make-up, upbringing, relationships, friendships, formative and traumatic
experiences, personal psychology and present feelings. We are not sure what such information would have
to do with the condition that Foster was in at the time he decided to rob. Prosecution witness, Vincent
Harris, testified that Foster drank twelve beers by the time he made a decision to rob the store. Farrow was
more than happy to seize upon such testimony and let the jury know that the fact that Foster consumed
alcohol before entering into the crime was conceded for the purpose of meeting the mitigator of intoxication.
Farrow made the following argument during closing:

      Well, ladies and gentlemen who said he did use alcohol? Who did ? Who said he'd had twelve beers
      that night? Who said it? You know who said it. Vincent Harris said it. So was he intoxicated? Would
      twelve beers make a seventeen year old with his frame intoxicated? That's another mitigating factor
      for you to consider because you can believe Vincent Harris on that. The State wants you to believe
      Vincent Harris.

It would have been a disservice to have friends and family brought in to explain the longstanding history of
alcoholism because a jury could have inferred a high tolerance level and not credited the twelve beers as
being enough to intoxicate such a hard drinker. The affidavits do not paint a picture of alcoholic stupor and
abusive behavior as Foster claims. Where there is no showing that interviewing additional witnesses would
produce a different outcome, petitioner has failed to show that he was denied right to effective assistance of
counsel. U.S. v. Green, 882 F.2d 999 (5th Cir. 1988); See also Neal v. State, 525 So. 2d 1279 (Miss.
1987) (defendant was not denied effective assistance of counsel due to counsel's failure to call additional
witnesses at sentencing phase to prove details of defendant's life, where counsel called defendant's mother
as witness, and mother told defendant's life story). We hold that Foster's counsel made reasonable, strategic
decisions to present the most persuasive evidence in mitigation and to cease investigation when the results
were no longer helpful. As set forth in Strickland and adopted by this Court in Stringer, counsel at
sentencing provided adequate and effective assistance. There is no merit to this issue.

      3. Whether Defense Counsel's Failure to Request Transfer to Youth Court Amounted to the
      Ineffective Assistance of Counsel

¶26. Foster argues that the death penalty is unconstitutional due to a lack of particularized finding by the
circuit court in retaining original jurisdiction over Foster and not transferring him to the youth court. This
issue has already been challenged on direct appeal. See Foster v. State, 639 So. 2d 1263, 1292 (Miss.
1994). Foster has merely camouflaged the issue by couching the claim as ineffective assistance of counsel.

¶27. We have repeatedly held that a defendant is procedurally barred by waiver from making a challenge to
a capital sentencing scheme as a whole in a petition for post- conviction relief where the issue was capable
of determination at trial and/or on direct appeal but was not raised, and defendant failed to show cause or
actual prejudice for not raising the issue on direct appeal. Lockett v. State, 614 So. 2d 898 (Miss. 1992),
cert. denied, 114 S. Ct. 681 (1994); Smith v. State, 477 So. 2d 191 (Miss. 1985). Thus, the issue of
whether the death penalty is unconstitutional due to a lack of particularized finding in the youth court is a
procedurally barred issue. We cannot consider the merits of this issue, as it was already dealt with on the
direct appeal. Foster must remember that post-conviction relief is very limited and deals with only those
issues undetectable at trial or the appellate level. For the purposes of this petition, the only question that
Foster could pose is whether Foster's trial attorney was ineffective by failing to request a transfer
proceeding from circuit court to youth court, and if ineffective, whether this error prejudiced his defense.

¶28. The governing statute at the time of Foster's trial allowed "the circuit judge, upon a finding that it would
be in the best interest of such child and in the interest of justice, . . . at any stage of the proceedings prior to
the attachment of jeopardy, [to] transfer such proceedings to the youth court for further proceedings . . . ."
Miss. Code Ann. § 43-21-159 (Supp. 1994). As we stated in the direct appeal, a youth court generally
engages in a certification procedure before transferring the juvenile to a circuit court, however, "[u]nder
Mississippi law, these juvenile certification procedures do not take place if a child commits an act, 'which if
committed by an adult would be punishable under state or federal law by life imprisonment or death, . . .
because original jurisdiction is vested in the circuit courts under such circumstances.'" Miss. Code Ann.
§ 43-21-151(1) (Supp. 1992). Foster v. State, 639 So. 2d at 1293. Thus, under the law, Foster at age
17, could be "tried and convicted of a capital offense and receive the death sentence, without there ever
having been a preliminary determination in the youth court that he should be tried as an adult." Foster v.
State, 639 So. 2d at 1293.

      Mississippi law clearly allows a person under the age of eighteen years, charged with a capital
      offense, to request by proper motion that the circuit court conduct a special hearing, considering the
      person's age, lack of prior offenses, likelihood of successful rehabilitation and other factors which
      favor sending the case to the youth court rather than continuing in circuit court. Had such a procedure
      been requested, Foster would have had the same individualized consideration in circuit court that
      would have been available to him in a certification hearing in the youth court.

Foster v. State, 639 So. 2d at 1297. Thus, we must analyze the issue in terms of whether Farrow was
reasonable for not requesting such a motion, and whether such failure resulted in prejudicing Foster's
defense.

¶29. In this regard, Foster's application for post-conviction collateral relief cites no authority stating that it is
ineffective for counsel to not request a special hearing to determine transfer to youth court. He merely states
that trial counsel must not have known that this procedure was available to him, and that failure to know this
constitutes a failure to know the law, and thus, is a textbook example of deficiency. The record in no way
indicates that trial counsel was unaware of the statutes in regard to juvenile court versus circuit court. In
fact, the record shows that Foster's counsel recognized that juvenile law concerning confessions does not
apply in a suppression hearing when the defendant is being tried as an adult, but he was making a good faith
argument for an extension of the law. As we previously stated, the issue of whether a capital case juvenile is
transferred back to a youth court is within the sound discretion of the circuit judge.

¶30. Nevertheless, for the sake of argument, even assuming trial counsel's failure to request such a finding
was legally unreasonable, there was no prejudice or harm to Foster. Foster's claim fails because he has not
shown prejudice. The decision to transfer from circuit court to youth court is within the sound discretion of
the trial judge. This fact is evidenced by the word "may" used in the statute. The standard upon which the
trial court may make such a decision is "in the best interest of such child and the interest of justice." Had
Farrow requested such a finding, the trial judge would have found that Foster was seventeen and one-half
years old, on the brink of eighteen years of age, and while he did not have any significant criminal history, he
had a violent, selfish nature, exhibited uncooperative tendencies and according to the Whitfield Report, had
the maturity to know right from wrong. Attorney Farrow would be hard-pressed to convince the judge that
his client would not have committed these types of acts six months from the time of the crime, and it was
only because he lacked those critical six months that he committed the crimes due to his immaturity. These
elements will hardly send a case back to youth court. The United States Supreme Court only requires that
there be "individualized" consideration given to capital offenders under eighteen years of age, not necessarily
"particularized" findings. Stanford v. Kentucky, 492 U.S. 361, 375, reh'g denied, 492 U.S. 937 (1989).
We find that Foster's age and his lack of a prior history of criminal activity were presented; he did indeed
receive individualized consideration as to his maturity and moral culpability. Additionally, counsel made a
good faith effort to extend the statutes concerning a juvenile confession where Foster was being tried as an
adult. Thus, even if there was no full application of Mississippi's juvenile transfer statute, it was firstly, not
required, and secondly, not resulting in any prejudice. The issue is procedurally barred. Alternatively,
considering the merits of this issue; we find none exists. No true new issues have been raised. However, any
attempt to raise a new legal theory or ground at this point would be procedurally barred. Miss Code Ann. §
99-39-21(2)(Supp. 1994), states:

      (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal
      theory or theories shall constitute a waiver of all other state or federal legal theories which could have
      been raised under said factual issue; and any relief sought under this chapter upon said facts but upon
      different state or federal legal theories shall be procedurally barred absent a showing of case and
      actual prejudice.

Foster's petition does not meet the requirements to overcome the procedural bar.

¶31. In addition, Foster is attempting to relitigate this issue under a new heading. The true color of Foster's
claim is that his death sentence is unconstitutional because he was placed in adult court without
particularized findings. His main concern is the particularity of his age. Foster's age was individually
considered by the jury. Foster was born January 8, 1972 and committed the crime of capital murder on
June 10, 1989 -- i.e. he was seventeen years, six months and two days old. This was no child; this was a
man. The jury was asked to consider his age as one of the mitigating circumstances. In addition, the primary
concern of the United States Supreme Court regarding the death penalty and defendants under age eighteen
was individualized consideration, not particularized findings. Stanford v. Kentucky, 492 U.S. 361, reh'g
denied, 492 U.S. 937 (1989). Such findings only assured such consideration, but the Court did not make
such findings constitutionally required. In addition, when the United States Supreme Court determined that
the death sentence as per se unconstitutional when applied to children under the age of sixteen, the court
had utilized its statutory provision which allowed certification of a child to be tried as an adult. Thompson
v. Oklahoma, 487 U.S. 815 (1988). Therefore, particularized findings cannot be the constitutional key. As
for "standards of common decency," the Court stated that out of thirty-seven states recognizing the death
penalty, twelve states refusing to allow the death sentence for a seventeen year old was not enough.
Stanford, 492 U.S. 361. Common standards of decency within society must not have changed much since
Stanford and Thompson because the Court denied certiorari in this issue for Foster in 1995. In reality, this
claim has been previously determined by this Court on direct appeal. Miss. Code Ann. § 99-39-21(3)
(Supp. 1994) reads, "(3) The doctrine of res judicata shall apply to all issues, both factual and legal,
decided at trial and on direct appeal." No cause or prejudice standards are included in the statute for a bar
of res judicata. This Court addressed this claim on the merits as well as recognizing a procedural bar in
Foster, 639 So.2d at 1292-98. In fact, Foster also raised the same claim in his petition for writ of
certiorari before the United States Supreme Court, but his petition was denied and rehearing was denied.
Foster v. Mississippi, 115 S.Ct. 1365, reh'g denied, 115 S. Ct. 1992 (1995).

¶32. Based on the foregoing arguments, Foster's claim cannot succeed. Foster has restated an old claim
under a new title. Foster has not met the standard of Strickland for an ineffective assistance of counsel
claim and no new legal or factual theory has been presented. Foster has not met the requirements necessary
to overcome a procedural bar. This repetitive claim falls under the doctrine of res judicata.

     4. Whether Failure to Raise on Appeal The Lower Court's Denial of Certain Jury
     Instructions Amounted to Ineffective Assistance of Counsel

¶33. At trial, the judge refused defendant's jury instruction D-10 regarding manslaughter. The judge granted
instruction SGP-5, over defense objection. Foster, again found his trial counsel as being ineffective. This
issue was not raised on appeal. Instruction D-10 read:

     If you find that the State of Mississippi has failed to prove each and every element of the offense of
     capital murder and of murder beyond a reasonable doubt, and you have therefore found that
     defendant not guilty of capital murder and of murder, then you may proceed to determine whether the
     defendant is guilty of manslaughter.

     If you find from the evidence in this case beyond a reasonable doubt that:

     1. The deceased, George Shelton, was a living person, and

     2. Ron Chris Foster shot and killed George Shelton without malice aforethought, and

     3. Ron Chris Foster was under the bona fide belief that it was necessary for him to shoot George
     Shelton in order to prevent George Shelton from inflicting death or great bodily harm upon Ron Chris
     Foster, and

     4. That this belief of Ron Chris Foster was without reasonable cause, and

     5. Not in necessary self-defense,

     then you shall find the defendant guilty of manslaughter. If the State has failed to prove any one or
     more of the elements beyond a reasonable doubt, then you shall find the defendant not guilty of
     manslaughter.
The court granted instruction SG-5 reading:

      The Court instructs the Jury that under the laws of the State of Mississippi a person who provokes a
      difficulty or attempts to commit a crime upon another, and remains the aggressor throughout that
      difficulty cannot invoke the plea of self defense; and if you find from the evidence in this case beyond
      a reasonable doubt that the defendant, Ron Chris Foster, provoked the difficulty with George Shelton,
      or attempted to commit the crime of robbery upon him, and remained the aggressor in the difficulty,
      then the defendant cannot now invoke the plea of self-defense.

¶34. Another one of Foster's manslaughter instructions was granted, and so was a self-defense instruction.

¶35. Instruction D-18 reads:

      The court instructs the jury if you find from the evidence that Ron Chris Foster was not engaged in the
      commission of robbery and that he was not the initial aggressor in the killing of George Shleton [sic],
      then such killing may be justifiable on the grounds of self defense. If you further find that defendant
      had reasonable grounds to apprehend a design on the part of George Shelton to kill him or to do him
      some great bodily harm, and that the danger to Ron Chris Foster was either actual, present and
      urgent, and that Ron Chris Foster had reasonable grounds to apprehend a design on the part of
      George Shelton to kill him or to do him some great bodily harm, and that he had reasonable grounds
      to apprehend that there was imminent danger of such design being accomplished.

      It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

Instruction D-17, states in part:

      If you find the defendant not guilty of the crime of capital murder and of murder, and further find from
      the evidence that Ron Chris Foster was not engaged in the crime of robbery or in commission of an
      act eminently dangerous to others and evincing a depraved heart, regardless of human life, although
      without any premeditated design to effect the death of George Shelton, then you may continue your
      deliberations to determine whether or not the defendant is guilty of the crime of manslaughter. The
      court instructs the jury that manslaughter, as distinguished from murder, is the killing of a human being
      without malice, in the heat of passion, by the use of a weapon, without authority of law, and not in
      necessary self-defense.

      If you believe from the evidence in this case beyond a reasonable doubt that Ron Chris Foster did :

      1. . . .

      2. Kill George Shelton . . . without malice, in the heat of passion,

      3. Or by the use of a dangerous weapon,

      Then, in that event, you may find Ron Chris Foster guilty of the crime of manslaughter. . . .

¶36. The issue of whether the instructions granted or rejected were error by the trial judge should have
been raised on the direct appeal. Procedural bars of waiver, different theories, and res judicata and
exception thereto as defined in post-conviction relief statute are applicable in death penalty post-conviction
relief application. Lockett v. State, 614 So. 2d 888 (Miss. 1992), cert. denied, 114 S. Ct. 681 (1994).
Post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial
and on appeal. "The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial
and on direct appeal." Miss. Code Ann. § 99-39-21 (3) (Supp. 1994). Thus, this Court will not engage in a
full blown argument about whether the instructions were erroneously excluded or whether those admitted
were sufficient, as those issues are res judicata.

¶37. Though procedurally barred, what is of concern is whether the appellate counsel acted reasonably in
not raising the instructions issue on appeal. The standard for considering ineffective assistance of counsel is
the same for appellate performance as it is for trial performance. Culberson v. State, 580 So. 2d 1136,
1139 (Miss. 1990), cert. denied, 502 U.S. 943 (1991). Defense counsel assigned to prosecute appeal
from criminal conviction does not have a constitutional duty to raise every nonfrivolous issue requested by
defendant. Jones v. Barnes, 463 U.S. 745, 749 (1983). Based upon the above jury instructions, we hold
that the jury was presented a complete and accurate version of the law in this area via these two
instructions. The instructions read as a whole present both theories of manslaughter. See Cook v. State,
467 So. 2d 203, 207 (Miss. 1985) (discussing two theories of manslaughter). We find that because the law
was so thoroughly covered, Foster's appellate attorneys were completely reasonable for not bickering over
some obscure jury instruction being denied. If one instruction is denied, and the essence of the rejected
instruction is granted via another instruction, then the issue has been fairly presented to the jury. Cook v.
State, 467 So. 2d 203, 208 n.2 (Miss. 1985); Keys v. State, 635 So. 2d 845 (Miss. 1994) (since the
jury did not find itself precluded from considering a self-defense plea, the instructions were valid).

      5. Whether the Failure to Object to Aggravating Circumstances Constitutes Ineffective
      Assistance of Counsel

¶38. This issue, including its three subsections, was raised in the direct appeal, and is not suitable for review
under a post-conviction collateral relief petition, as it is procedurally barred. Foster counters with the
argument that procedural bars do not apply to consideration of aggravating circumstances. Foster attempts
to lure this Court into the same dangerous waters of inconsistency which cause the special treatment
afforded the "especially heinous, atrocious, and cruel" aggravator. See Smith v. Black, 970 F.2d 1383,
386-87 (5th Cir. 1992). The procedural bar established for post-conviction relief can be due to failure to
make a contemporaneous objection at trial or on failure to raise the issue on appeal. Such objections and
issues are not new. Aggravating circumstances do not get special treatment, but issues receiving inconsistent
applications of procedural bars do get special treatment on federal review. Without relaxing the bar, we
independently consider the merits of whether failure to object to these three aggravators constituted
ineffective assistance of counsel.

                                        a. The Robbery Aggravator

¶39. Foster believes that because the jury found that he committed capital murder in the commission of the
crime of robbery, that this aggravating circumstance duplicates an element of the offense of capital murder,
and thereby the double counting is constitutionally infirm for it does not narrow the class of death-eligible
defendants in a rational manner. Though procedurally barred, on the merits, this Court has spoken to this
exact question in Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).

      He [being the defendant Leatherwood] reasons that since robbery is an element of capital murder,
      that it should not also be used as an aggravating circumstance as permitted under Mississippi Code
      Annotated section 97-3-19 (Supp. 1982). The appellant suggests that this causes him to begin the
      sentencing stage with one aggravating circumstance against him and thus, starts at a disadvantage
      rather than with a clean slate. He argues that the weighing process is already stacked against him
      before he even gets up to offer anything in mitigation; and that his practice brings us precariously close
      to the old ways of mandatory, arbitrary statutes condemned in Furman v. Georgia, 408 U.S. 238,
      92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972).

      We do not agree with the appellant's contention. Under our capital murder statute, when an accused
      is found guilty of capital murder arising out of a robbery, he then becomes subject to a jury finding that
      he should not be executed if the jury feels that the facts justify it. However, his execution is not
      mandated and the jury may properly find that he should be sentenced to life in prison. They may so
      find whether the defendant puts on any evidence of mitigating circum stances or not. This is a far cry
      from the old statute which mandated execution upon conviction of a capital offense.

Leatherwood v. State, 435 So. 2d at 650. Because we have already answered this question, there was no
reason for counsel to object to the underlying felony being counted as an aggravator. This Court has
already upheld the use of underlying offense as an aggravating circumstance in keeping with the United
States Supreme Court's ruling in Lowenfield v. Phelps, 484 U.S. 231 (1988). This Court adopted
Lowenfield in Ladner v. State, 584 So. 2d 743, 763 (Miss. 1991). See also Pinkney v. State, 538 So.
2d 329 (Miss. 1988), cert. granted and judgment vacated by Pinkney v. Mississippi, 494 U.S. 1075
(1990).

                                    b. The Avoiding Arrest Aggravator

¶40. Foster argues that there was insufficient evidence to prove the aggravator, "[t]he capital offense was
committed for the purpose of avoiding or preventing a lawful arrest." First, this claim is procedurally barred
under Miss. Code Ann. § 99-39-21. No objection was made on these grounds at trial, and this claim was
not raised on appeal. Therefore, without making the necessary showing of cause and actual prejudice, this
claim is barred from belated consideration on post-conviction review. Although procedurally barred,
alternatively, considering the issue on the merits, this Court has stated:

      [i]f there is evidence from which it may be reasonably inferred that a substantial reason for the killing
      was to conceal the identity of the killer or killings to "cover their tracks" so as to avoid apprehension
      and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this
      aggravating circumstance.

      Under this construction the Court properly submits this aggravator to the jury if evidence existed from
      which the jury could reasonably infer that concealing the killer's identity, or covering the killer's tracks
      to avoid apprehension and arrest, was a substantial reason for the killing.

Carr v. State, 655 So. 2d 824, 853-54 (Miss. 1995); See also Chase v. State, 645 So.2d 829, 856-58
(Miss. 1994); Hansen v. State, 592 So. 2d 114, 152-53 (Miss 1991), cert. denied, Hansen v.
Mississippi, 504 U.S. 921 (1992); Lanier v. State, 533 So.2d 473, 490 (Miss. 1988); Leatherwood v.
State, 435 So. 2d at 651, Tokman, 435 So.2d at 671. At trial, Vincent Harris, Foster's friend, testified
that Foster shot Shelton as Shelton attempted to call the police "because George [Shelton] would know his
face." Thus, there was evidence from which it could be inferred that Foster killed Shelton to cover his
tracks or conceal his identity. At the point Foster shot Shelton, Foster had wrested away the gun, had
complete possession of the gun, and could have walked out of the store without further interference from
Shelton. He shot Shelton as he tried to place a phone call to the police. Thus, it appears that the substantial
reason behind the killing was for the purpose of avoiding or preventing a lawful arrest. Therefore, Foster's
counsel was not ineffective in not challenging this aggravator.

¶41. Again, this issue is procedurally barred, and alternatively, on the merits, it also fails.

                                    c. The "Pecuniary Gain" Aggravator

¶42. Foster contests the double use of the "robbery" and "pecuniary gain" aggravators. This claim was
already discussed on appeal, and found to be meritless. Foster v. State, 639 So. 2d at 1298-99. Thus,
again we find this issue is procedurally barred as it was either capable of or determined on appeal. Miss.
Code Ann. § 99-39-21(3) (Supp. 1994). Even though subject to res judicata, the only question we can
address is whether the failure to object to the weighing of the "robbery" aggravator and the "pecuniary gain"
aggravator constitutes ineffective assistance of counsel. Foster cites to Willie v. State, 585 So. 2d 660
(Miss. 1991), as holding that a jury cannot doubly weigh the commission of the underlying felony and the
motive behind the underlying felony as separate aggravators. This is true. However, this principle is only
applicable prospectively. Willie v. State, 585 So. 2d 660, 681 (Miss. 1991); Jenkins v. State, 607 So.
2d 1171, 1182-83 (Miss. 1992); Foster, 639 So. 2d at 1298. "Foster was convicted and sentenced in
January 1991. Willie v. State was handed down in July 1991." Foster, 639 So. 2d 1263, 1298 n.3
(Miss. 1994). Thus, at the time of Foster's trial in January 1991, his counsel had no basis to object because
Willie, which prohibits the double counting for the same conduct, applies prospectively, as of July 1991.
The same clear explanation was given by this Court in Mack v. State, 650 So.2d 1289, 1326 (Miss.
1994); Chase, 645 So.2d at 858-59; Conner v. State, 632 So.2d 1239, 1269 (Miss. 1993), cert.
denied, Conner v. Mississippi, 115 S.Ct. 314 (1994); see also Carr, 655 So.2d at 852. Therefore,
under the law at the time of the trial, Attorney Farrow cannot be said to have been in error for not objecting
to the stacking.

      6. Whether Trial Counsel's Failure to Object and Otherwise Preserve Reversible Error
      Constitutes Ineffective Assistance of Counsel

¶43. Here, Foster puts in a vague overly broad catch-all assignment of error in his petition for post-
conviction relief. He states that under the "totality of the circumstances" Foster's counsel's effectiveness is
lacking as he failed to properly preserve claims in the trial court of numerous issues of judicial and
prosecutorial misconduct, citing Foster v. State, 639 So. 2d 1263, 1282, 1286, 1287, 1289, 1290, 1291,
1302 (Miss. 1994). Foster believes that these unspecified assignment of errors that exist on the cited pages
cumulatively prejudiced his defense. No further argument is provided. "[I]n order to receive a hearing on [a]
claim of ineffective assistance, the post-conviction applicant to this Court must demonstrate with specificity
and detail the elements of the claim." Woodward, 635 So. 2d at 808. (emphasis added). Here, Foster has
failed to do so and makes us guess at what he is asserting is ineffective counsel. Vague allegations of failure
of counsel to object does not meet the burden of proving ineffective assistance of counsel. Knox v. State,
502 So. 2d 672 (Miss. 1987).

¶44. In the direct appeal, every assignment of error was deliberated on and addressed by this Court.
Foster v. State, 639 So. 2d 1263, 1272-1304 (Miss. 1994). Even the assignment of error that alleged
that the "cumulative error in this case requires a reversal in Foster's death sentence," was addressed. Id. at
1303. Thus, the rehashing of the cumulative errors issue is res judicata. The only issue this Court could
possibly answer faced with this overly broad and vague assertion is whether the alleged cumulative errors of
counsel was sufficient enough to prejudice Foster's defense. Basically, Foster hopes that this Court will
abandon the proof of prejudice requirement as expressed in Strickland and adopted in Stringer in favor
of an inference of prejudice which has been outright rejected by the United States Supreme Court in
United States v. Cronic, 466 U.S. 648 (1984). See also Schwander v. Blackburn, 750 F.2d 494,
501-502 (5th Cir. 1985). It is a well known principle that where there is no error in any one of the alleged
assignment of errors, there can be no error cumulatively. Davis v. State, 660 So. 2d 1228, 1261(Miss.
1995); Wilburn v. State, 608 So. 2d 702, 705 (Miss. 1992) (where there is no reversible error in any
part, there is no reversible error to the whole). Thus, even on the merits, this issue fails to prove ineffective
assistance of counsel.

                                                CONCLUSION

¶45. Foster's post-conviction collateral relief application is denied for the reasons set forth herein. Foster
failed to prove that he was rendered ineffective assistance of counsel at either the trial or the appellate stage.

¶46. APPLICATION FOR LEAVE TO FILE POST-CONVICTION COLLATERAL RELIEF
MOTION TO VACATE CONVICTION AND/OR DEATH SENTENCE DENIED.

LEE, C.J., PRATHER, P.J., PITTMAN AND ROBERTS, JJ., CONCUR. BANKS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J. McRAE
AND MILLS, JJ., NOT PARTICIPATING.




      BANKS, JUSTICE, DISSENTING:


¶47. Because I believe that the majority loses sight of our task with regard to this petition and because it
makes certain other pronouncements at odds with our statutory death penalty scheme, I dissent. (1)

                                                        I.

¶48. The petition before us today asks that we grant Foster permission to file a motion for post-conviction
relief in the trial court. While he does suggest that the supporting documents filed with us are of sufficient
strength to grant him relief today, he does not thereby abandon any claim to have his day in court at the trial
level to adduce such additional proof as may be required to convince that court to vacate its judgment. He
simply follows the procedure statutorily prescribed which demands that after affirmance by this Court
application be made here for permission to seek relief below. Miss. Code Ann. § 99-39-7 (1972).

¶49. As I perceive our task then, the question is not whether there is sufficient proof before us to vacate the
judgment but rather whether a colorable claim has been stated which should, in fairness, be presented to the
trial court for resolution under the provisions of the act. Put differently and in consonance with our
precedents, we must determine whether the petition is "sufficient to show probable cause" for the relief
requested. Rogers v. State, 241 Miss. 593, 130 So. 2d 856 (1961);(2) Yates v. State, 189 So. 2d 917
(Miss. 1966). We have granted leave where there was doubt concerning its viability. Thompson v. State,
188 So. 2d 239 (Miss. 1966). A grant of leave to file entitles the petitioner to the consideration of the claim
by the trial court, not the relief requested. Rogers v. State, 241 Miss. at 594. I believe that Foster has
presented a colorable claim of ineffective assistance of counsel during the sentencing phase sufficient for
probable cause, and that he should be allowed an opportunity to substantiate that claim in the trial court.

¶50. Foster asserts through affidavits that there was a substantial evidence of familial alcohol abuse as well
as expert testimony concerning the effects of that abuse and environment. He asserts that this evidence
would have provided substantial support for the mitigating circumstances relied upon by counsel. Trial
counsel, inexplicably according to Foster, failed to discover and use this evidence. He also failed to use
evidence at hand, the Whitfield report, to the extent that it was helpful to his defense.

¶51. We are dealing with a death penalty decision, one which each individual juror is compelled to make,
based upon a personal view of the import of the evidence concerning aggravating and mitigating
circumstances. Under these circumstances it is impossible to say with comfort what failures negatively
impacted upon Foster's plea for life.(3) It follows that these failings cannot be deemed to have "prejudiced"
Foster. It is not for the State or this court to determine which of the expert explanations of Foster's true
mental and emotional condition is the more "plausible." Majority opinion, ante p. 11. The matter should be
considered by the trial court under the provisions of our Post-Conviction Collateral Relief Act.

                                                      II.

¶52. Additionally, I disagree with the suggestion that the question whether there is a lack of evidence to
support an aggravating circumstance is subject to a procedural bar. Our statutory scheme charges us
specially with the duty of examining the evidentiary basis for the finding of an aggravating circumstance.
Miss. Code Ann. 1972 § 99-19-105 (3)(b). With regard to the sentence, the command is that this Court
"shall determine. . .whether the evidence supports the. . .finding of a statutory aggravating circumstance. . .
." Id. We cannot avoid that duty by the imposition of a procedural bar. The bar aside in this case, however,
I agree with the majority that there was sufficient evidence to support the aggravating circumstances found.

SULLIVAN, P.J., JOINS THIS OPINION.


1. I, of course, adhere to the views expressed in the dissenting opinions when this case was originally heard.
Foster v. State, 639 So. 2d 1263, 1304 (Miss. 1994) (Hawkins, C.J., and Banks, J., dissenting). Those
issues are not before us here.

2. While this case and those that immediately follow dealt with Miss. Code Ann. § 99-35-145 (1972) and
its predecessors, which spoke to application for leave to file a petition for writ of error coram nobis, the
language of that section is verbatim to and the source of the language of § 99-39-7.

3. Three justices of this Court voted to vacate the death sentence and impose a sentence of life
imprisonment on initial review. Foster v. State, 639 So. 2d 1263 (Miss. 1994).
