Executed May 17, 2011 at 6:12 p.m. by Lethal Injection in Mississippi
17th murderer executed in U.S. in 2011
1251st murderer executed in U.S. since 1976
2nd murderer executed in Mississippi in 2011
15th murderer executed in Mississippi since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
B / M / 22 - 38
W / F / 79
Investigators questioned and arrested Rodney Gray that same day. While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her that he had hidden money in a bathroom vent. A search of Curry's trailer turned up $1,123 hidden in the bathroom air duct. The bloody clothes and boots which Gray had been wearing on the day of the murder were found in a bucket behind Curry's trailer. DNA of the semen found on Blackwell had less than a 1-in-446 million chance of coming from someone other than Gray, according to FBI experts.
Gray v. State, 728 So.2d 36 (Miss. 1998). (Direct Appeal)
Gray v. State, 887 So.2d 158 (Miss. 2004). (PCR)
Gray v. Epps, 616 F.3d 436 (5th Cir. 2010). (Habeas)
Jackson Clarion-Ledger"Killer shows no sign of remorse before execution." (12:20 AM, May. 18, 2011)
PARCHMAN — No one will ever know what possessed a then-22-year-old man to kidnap, rape and shoot to death an elderly woman old enough to be his grandmother or great-grandmother in 1994. More than 16 years after 79-year-old Grace Blackwell was killed, her murderer, now 38, was put to death for the crime. At 6:12 p.m. Tuesday, Rodney Gray died by lethal injection.
With Blackwell's son-in-law, Billy Martin, and granddaughter, Amber Arnold, witnessing his execution, Gray gave no apology. When given the opportunity to speak, Gray shook his head to affirm he didn't want to make a statement. Strapped to the gurney, Gray looked much different than the prison picture showing him with platted hair. His hair was neatly cropped and he wore glasses.
He dangled his left foot, seemingly impatient to get the execution started. Once injected with the fatal cocktail, Gray took three deep breaths and appeared to die immediately. Eight minutes passed before he was officially pronounced dead. Martin and Arnold sat watching stone-faced, with Martin holding his daughter's hand.
Gray died, of course, much different than the violent death his victim suffered. Blackwell was raped, shot in the mouth with a shotgun and thrown out of a car or run over with a car before she died. "Unfortunately, we will have to continue to live with the scars of this cruel and senseless attack on such a kind and loving person who bore no ill will toward anyone," Blackwell's family said in a statement. "The family will have to live with the knowledge of those terrifying last hours of her life."
Her family thanked those who worked to see that the justice system functioned properly in the case. The statement also said family members will not regain what they lost or fully heal from the pain and suffering, but take comfort in knowing Gray can no longer harm anyone.
Gray was the first black inmate to be executed by lethal injection since the state began using the method in 1998. Of the remaining 57 inmates on death row, 32 are black, 24 are white and one Asian. Gray's stay on death row is about the average time an inmate spends in Mississippi. He is the second inmate put to death this month. Benny Joe Stevens, 52, was put to death last week and Robert Simon Jr., 47, is scheduled for execution next week.
Many condemned killers are talkative with their execution imminent. Gray was no exception, but ate very little of his food, saying he wasn't hungry. A condemned inmate also is granted a customary last meal of his choosing, but Gray opted not to order a special meal. He also didn't want a sedative.
Gray's mother, Annie Tatum, visited him for two hours, but Gray requested no family members view his execution. Gray asked Mississippi Department of Corrections Chaplain Willie Bays to witness his execution after his own spiritual adviser didn't make it to Parchman. Gray said he had made peace with the Lord, MDOC Commissioner Chris Epps said from conversations with Gray. Gray also had been reading the Bible, Epps said.
Though he appeared resigned to die, Gray said he was innocent of all the crimes that led him to being on death row, Epps said. "I think he has decided over the years that he didn't do the crime," Epps said. Former Newton County District Attorney Ken Turner, who prosecuted the case, however, said the "evidence was overwhelming" against Gray. DNA of the semen found on Blackwell had less than a 1-in-446 million chance of coming from someone other than Gray, according to FBI experts.
Blackwell lived in neighboring Jasper County. Gray was from Newton County. Blackwell was last seen alive after cashing a $1,200 check at her bank in Louin. The teller testified at Gray's trial that she heard the woman say over the speaker, "I'm hurrying. I'm hurrying." The teller said clothes hanging in the car prevented her from seeing into the back seat.
A motorist said he saw a woman struggling with a man in a car on a rural county road that day. He identified the man as Gray. The vehicle he described matched Blackwell's Chrysler. Blackwell's body was found at the end of a Newton County bridge on Aug. 15, 1994. Lawmen initially charged Gray with burglary of Blackwell's house. However, a murder charge was levied once Gray was linked to the money and statements from two cellmates that Gray had confessed to the slaying.
Also, a girlfriend of Gray's gave investigators information that led them to search her house trailer. Gray had called the woman and told her that he had put some money away in a bathroom vent. She thought Gray was lying. However, during the investigators' search of her trailer, $1,123 was found hidden in an air conditioner duct in a bathroom.
Gray's execution was assured Tuesday after the U.S. Supreme Court denied his emergency appeal. On Monday, Gov. Haley Barbour denied his clemency request. Gray requested that his body be released to Holifield Funeral Home in Forest. As he says at the end of each execution, Epps said Tuesday night: "We have seen justice today."
Mississippi Department of CorrectionsInmate: RODNEY GRAY
1 BURGLARY-GENERAL 09/06/1995 JASPER COUNTY 3 YEARS
2 BURGLARY-GENERAL 09/06/1995 JASPER COUNTY 3 YEARS
3 HOMICIDE- 01/25/1996 NEWTON DEATH
Mississippi Department of CorrectionsDeath Row Inmate Rodney Gray, MDOC #49211
Factual Background of the Case
On January 25, 1996, a Newton County jury convicted Rodney Gray of the capital murder of Grace Blackwell.
On the morning of August 15, 1994, 79-year-old Grace Blackwell drove to the drive-through teller window of her bank in Jasper County. Blackwell presented a blank check and asked the teller to fill the check out in the amount of $1200. The teller's view of the car's back seat was blocked by hanging clothes. The teller testified that after giving her the money, she heard Blackwell say, "I'm hurrying, I'm hurrying." The teller notified the police, and they went to Blackwell’s home only to find the front door open and the phone disconnected.
Witnesses testified that they saw Blackwell's car around noontime being driven by a young black male, and one witness identified the driver as Rodney Gray. Police found Blackwell's body at the end of a bridge in Newton County at 1:40 p.m. Her car was found elsewhere in Newton County. Investigators determined that Blackwell had been killed by a shotgun blast to the mouth. Later, an autopsy revealed that Blackwell had also been raped and that her body had been run over by a car.
Investigators questioned Rodney Gray on August 15 about Blackwell's disappearance and arrested him that same day. While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her that he had hidden money in a bathroom vent. A search of Curry's trailer turned up $1,123 hidden in the bathroom air duct. The clothes and boots which Gray had been wearing on the day of the murder were found in a bucket behind Curry's trailer.
A Newton County grand jury indicted Gray for the capital murder of Grace Blackwell in violation of Miss. Code Ann. § 97-3-19(2)(e) (murder while engaged in the commission of the crime of kidnapping/and/or rape). On January 22, 1996, a jury was impaneled and found Gray guilty on January 24, 1996. Afterward, the jury heard evidence in support of aggravating and mitigating circumstances to determine the sentence to be imposed. The jury sentenced Gray to death on January 25, 1996.
Execution by Lethal Injection
In 1998, the Mississippi Legislature amended Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51. ***The manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical para-lytic agent until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice.
Contents of Syringes for Lethal Injection
Anesthetic - Pentobarbital – 5.0 Gm.
Normal Saline – 10-15 cc.
Pavulon – 50 mgm per 50 cc.
Potassium chloride – 50 milequiv. per 50 cc.
Lethal Injection History
Lethal injection is the world’s newest method of execution. While the concept of lethal injection was first pro-posed in 1888, it was not until 1977 that Oklahoma became the first state to adopt lethal-injection legislation. Five years later in 1982, Texas performed the first execution by lethal injection. Lethal injection has quickly be-come the most common method of execution in the United States. Thirty-five of thirty-six states that have a death penalty use lethal injection as the primary form of execution. The U.S. federal government and U.S. mili-tary also use lethal injection. According to data from the U.S. Department of Justice, 41 of 42 people executed in the United States in 2007 died by lethal injection.
While lethal injection initially gained popularity as a more humane form of execution, in recent years there has been increasing opposition to lethal injection with opponents arguing that instead of being humane it results in an extremely painful death for the inmate. In September 2007 the United States Supreme Court agreed to hear the case of Baze v. Rees to determine whether or not Kentucky’s three drug-protocol for lethal injections amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United State Constitution. As a result of the Supreme Court’s decision to hear this case, executions in the United States came to a brief halt in late September 2007. On April 16, 2008, the Supreme Court ruled in Baze holding that Kentucky’s three-drug protocol for administering lethal injections does not violate the Eighth Amendment. The result of this ruling was to lift the de facto moratorium on executions in the United States. The State of Georgia became the first state to carry out an execution since the Court’s Baze decision when William Earl Lynd was executed by lethal injection on May 6, 2008.
Chronological Sequence of Events of Execution
48 Hours Prior to Execution The inmate is transferred to a holding cell adjacent to the execution room.
24 Hours Prior to Execution Institution is placed in emergency/lockdown status.
1200 Hours Day of Execution Designated media center at institution opens.
1500 Hours Day of Execution Inmate’s attorney of record and chaplain allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed to shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to execution room.
1800 Hours Day of ExecutionWitnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted with media witnesses.
2030 Hours Day of Execution Designated media center at institution is closed.
Death Row Executions
Since Mississippi joined the Union in 1817, several forms of execution have been used. Hanging was the first form of execution used in Mississippi. The state continued to execute prisoners sentenced to die by hanging until October 11, 1940, when Hilton Fortenberry, convicted of capital murder in Jefferson Davis County, became the first prisoner to be executed in the electric chair. Between 1940 and February 5, 1952, the old oak electric chair was moved from county to county to conduct execu-tions. During the 12-year span, 75 prisoners were executed for offenses punishable by death.
In 1954, the gas chamber was installed at the Mississippi State Penitentiary, in Parchman, Miss. It replaced the electric chair, which today is on display at the Mississippi Law Enforcement Training Academy. Gearald A. Gallego became the first prisoner to be executed by lethal gas on March 3, 1955. During the course of the next 34 years, 35 death row inmates were executed in the gas cham-ber. Leo Edwards became the last person to be executed in the gas chamber at the Mississippi State Penitentiary on June 21, 1989.
On July 1, 1984, the Mississippi Legislature partially amended lethal gas as the state’s form of execu-tion in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who com-mitted capital punishment crimes after the effective date of the new law and who were subsequently sentenced to death thereafter would be executed by lethal injection. On March 18, 1998, the Mississippi Legislature amended the manner of execution by removing the provision lethal gas as a form of execution.
Mississippi Death Row Demographics
Youngest on Death Row: Terry Pitchford, MDOC #117778, age 25
Oldest on Death Row: Richard Jordan, MDOC #30990, age 64
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 March 2, 1977: Thirty-Four Years
The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County. In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parch-man Plantation. The Superintendent of the Mississippi State Penitentiary and Deputy Commissioner of Institutions is E.L. Sparkman. There are approximately 921 employees at MSP. All male offenders sentenced to death are housed at MSP. All female offenders sentenced to death are housed at the Central Mississippi Correctional Facility in Pearl, Miss.
INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER
Name Race-Sex Offense Date Executed
Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89
PRISONERS EXECUTED BY LETHAL INJECTION
Name Race-Sex Offense Date Executed
Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
John B. Nixon, Sr. White Male Murder 12-14-05
Bobby G. Wilcher White Male Murder 10-18-06
Earl W. Berry White Male Murder 05-21-08
Dale L. Bishop White Male Murder 07-23-08
Paul E. Woodward White Male Murder 05-19-10
Gerald J. Holland White Male Murder 05-20-10
Joseph D. Burns White Male Murder 05-20-10
Benny Joe Stevens White Male Murder 05-10-11
Rodney Gray Black Male Murder 05-17-11
Source: Mississippi Department of Corrections, Mississippi State Penitentiary
"Man put to death in slaying of elderly woman," by Jack Elliott Jr. (Ap 10:25 PM, May. 17, 2011)
PARCHMAN — A man sentenced to death for the robbery and shotgun slaying of an elderly Mississippi woman was executed Tuesday at the state penitentiary at Parchman. Rodney Gray vigorously shook his head when asked by corrections officials if he had a statement. He took three deep breaths before he was pronounced dead at 6:12 p.m.
Gray, 38, dressed in a red prison jumpsuit, white sneakers and glasses, had said earlier Tuesday that he would have no last statement, according to Corrections Commissioner Chris Epps. "We talked about the crime," Epps said in the hours before the execution. "He's convinced himself ... in his mind that he is not guilty. He's convinced everybody else is wrong and Rodney Gray is right. Epps commented afterward: "We have seen justice today."
Gray was sentenced to death in 1996 for killing 79-year-old Grace Blackwell of Louin, whose body was found Aug. 15, 1994, at the end of a Newton County bridge. Blackwell died from a shotgun wound to the head. Blackwell was last seen after cashing a $1,200 check at the woman's bank in Louin. The victim's car was later found behind a service station in Decatur.
In court records, prosecutors said the woman's blood was found on Gray's clothing left at his girlfriend's mobile home. Epps said despite that forensic evidence Gray denies he committed the crime.
Gray talked with his mother Tuesday shortly before being taken into the execution room. No one from his family attended the execution. Two members of Blackwell's family attended.
In a statement, Blackwell's family said they continue "to live with the scars of this cruel and senseless attack on such a kind and loving person who never bore any ill will toward anyone." "Although we will never re-gain what we have lost or fully heal from the pain and suffering inflicted on our family, we will take some comfort in the knowledge that no one else will come to harm at the hands of Rodney Gray," the statement said.
Gray was the first black inmate to be executed by lethal injection since the state adopted the method in 1998. Leo Edwards, who was black, died in the now mothballed gas chamber in 1989. Ten white inmates were executed by lethal injection between July 17, 2002 and May 10, 2011. The U.S. Supreme Court on Tuesday turned down Gray's appeal. Gov. Haley Barbour denied Gray's clemency petition on Monday.
Epps said Gray's body would be turned over to Holifield Funeral Home in Forest. Gray's execution was the second in Mississippi using pentobarbital due to a nationwide shortage of a different drug it has used in the past. Benny Joe Stevens was executed May 10 using the new lethal drug mixture.
"Man executed in death of elderly woman," by Jack Elliott Jr. (Associated Press)
PARCHMAN -- A man sentenced to death for the robbery and shotgun slaying of an elderly Mississippi woman was executed Tuesday at the state penitentiary at Parchman. Rodney Gray vigorously shook his head when asked by corrections officials if he had a statement. He took three deep breaths before he died at 6:12 p.m.
Gray, 38, dressed in a red prison jumpsuit, white sneakers and glasses, had said earlier Tuesday he would have no last statement, Corrections Commissioner Chris Epps said. “We talked about the crime,” Epps said in the hours before the execution. “He’s convinced himself … in his mind that he is not guilty. He’s convinced everybody else is wrong and Rodney Gray is right. Epps said afterward: “We have seen justice today.”
Gray was sentenced to death in 1996 for killing 79-year-old Grace Blackwell of Louin, whose body was found Aug. 15, 1994, at the end of a Newton County bridge. Blackwell died from a shotgun wound to the head. Blackwell was last seen after cashing a $1,200 check at her bank in Louin. Her car was later found behind a service station in Decatur. Prosecutors said the woman’s blood was found on Gray’s clothing left at his girlfriend’s mobile home. Epps said despite that forensic evidence, Gray denies he committed the crime.
Gray talked with his mother Tuesday shortly before being taken into the execution room. No one from his family attended the execution. Two members of Blackwell’s family attended. In a statement, Blackwell’s family said they continue “to live with the scars of this cruel and senseless attack on such a kind and loving person who never bore any ill will toward anyone.”
Gray’s execution was the second in Mississippi using pentobarbital because of a nationwide shortage of a drug it has used in the past. Benny Joe Stevens was executed May 10 using the new lethal drug mixture. Robert Simon Jr., sentenced to death for killing three members of a rural Quitman County family in 1990, is scheduled to be executed May 24.
ProDeathPenalty.ComOn the morning of August 15, 1994, 79-year-old Grace Blackwell drove to the drive-through teller window of her bank in Jasper County. Grace presented a blank check and asked the teller to fill the check out in the amount of $1200. The teller's view of the car's back seat was blocked by hanging clothes. The teller testified that after giving her the money, she heard Grace say, "I'm hurrying, I'm hurrying." The teller notified the police, and they went to Grace’s home only to find the front door open and the phone disconnected.
Witnesses testified that they saw Grace's car around noontime being driven by a young black male, and one witness identified the driver as Rodney Gray. Police found Grace Blackwell's body at the end of a bridge in Newton County at 1:40 p.m. Her car was found elsewhere in Newton County. Investigators determined that Blackwell had been killed by a shotgun blast to the mouth. Later, an autopsy revealed that Grace had also been raped and that her body had been run over by a car.
Investigators questioned Rodney Gray on August 15 about Grace Blackwell's disappearance and arrested him that same day. While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her that he had hidden money in a bathroom vent. A search of Curry's trailer turned up $1,123 hidden in the bathroom air duct. The clothes and boots which Gray had been wearing on the day of the murder were found in a bucket behind Curry's trailer.
A Newton County grand jury indicted Gray for the capital murder of Grace Blackwell, with the aggravator of murder while engaged in the commission of the crime of kidnapping/and/or rape. Attorneys Thomas D. Lee and B. Jackson Thames, Jr. represented Gray in the trial court. At trial, FBI experts testified that the foot print at the Blackwell home came from Gray's boot and that tests on DNA samples taken from Grace Blackwell's undergarments showed that Gray was the likely source. The probability that the semen came from someone other than Gray was 1 in 446,000,000.
Further testimony came from one of Gray's cell mates, who testified that while in jail Gray told him that he had forced Blackwell to withdraw money from the bank, raped her and then shot her with a .410 shotgun. The jury found Gray guilty of capital murder and then heard evidence as to mitigating and aggravating circumstances pertinent to the determination of the sentence which should be imposed on Gray. After hearing testimony from several witnesses from the State and the defense, the jury reached a unanimous verdict finding that Rodney Gray should suffer death for the capital murder of Grace Blackwell.
Gray v. State, 728 So.2d 36 (Miss. 1998). (Direct Appeal)
Defendant was convicted in the Circuit Court, Newton County, Marcus D. Gordon, J., of capital murder and was sentenced to death. He appealed. The Supreme Court, James L. Roberts, Jr., J., held that: (1) defendant's speedy trial rights were not violated; (2) jury did not exhibit bias or passion by deliberating only ten minutes before returning conviction and one hour before returning sentence of death; (3) defendant was not entitled to change of venue; (4) evidence supported finding that defendant kidnapped victim; and (5) death penalty was not disproportionate. Affirmed.
JAMES L. ROBERTS, Jr., Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. This appeal comes before this Court from the Circuit Court of Newton County, Mississippi. Rodney Gray was indicted during the July-August 1995 term of the Circuit Court of Newton County, for the capital murder of Grace Blackwell on August 15, 1994, while engaged in the commission of the crime of kidnapping and/or rape in violation of Miss.Code Ann. § 97-3-19(2)(e). On January 22, 1996, a jury was impaneled and found Gray guilty on January 24, 1996. Afterward, the jury heard evidence in support of aggravating and mitigating circumstances to determine the sentence to be imposed. The jury sentenced Gray to death on January 25, 1996.
2. The sentence of death was in the following form pursuant to Miss.Code Ann. § 99-19-101(5) and (7) (1994): (1) We, the Jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder: 1. That the Defendant actually killed Grace Blackwell. 2. That the Defendant attempted to kill Grace Blackwell. 3. That the Defendant intended that the killing of Grace Blackwell take place. 4. That the Defendant contemplated that lethal force would be employed. We, the Jury, unanimously find that the aggravating circumstances of; 1. The capital offense was committed while the Defendant was engaged in the commission of kidnapping. 2. The Capital offense was committed while the Defendant was engaged in the commission of or an attempt to commit the crime of rape; are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances, and we further find unanimously that the Defendant should suffer death. /s/ Allen B. Perry /s/ Foreman of the Jury
3. Gray was sentenced to death by lethal injection by the lower court at a date to be fixed by appropriate order of an appropriate court. Gray's Motion for New Trial was overruled on February 20, 1996. Gray awaits the outcome of this appeal while incarcerated in the Maximum Security Unit of the State Penitentiary at Parchman, Mississippi. Gray has raised the following issues: I. WHETHER THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION OF 1890. II. WHETHER THE COURT ERRED BY ADMITTING HEARSAY EVIDENCE. III. WHETHER THE COURT ERRED IN RULING ON THE DEFENDANT'S MOTION TO PROHIBIT PROSECUTORIAL MISCONDUCT PRIOR TO TRIAL. IV. WHETHER COMMENTS MADE BY PROSECUTOR DURING CLOSING ARGUMENTS VIOLATED THE DEFENDANT'S RIGHTS TO A FAIR AND IMPARTIAL TRIAL. V. WHETHER THE COURT ERRED BY ALLOWING THE STATE'S DNA EXPERT TO TESTIFY ABOUT TEST RESULTS SHE DID NOT PERSONALLY CONDUCT. VI. WHETHER THE COURT ERRED BY ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE THE GRUESOME PHOTOGRAPHS AND VIDEO TAPE OF THE BODY OF THE VICTIM. VII. WHETHER THE COURT ERRED BY ADMITTING A PHOTOGRAPH OF THE VICTIM INTO EVIDENCE BY A WITNESS WHO WAS NOT AT THE CRIME SCENE. VIII. WHETHER THE COURT ERRED BY ALLOWING AN INSTRUCTION TO THE JURY AS TO RAPE, WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH AN INSTRUCTION. IX. WHETHER THE JURY VERDICT EVIDENCED BIAS AND PASSION BECAUSE OF THE TIME OF DELIBERATIONS. X. WHETHER THE COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION FOR CHANGE OF VENUE. XI. WHETHER THE COURT ERRED BY ALLOWING AN IN-COURT IDENTIFICATION OF THE DEFENDANT BY A WITNESS. XII. WHETHER THE COURT ERRED BY FAILING TO DISMISS THE INDICTMENT BECAUSE THE UNDERLYING FELONIES WERE LISTED IN THE DISJUNCTIVE. XIII. WHETHER THE COURT ERRED BY ALLOWING THE JAIL-HOUSE CONFESSIONS OF THE DEFENDANT TO HIS FORMER CELL-MATES INTO EVIDENCE. XIV. WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO COUNSEL. XV. WHETHER THE EVIDENCE IS SUFFICIENT TO SUPPORT THE SENTENCE. XVI. WHETHER THE COURT ERRED BY GRANTING S-3 OF THE GUILT PHASE OF THE TRIAL. XVII. WHETHER THE COURT ERRED BY GRANTING S-4 ON CIRCUMSTANTIAL EVIDENCE AT THE GUILT PHASE OF THE TRIAL. XVIII. WHETHER THE EVIDENCE SUPPORTED A KIDNAPPING INSTRUCTION AT GUILT PHASE OF THE TRIAL. XIX. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
4. After reviewing the record, briefs, and prior holdings of this Court, we hold that there is no reversible error in this case. Therefore, Rodney Gray's conviction for capital murder and the imposition of the death sentence is affirmed.
STATEMENT OF THE FACTS
5. Early in the afternoon on August 15, 1994, at approximately 1:40 p.m., the body of seventy-nine year old Mrs. Grace Blackwell was found at the end of a bridge in Newton County. Investigators found broken glass, several blood stains, and tissue on the bridge. Mrs. Blackwell's billfold, checkbook, and contents of her purse were found near the bridge. Investigators also found a plastic wadding from a shotgun shell.
6. Mrs. Blackwell's car was found later behind a service station in Decatur. Large amounts of blood were found all over the passenger side of the car, both inside and outside. A pair of gloves was located in a dumpster near the car. The car had been damaged on the front of the passenger side. There was blood and tissue on the front, across the hood, windshield, and down the passenger side of the vehicle. The interior of the car contained a great deal of blood and glass particles on the door paneling and seat.
7. Mrs. Blackwell's body received several extensive injuries. She had lacerations on her leg and facial area, severe wounds to her mouth and back side of her head, along with a gash to the back of her head. The lethal injury was a contact shotgun wound to the mouth. She also sustained a second gunshot wound to the left side of her face, as well as her chest and left arm. There were multiple small entrance wounds indicating secondary missile pattern injury, as if the shotgun had been fired through an intermediate target. This was a non-lethal wound. Mrs. Blackwell also received multiple injuries on her right side, where there were large scrapes of skin as if she slid on a hard object. She had bruises over her chest wall and right lower leg. There was also an abrasion or scrape of one inch to the labia majora or vaginal vault, which indicated forceful sexual penetration. The large cuts on Mrs. Blackwell had little blood, indicating they occurred after the shotgun wound to the face. Such injuries were consistent with being struck by a car or having fallen or been pushed from a car. Mrs. Blackwell's death was caused from extensive bleeding from the gunshot wound to the mouth. It would have taken a period of time to die, as the bleeding was from secondary vessels, and not every individual is immediately incapacitated from such a wound, as per the medical examiner's testimony. A rape kit was taken from Mrs. Blackwell, and the kit, as well as her clothes, were sent to the crime lab.
8. On the morning of August 15, 1994, Mrs. Blackwell went to her local bank in Louin, Jasper County, to use the drive-through window. Arlene McCree, the bank teller who usually waited on Mrs. Blackwell, testified that Mrs. Blackwell was acting strangely. Mrs. Blackwell presented a blank check for the teller to fill out in the amount of $1200. McCree stated that she could not see into the backseat of Mrs. Blackwell's car because there were clothes hanging on hangers blocking her view. After McCree filled out the check, Mrs. Blackwell snatched it back, signed it, and threw it back to the teller. When the teller gave her the money, Mrs. Blackwell grabbed it and drove away. As she drove off, McCree heard Mrs. Blackwell say over the speaker, “I'm hurrying, I'm hurrying.” McCree then contacted the Jasper County Sheriff's office and asked them to check on Mrs. Blackwell as she thought she had been taken hostage.
9. Investigators in the Jasper County Sheriff's office went to Mrs. Blackwell's house and discovered the front door was open and the telephone had been disconnected. Shoe prints were found in the front yard, and a plaster cast was made and sent to the crime lab. The investigators began to look for Rodney Gray for questioning in Mrs. Blackwell's murder. Gray turned himself into authorities. When Gray was arrested on August 15, 1994, his clothes were taken and sent to the crime lab, and he was given a jail uniform to wear. Blood and hair samples were also taken from Gray and sent to the crime lab.
10. Mildred Curry, who was Gray's girlfriend at the time of the murder, gave investigators information that caused them to search her house trailer. Gray called Mildred from jail and told her that he had put some money away in a bathroom vent. She thought Gray was lying. However, during the investigators' search of Curry's trailer, $1,123 was found hidden in an air conditioner duct in a bathroom. Mildred Curry later identified the shirt and work boots Gray was wearing on the day of the murder. The shirt and work boots were found in a five gallon bucket in a wooded area by a dog pen behind the trailer. Both items were sent to the crime lab.
11. Mildred's brother, Randy, lived in the trailer with her. He testified that Gray came home on the afternoon of August 15th wearing the striped shirt. When Randy told him that the police wanted to talk to him, Gray went to a bedroom, changed shirts, and then called the police.
12. Harry Jones testified that he was driving around noon on August 15th, when he saw a brown Chrysler stopped in the road with a guy wrestling with a lady in the car. He identified the car that he saw as the one belonging to Mrs. Blackwell. Jones could not tell if the woman was black or white, but clearly saw the young, black male driving. The State asked Jones if he could identify the driver of the car. Gray's attorneys objected stating the identification was a product of an impermissible lineup. The lower court overruled the objection and allowed the identification in the courtroom to proceed. Jones identified Rodney Gray as the driver of the car.
13. Richard Weir testified that during his lunch break on August 15, 1994, he saw a maroon colored Chrysler pass by his truck. He stated what caught his eye was that it was a black male and a white female in the car. Weir also testified that it looked like the male was trying to grab the female. Although Weir identified the car as Mrs. Blackwell's, he could not identify the occupants.
14. Derrick Beasley stated that Gray approached him on the afternoon of August 15th near the courthouse in Decatur. Beasley testified that Gray had a wad of money in his pocket that he pulled out and showed to Beasley. It was in denominations of one hundred dollar bills. Beasley also stated that Gray was wearing the striped shirt that the investigators later recovered from behind Curry's trailer.
15. Russell Saunders was incarcerated with Gray in the Jasper County jail in August and September of 1994. Saunders testified that after returning from giving the police blood samples Gray asked “if they could tell if you had sex with a woman.” Saunders stated that Gray had told him that he had sex with the lady that he was supposed to have killed. Gray told Saunders that he had accidentally shot her and then ran over her. Gray stated to Saunders that he was not worried about the police finding the gun because he had smashed the gun and thrown it into the woods. Saunders had also heard Gray talking about the money that was supposed to be in a vent. In October or November of 1995, Gray was in the Newton County jail and told Cleveland McCall that he took Mrs. Blackwell to the bank to get some money. McCall testified that Gray told him that he brought her back from the bank, raped her and shot her with a .410 shotgun.
16. Several expert witnesses testified at the trial. Lora Aria, an expert in serology, stated that she identified four stains that could have been blood on the shirt Gray was wearing the day of the murder. She tested the stains and determined that two were human blood. Glass fragments recovered from the shirt found by the dog pen were optically indistinguishable from the glass from Mrs. Blackwell's car. There were blood stains found on the gloves recovered from the dumpster. The gloves also contained glass fragments which were optically indistinguishable from the glass from Mrs. Blackwell's car. The shirt worn by Gray at the time of his arrest also contained glass fragments that were optically indistinguishable from the glass from Mrs. Blackwell's car.
17. David Wilson was a Special Agent to the Federal Bureau of Investigation assigned to the Hairs and Fibers unit. He testified that he examined hair found in Mrs. Blackwell's panties with hair samples of Gray. His opinion was that the pubic hair found in the panties had the same microscopic characteristics as Gray's pubic hairs.
18. Gary Kanaskie was employed by the FBI to conduct shoe print and tire tread examinations. He compared the boots of Gray to the boot prints found at the home of Mrs. Blackwell. Kanaskie testified that the prints made at Mrs. Blackwell's home were made by the boots worn by Gray. Because there were three distinctive markings on the boots, Kanaskie testified that no other boot could have made the prints found at Mrs. Blackwell's home.
19. Finally, Melissa Smrz was assigned to the DNA analysis unit of the FBI. She conducted DNA tests on semen stains found on Mrs. Blackwell's panties. She testified that DNA was extracted from the semen and compared with blood samples from Gray. As a result of these tests, Smrz concluded that the probability that someone other than Gray left DNA in Mrs. Blackwell's panties was less than 1 in 446,000,000 in Black, Caucasian, and Hispanic populations.
20. After closing arguments, the jury retired at 3:11 p.m. to determine the verdict of guilt or innocence of Rodney Gray. The jury returned at 3:21 p.m. ready to report its verdict. The jury unanimously found Rodney guilty of the capital murder of Mrs. Grace Blackwell.
21. The jury then heard evidence as to mitigating and aggravating circumstances to consider when determining which sentence should be imposed on Gray. After hearing testimony from several witnesses from the State and the defense, the jury received its instructions from the court. Both sides then gave closing arguments. The jury began deliberations at 12:07 p.m. to determine the appropriate sentence. At 1:09 p.m. the jury returned to the courtroom ready to announce its decision. The jury reached an unanimous verdict finding that Rodney Gray should suffer death for the capital murder of Mrs. Grace Blackwell.
22. The normal post-trial motions were filed, heard on argument, and subsequently overruled by the lower court. Following this ruling by the lower court, Gray perfected his appeal to this Court.
DISCUSSION OF THE ISSUES
I. WHETHER THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION OF 1890.
23. Gray alleges a constitutional violation of his right to a speedy trial. On October 10, 1995, Gray filed a motion to quash the indictment claiming he had been denied a speedy trial. A hearing was had on this motion on October 30, 1995. After hearing argument from both sides, the lower court overruled Gray's motion to quash the indictment. BY THE COURT: The Defendant has filed his motion to dismiss the indictment, the Defendant having been indicted for the crime of murder while engaged in the commission of the crime of kidnapping and/or rape. This indictment was returned on the 2nd day of August of 1995. In doing so, he has brought into play Barker v. Wingo, which requires the Court to look at the evidence and make a finding regarding the delay, and to apply the analysis of the four prong test. The Defense argues that the Defendant is prejudiced because of a length of delay occurring since the arrest on August the 15th of 1994, and says that by reason of the delay, he was prejudiced, in that since then he has been convicted of another crime, thereby restricting his right to give testimony in his own defense, and also because a possible witness has died in the intervening time. The Court, in reviewing the evidence, finds that there was a delay of 257 days, being that time from the date of the charge on March 15th, 1995, until the date of the trial, which is now set for trial November the 27th, 1995, being a period shortly in excess of eight months, requiring the Court then, after determining there was a length of delay, to apply the test and determine the reason for that delay. It appearing from the evidence that during this period of time, the serology materials were turned over to the Federal Bureau of Investigation for analysis, and that immediately upon receipt of a partial report, the Sheriff of this county filed charges. The delay of discovery being negligent does not appear to be prejudicial and does not weigh heavily against the State, although the Court must find that it does weigh against the State. The second test of whether or not the Defendant asserted his right to trial weighs against the Defendant, for the record appears that he did not assert that he was entitled to the right to be tried on the crime for which he was charged. Before I get away from it, I want to say the DNA analysis being conducted by the Bureau could have been exculpatory and beneficial to the Defendant. Therefore, that weighs against the Defendant and whether or not he was prejudiced by the delay. Contrary to the argument of the Defendant, the crimes for which this Defendant was convicted in the intervening time were crimes that he had committed prior to the burglary, kidnapping, and/or rape and murder of the lady on August 15th, 1994, so I fail to see how he can contend that the delay in his trial caused him to be convicted of a crime for which he had committed prior to the date alleged in this particular instance. It is not clear, and it was not made clear, and the question was asked of the witness, what was the testimony of the person deceased, and there was no response to that question. Therefore, it has not been made clear to the Court what that witness would have testified to. Therefore, the Court would not be in a position of ruling whether or not the delay was prejudicial to the Defendant. Considering, therefore, the prejudice by delay weighs against the Defendant, and application of the test of the Barker v. Wingo, I find that it weighs against the Defendant. Therefore, the motion is overruled.
24. “This Court has held that post-delay determinations of cause are permissible and, when supported by substantial credible evidence, shall not be overturned.” Hull v. State, 687 So.2d 708, 729 (Miss.1996) (citing McNeal v. State, 617 So.2d 999, 1007 (Miss.1993)). Likewise, we hold that the lower court was correct in overruling Gray's motion to quash the indictment.
25. The murder of Mrs. Blackwell took place on August 15, 1994. Rodney Gray was arrested that same day and charged with burglary of Mrs. Blackwell's residence based on statements he made to the police. He was incarcerated in Jasper County. Bond was set for that charge, but Gray never made bond. Gray was transported to Newton County and charged with the capital murder on March 15, 1995. Gray was arrested in Newton County for capital murder 212 days after his arrest for burglary in Jasper County. All the while, he remained in custody.
26. Counsel was appointed on March 22, 1995. Gray's preliminary hearing was had on June 5, 1995. He was indicted by the Grand Jury of Newton County on August 2, 1995. The lower court set the trial date for November 27, 1995. This date would have been 469 days subsequent to his initial arrest for burglary in Jasper County and 257 days from his arrest for capital murder in Newton County.
27. On November 17, 1995, the attorneys for Gray filed a motion for continuance. The lower court granted the motion and scheduled the trial to take place on January 22, 1996. At the time Gray filed his motion for continuance 459 days had passed since his initial arrest for burglary and 247 had passed since his arrest for capital murder. When his trial began on January 22, 1996, it had been 525 days since he was arrested for burglary and 313 days since his arrest for the capital murder of Mrs. Blackwell.
28. The State argues that at the time of Gray's initial arrest it could not be determined if Mrs. Blackwell had been raped. At the time of his arrest, Gary was also facing prior burglary charges in Jasper County. On September 6, 1995, Gray pled guilty to two burglaries and one attempted burglary. These crimes occurred prior to Mrs. Blackwell's murder. The State contends that until the FBI reports were received it was not clear whether Gray could be charged with capital murder with the underlying felony of rape.
29. Gray argues on appeal that his constitutional right to speedy trial attached August 15, 1994, the day he was arrested for burglary. The State claims Gray's constitutional right to a speedy trial attached on March 15, 1995, the day he was formally charged with capital murder.
30. The constitutional right to speedy trial attaches at the time when the defendant is first effectively accused of the offense. Perry v. State, 419 So.2d 194, 198 (Miss.1982). This Court has held this to begin at “ ‘time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge.’ ” Perry v. State, 637 So.2d 871, 874 (Miss.1994) (quoting Lightsey v. State, 493 So.2d 375, 378 (Miss.1986)). The Court finds that Gray was effectively accused of the crime on March 15, 1995, when he was formally arrested and charged with the capital murder of Mrs. Blackwell. However, measuring the shortest possible time frame, 247 days (period of time Gray arrested for capital murder until Gray filed his motion for continuance) are attributable to the State. This is presumptively prejudicial because it is over eight months, and the State must show Gray has not been denied his right to a speedy trial. Smith v. State, 550 So.2d 406, 408 (Miss.1989); Rhymes v. State, 638 So.2d 1270, 1272 (Miss.1994); Hull v. State, 687 So.2d 708, 730 (Miss.1996).
31. Inquiry must be made into the other Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), factors: (2) Reason for delay; (3) Assertion of speedy trial; and (4) Prejudice. None of the factors are dispositive, but are to be considered together. Wiley v. State, 582 So.2d 1008, 1011 (Miss.1991); Barker, 407 U.S. at 530-33, 92 S.Ct. 2182.
(2) Reason for delay
32. The State asserts that the record does not indicate the delay preceding Gray's trial was a part of “[a] deliberate attempt to delay the trial in order to hamper the defense ...” Barker, 407 U.S. at 531, 92 S.Ct. 2182. Any delay is excusable if it is attributable to the defense. Smith v. State, 489 So.2d 1389, 1391 (Miss.1986). The record clearly shows that any delay after November 17, 1995, is attributable to the defense.
33. Gray claims the only reason for delay given by the State was the fact that it was waiting on DNA test from the FBI laboratory. The FBI received the evidence on September 9, 1994, and the results of the testing were faxed to the Newton County Sheriff's Office on March 14, 1995. Gray was charged with capital murder after the Newton County Sheriff received the faxed information from the FBI.
34. The State claims it would have been forced to seek a continuance until the lab results were available if Gray had been charged with capital murder without the DNA evidence. The lower court found that “the DNA analysis conducted by the Bureau could have been exculpatory and beneficial to the Defendant.” This Court has previously held the delay in time attributed to the FBI laboratory in preparing potentially exculpatory DNA evidence weighs very slightly, if at all, in favor of the defendant. Hull, 687 So.2d at 730. Because these test results could have exculpated Gray and benefitted him, this factor is not weighed heavily against the State, if at all.
(3) Assertion of the Right
35. Gray never requested a speedy trial. He moved to dismiss his indictment because of the lack of a speedy trial. Gray asked for the dismissal on October 13, 1995, after a trial date had been set for November 27, 1995. At this motion hearing, Mr. Lee, one of Gray's attorneys, stated, “The Defendant is not jeopardized in any way at this point. In fact, it would be to his benefit for Mr. Thames and I to be adequately prepared to go to trial, which at this time we aren't.”
36. This Court has dealt with similar situations previously. “In Adams we observed that a demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial. Such a motion seeks discharge not trial. There we held that a demand for dismissal coupled with a demand for an instant trial was insufficient to weigh this factor in favor of the defendant, where the motion came after the bulk of the entire period of delay had elapsed.” Perry, 637 So.2d at 875 (citing Adams v. State, 583 So.2d 165, 169-70 (Miss.1991)). In the case sub judice, Gray filed his motion to quash the indictment for lack of a speedy trial a little over a month prior to his original trial date. In that motion Gray did not request a speedy trial, but moved the lower court to dismiss the charges against him due to a denial of his right to a speedy trial. This factor weighs against Gray. Hull, 687 So.2d at 730; Perry, 637 So.2d at 875.
(4) Prejudice to the Defendant
37. The Supreme Court noted that prejudice to the defendant should be examined according to the interests of the defendant which the right to speedy trial is intended to safeguard. Barker, 407 U.S. at 532, 92 S.Ct. 2182. Those interests are: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. However, in United States v. MacDonald the Court expounded on the interests protected by the right to a speedy trial. The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).
38. Gray was incarcerated in Jasper County from August 15, 1994, until March 15, 1995, on a charge of burglary. His mother, Annie Tatum, testified she visited her son every Sunday in the Jasper County Jail. She stated that he appeared to be nervous, wanted her to get him a lawyer, and “wanted him to find out what was going on” by talking to the Sheriff. He attempted to take his life on two separate occasions, once by hanging and another by overdosing on pills. Mrs. Tatum testified that she could not afford to retain a lawyer for her son at that time.
39. The record clearly shows that Gray had an attorney appointed by the court to represent him on the burglary charge for which he was being held in Jasper County. Gray had an initial appearance on that charge and a bond was set. Gray did not make the bond and remained in jail. Sheriff Cross testified that if Gray had made his bond he would have been transported back to Newton County to face a separate felony drug charge.
40. The Court holds that the period of incarceration Gray endured in Jasper County prior to being charged with capital murder on March 15, 1995, in Newton County was attributable to the burglary charge. He would have been released upon making bail, only to be incarcerated in Newton County on a felony drug charge. Gray would have remained in jail between August of 1994 and March of 1995 even if he had not been charged with capital murder.
41. Gray was arrested in March of 1995 for capital murder of Grace Blackwell. He was indicted in August of 1995. His trial date was originally set for November 27, 1995. After he was granted a continuance, Gray's trial began on January 22, 1996. There was no oppressive pretrial incarceration, and no prejudice was suffered by Gray as a result of this incarceration.
42. The testimony by Annie Tatum suggested that Gray suffered anxiety and nervousness during his incarceration in Jasper County. Any suffering endured by Gray was during the time he was charged for the burglary. Although Gray may have been a suspect for the murder of Mrs. Blackwell, he suffered no anxiety because of the capital murder charge against him. Gray was not charged with capital murder until March of 1995 when he was transported to Newton County. The record does not indicate any anxiety or nervousness suffered by Gray while he was held in Newton County.
43. The last interest enumerated in Barker is the possibility of impairment to the defense. Barker, 407 U.S. at 532, 92 S.Ct. 2182. Gray raised several facts that he claims impaired his defense. The first is that he had no attorney during his time of incarceration in Jasper County. The record clearly refutes this claim. Sheriff Cross testified that Gray had an attorney appointed for him to defend him on the burglary charge for which he had been arrested. No capital murder charge had been brought against Gray until March 15, 1995. No attorney would have been appointed for Gray to defend him on that charge until after it had been brought.
44. Secondly, Gray claims that a witness named Latrelle Page could have testified for him, but had been killed in a car accident in May of 1995. “If witnesses die or disappear during a delay, the prejudice is obvious.” Id. Mrs. Tatum testified that Gray had told her Page could testify to help him or possibly clear him of this crime. When cross-examined by the State, Mrs. Tatum stated that she did not know what Page knew or would say. She stated Gray told her before May of 1995 that Page knew what happened.
45. The allegations concerning a witness who would testify to exonerate the defendant are unfounded. The trial judge noted that the question was put forth as to what the person would have testified to and no response was given. This was merely supposition. There can be no prejudice to the defendant when the possibility is insubstantial, speculative and premature.
46. The attorneys defending Gray against the capital murder charges were appointed on March 22, 1995. The record before this Court is void of any attempt by Gray or his attorneys to secure the testimony of Latrelle Page prior to his death in May of 1995. Mrs. Tatum testified that Gray told her about Page before May of 1995. This factor weighs against Gray. This Court has held that the failure to attempt to secure a witness is fatal to the claim of actual prejudice. Rhymes, 638 So.2d at 1274.
47. Thirdly, Gray claims that the testimony of witness inmates, Russell Saunders and Cleveland McCall, who heard incriminating statements by Gray may have never taken place if he had an attorney. This assertion is without merit. Statements made to Russell Saunders were made in either August or September of 1994. While Gray did not have an attorney appointed to defend the capital murder charges until March of 1995, he did have an attorney appointed to represent him as to the burglary charges. McCall testified that the statements made by Gray to him were in October or November of 1995 FN1 while Gray was incarcerated in Newton County. The attorneys appointed to defend him on the capital murder charge were appointed on March 22, 1995. FN1. The transcript testimony of McCall does not refer to a year. The testimony of McCall taken together with that of Sheriffs Cross and Hannah indicate the year to be 1995. Cross testified that Gray was transferred to Newton County in March of 1995, where he remained until trial.
48. Gray's argument to this Court that if he had an attorney he might not have made the statements to Saunders and McCall is without merit. The record clearly shows that he had representation during the time these statements were made. In fact, at the time he made the statements to McCall in October or November of 1995, Gray was represented by his court-appointed attorneys who defended him against the capital murder charges.
49. Lastly, Gray claims he pled guilty to three unrelated felonies in September of 1995 in Jasper County, which made him a convicted felon for cross-examination purposes. He alleges this deterred him from testifying in his own defense. The footnote on page 23 of Gray's appeal brief states his pleading guilty was done without the consent or knowledge of his attorneys. Because the attorneys were appointed in March of 1995, they should have known of this action by Gray in September of 1995. This factor weighs against Gray in his claim of prejudice.
50. The State also asserts that the United States Supreme Court has held that the right to a speedy trial does not require the government to formally accuse a person of a crime within any particular period of time. In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused: “On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” MacDonald, 456 U.S. at 6-7, 102 S.Ct. 1497.
51. The Court further stated, “[a]lthough delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, ..., or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending.” Id. at 7, 102 S.Ct. 1497.
52. Gray was not formally accused of capital murder until he was arrested on March 15, 1995, and transported to the Newton County jail. The record indicates that Gray was not indicted for the burglary of Mrs. Blackwell's home. However, the record does reveal that counsel was appointed to represent Gray on that burglary charge. Any speedy trial claim or violation of due process allegation would be associated with the burglary charge for which he was arrested on August 15, 1994.
53. After deducting the time attributable to Gray's motion for continuance, the length of delay is 247 days. This is very close to the “eight month measuring stick” used by this Court. The overall delay was not excessive for a capital murder case. As noted by the lower court, Gray was in a position to benefit from the DNA evidence if it exculpated him from being prosecuted for the murder of Mrs. Blackwell.
54. Gray has failed to show that the State intentionally held back its prosecution in order to gain some impermissible advantage at trial. Where the delay is not intentional and there is no showing of actual prejudice, the balance should be struck in favor of rejecting Gray's speedy trial claim. Rhymes, 638 So.2d at 1275.
55. The Court holds that Gray was not denied his right to a speedy trial. His argument is without merit.
II. WHETHER THE COURT ERRED BY ADMITTING HEARSAY EVIDENCE.
56. Gray's second argument on appeal contends the testimony of Arlene McCree constituted impermissible hearsay. McCree was the bank teller who waited on Mrs. Blackwell at the Peoples Bank of Louin drive-through window on the morning of August 15, 1994. She testified that when she asked Mrs. Blackwell if there was anything wrong or if she had someone with her, she received no response from Mrs. Blackwell. McCree stated that she heard Mrs. Blackwell over the bank's drive-through speaker saying “I'm hurrying, I'm hurrying” as she drove off. A: ... and I asked her one last time was someone in the car with her, and couldn't get anything out of her, and I finally, you know, pushed the button to let the tray out, and when I did that, she reaches in and grabs it, and then I'm tying to let the tray back, and she takes off, and she was always a careful driver, and the car just jerks it down and pulls out, and I could hear a voice on the speaker saying- BY MR. LEE: Wait just a minute now. I am going to object to what she heard over the speaker, Your Honor. BY THE COURT: Did you recognize the voice of Mrs. Blackwell? A: Yes, sir. It was Mrs. Blackwell saying, “I'm hurrying, I'm hurrying.” BY THE COURT: Objection overruled. Q: (Turner) What was Mrs. Blackwell saying as she was pulling away? A: “I'm hurrying, I'm hurrying.” Q: Was she speaking to you? A: I have no idea. She was looking out. I didn't think she was speaking to me, and that's when I thought I was right.
57. Prior to this colloquy, McCree testified that she had known Mrs. Blackwell since 1980, when McCree began working at the bank. McCree considered Mrs. Blackwell a friend and tried to wait on her when she came into the bank. McCree stated that on the morning of August 15, 1994, Mrs. Blackwell would not engage in conversation with her and would not even look at her, which was highly unusual. She further testified that Mrs. Blackwell requested $1200 dollars and presented a blank check. McCree stated that Mrs. Blackwell always filled out her checks, which were normally for not more than $100. McCree filled out the check for her and returned it for her to sign. McCree described Mrs. Blackwell as acting out of the ordinary because “she was not conducting normal business.”
58. Gray argues that hearsay evidence is incompetent. Murphy v. State, 453 So.2d 1290, 1294 (Miss.1984). Without any further citation, he claims that McCree's repeating Mrs. Blackwell saying “I'm hurrying, I'm hurrying” could not be admitted as an exception to hearsay under Miss. R. Evid. 803 as a present sense impression or excited utterance because this was a response to an apparent order or directive.
59. The State submits the statement was not hearsay. We agree. A statement is hearsay if it is an assertion. Miss. R. Evid. 801(a). The statement was not offered to prove the truth of the matter asserted. Miss. R. Evid. 801(c). The statement was not offered to prove that Mrs. Blackwell was hurrying. The statement was directed at someone else and likely was not intended to be heard by McCree. This Court has held that a statement offered for the fact that it was said does not fit the definition of hearsay. See Knight v. State, 601 So.2d 403, 406 (Miss.1992). The Court holds that the statements were not hearsay, and the issue is without merit.
III. WHETHER THE COURT ERRED IN RULING ON THE DEFENDANT'S MOTION TO PROHIBIT PROSECUTORIAL MISCONDUCT PRIOR TO TRIAL.
60. Gray filed a motion prior to trial to prohibit prosecutorial misconduct. The lower court stated that the motion would be ruled upon during the trial upon timely objection. Gray speculatively argues that had the lower court sustained the motion prior to trial, the allegedly impermissible arguments to the jury by the prosecution might not have been made. 
61. First, Gray does not cite any authority to support his claim that the lower court should have made such a ruling prior to trial. “This Court has repeatedly held that failure to cite authority may be treated as a procedural bar, and it is under no obligation to consider the assignment.” Weaver v. State, 713 So.2d 860, 863 (Miss.1997) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)). “If a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited.” Hoops v. State, 681 So.2d 521, 526 (Miss.1996). This assignment of error is procedurally barred.  
62. Alternatively, it is without merit. The trial court did not abuse its discretion by holding it would rule on the motion upon timely objection. Prosecutors are presumed to act in accordance with the Constitutions of both the United States and Mississippi, along with binding case law, rules of court, and rules of professional conduct. It would have been next to impossible for the trial judge to have covered with an admonition every potential act, if committed by the prosecution, that would have constituted misconduct. Attorneys are expected to act according to the parameters set forth above. Any deviation from such binding authority could have been dealt with by the lower court upon the defense entering a timely objection. Gray's assertion that had the lower court sustained the motion and instructed the prosecution to refrain from such conduct his argument would probably be moot is purely supposition.
IV. WHETHER COMMENTS MADE BY PROSECUTOR DURING CLOSING ARGUMENTS VIOLATED THE DEFENDANT'S RIGHTS TO A FAIR AND IMPARTIAL TRIAL.
63. In the closing argument of the guilt phase portion of the trial, the State made the following argument: BY MR. TURNER: We presented so much evidence against this Defendant that the only reasonable verdict in this case is guilty of capital murder, and I know that, and you know that, Mr. Duncan knows that, the Defense lawyers know that, the Judge knows that, and everybody sitting in this room for the last three days knows that. BY MR. LEE: Your Honor, wait just a minute. I am going to object to that. That was improper argument, pointing out who should know that, the Court should know it. That is very improper, Your Honor, and I am going to object to that. BY THE COURT: A lawyer is given great latitude in making his closing arguments. That is the attorneys for the State and the Defendant. He is entitled to argue the facts of a case and the inferences flowing from those facts, and his conclusions known to himself and to others. He is entitled to make an expression as to what the evidence indicates. Your objection is overruled.
64. Gray contends that allowing the State to inject that the judge and the defense attorneys know the only reasonable verdict was guilty of capital murder shocks the conscience. Gray also argues that by overruling the objection the judge gave credence to the statements made by the State that the only reasonable verdict was guilty of capital murder. Gray correctly asserts that this Court has warned prosecutors to “ ‘refrain from interjecting personal beliefs into presentation of their cases.’ ” Hunter v. State, 684 So.2d 625, 637 (Miss.1996) (quoting Chase v. State, 645 So.2d 829, 854-55 (Miss.1994)).  
65. Attorneys “in a criminal prosecution are given broad latitude during closing arguments.” Ballenger v. State, 667 So.2d 1242, 1269 (Miss.1995) (quoting Ahmad v. State, 603 So.2d 843, 846 (Miss.1992)). The State “ ‘may comment upon any facts introduced in evidence’ and ‘may draw whatever deductions seem to [it] proper from these facts.’ ” Hunter, 684 So.2d at 637 (citation omitted).
66. Gray contends that the great latitude given to prosecutors does not allow them to argue to the jury what the judge or the defense attorneys know. Further, he states that such comments by prosecutors cannot be considered expressions as to what the evidence indicates. 
67. The comments of the State in closing argument must be considered in the context they were made. Wilcher v. State, 697 So.2d 1087, 1112 (Miss.1997). The State contends that it was emphasizing the weight of the evidence. The State claims it was arguing to the jury that anyone who had watched the trial and heard the evidence would agree that the only reasonable verdict was guilty of capital murder.
68. The Court has previously ruled on personal opinion comments in Blue v. State, 674 So.2d 1184 (Miss.1996). There the Court held We find that the prosecutor's comments regarding Blue's guilt and the punishment due him were not personal opinion comments. The prosecutor never said that she believed Blue was guilty or that she believed that Blue deserved the death penalty. Reviewing the statements in context, the prosecutor simply argued that the evidence adduced at trial proved guilt beyond a reasonable doubt and supported a penalty of death. Id. at 1208.
69. The statements in the case presently before the Court are somewhat different. The prosecutor stated, “We presented so much evidence against this Defendant that the only reasonable verdict in this case is guilty of capital murder, and I know that, and you know that, Mr. Duncan knows that, the Defense lawyers know that, the Judge knows that, and everybody sitting in this room for the last three days knows that.” However, like the prosecutor in Blue, the prosecutor in the case presently before the Court did not say he believed the defendant was guilty. Rather, he stated that based on the evidence that had been presented everyone knew the only reasonable verdict was guilty of capital murder. The prosecutor argued the evidence proved guilt beyond a reasonable doubt. Blue, 674 So.2d at 1208.
70. These statements come perilously close to the type of statements this Court has warned prosecutors to avoid using in the presentation of their cases. Hunter, 684 So.2d at 637. The Court is mindful that our decisions in Hunter and Blue were handed down after this case was tried. Blue was decided by this Court on February 15, 1996, and the motion for rehearing was denied on June 6, 1996. Hunter was decided on June 27, 1996, and modified on denial of rehearing on December 5, 1996. The prosecution in this case did not have the benefit of these two cases when it tried this case on January 22, 1996. 
71. Because of our holdings in Blue and Hunter, we cannot say these statements were not error. However, in light of the overwhelming evidence in this case against Gray, we also cannot say the jury verdict was influenced by the prosecutor's argument so as to prejudice Gray. “Where a prosecutor has made an improper argument, the question on appeal is ‘whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created.’ ” Wells v. State, 698 So.2d 497, 507 (Miss.1997) (quoting Davis v. State, 530 So.2d 694, 701 (Miss.1988)).
72. Because of the overwhelming evidence of guilt, we hold that any error does not rise to the level of reversal. We take this opportunity to once again emphasize our criticisms and concerns from our holdings in Blue and Hunter with regard to personal belief comments interjected into arguments by the prosecution. Simply put, it should not be done. SENTENCING PHASE- 
73. Gray claims that during the sentencing phase the prosecutor made an improper argument. The prosecutor stated the following: BY MR. DUNCAN: In prison, if that's what you decide to give Rodney Gray, he is still going to have a certain quality of life. Granted it won't be the best in the world, but he will still have it. He will still be able to look out and see the sunshine. He will still have a relationship with his family, if they choose to have one with him. He will be able to talk to them, visit with them, communicate with them, and enjoy certain things, but Grace Blackwell's family, their only relationship with her will be their memories of her, their prayers, and visiting her in the graveyard. Grace Blackwell had a great-grandchild that she will never know. She has got a daughter, grandchildren, great-grandchildren, that have been cheated out of years- BY MR. LEE: Your Honor, I- BY MR. DUNCAN: -of relationship- BY MR. LEE: Wait just a minute, Mr. District Attorney. I am going to have to interpose an objection to this. This is not proper as to this crime that was committed, Your Honor. I am going to object to it. BY THE COURT: I am going to sustain the objection. BY MR. LEE: I would ask that the jury disregard it. BY THE COURT: Motion overruled.  
74. Gray complains that the lower court compounded the problem by refusing to instruct the jury to disregard the remarks made by the prosecutor after ruling them to be improper. “Where counsel lacks the self-discipline necessary to avoid arguments such as these, that discipline should be imposed by the trial judge from the bench.” Bridgeforth v. State, 498 So.2d 796, 801 (Miss.1986). “The purpose of closing argument is to enlighten the jury, not to enrage it.” Id.
75. The State responds that Gray's reliance on this Court's holding in Bridgeforth is misplaced. In the case at bar, the State did not vilify Gray. The prosecuting attorneys commented on the evidence that had been presented to the jury. The prosecution was attempting to enlighten the jury by giving a summation on the victim impact evidence that had just been presented. The State contends that it was not necessary for the judge to admonish the jury since victim impact evidence is proper for the jury to consider. “This Court found in Hansen v. State, 592 So.2d 114 (Miss.1991), and in numerous cases since, that such argument is not prohibited pursuant to the U.S. Supreme Court's holding in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).” Chase v. State, 699 So.2d 521, 537 (Miss.1997). Further, the State submits the impact of the murder on the victim's family is part of the crime committed by the defendant. The United States Supreme Court has held that juries “should consider the circumstances of the crime in deciding whether to impose the death penalty.” Tuilaepa v. California, 512 U.S. 967, 976, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). 
76. When looking at the entire closing arguments of the State during both the guilt phase and the sentencing phase of the trial any misconduct does not rise to the level of reversible error. “To constitute a due process violation, the prosecutorial misconduct must be (‘of sufficient significance to result in the denial of the defendant's right to a fair trial’).” Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (citation omitted).
77. These isolated statements by the prosecution did not deprive Rodney Gray of a fair trial. These comments standing alone were not sufficient to cause the jury to convict Gray of capital murder and sentence him to death. The evidence was overwhelmingly in favor of those verdicts. The guilty verdict was returned in ten minutes, and the sentence of death was returned in an hour.
78. Based on the overwhelming weight of the evidence, it cannot be said that but-for the prosecutors' statements Rodney Gray would have not been convicted or received a lighter sentence. This issue does not require reversal.
V. WHETHER THE COURT ERRED BY ALLOWING THE STATE'S DNA EXPERT TO TESTIFY ABOUT TEST RESULTS SHE DID NOT PERSONALLY CONDUCT.
79. The State's DNA expert, Melissa N. Smrz, testified as to her conclusions that the semen stains collected from the panties of Mrs. Blackwell and the blood samples taken from Gray contained the same DNA. Gray argues that the lower court erred by not excluding her testimony because she did not personally conduct the DNA testing, her testimony was hearsay and a denial of his constitutional right to confrontation and cross-examination.
80. Ms. Smrz testified that everything up to the point of evaluating the autoradiographs and doing the sizing and writing the report is done by someone else. She stated that a technician under her supervision ran the tests and created the autoradiographs. But, she actually evaluated the autoradiographs and did the sizing procedure.
81. On cross-examination Ms. Smrz testified as follows: Q. Okay. I don't want to repeat myself, but you are in actuality testifying before this jury what somebody under you actually did, and you are verifying the results? A. That is correct. My role is somewhat like a doctor in a hospital who has a lot of individuals who work on patient information or patient data, like a laboratory technician, or a nurse, or X-ray technician, and then that doctor is responsible for putting all that information together and evaluating and making diagnosis. It is a similar role.
82. On redirect, she testified a mistake in the testing would not cause a false identification. Q. And, when you review the results and supervise these tests, if there were a mistake to be made, would that in any way be able to somehow make a match where there was no match, or would it just result in no result at all? A. If the DNA test isn't done correctly, in that some chemical or correct chemical is not used, or the electrophoresis procedure is run too long, something that is not followed as part of the protocol, or if you will, recipe for that particular test, the test will not work, and we can tell that by the control that we use. The only type of error, what you are talking about, having a sample match when it really didn't, would be a sample mixup, and that is a human error. Again, with the chemicals and everything that we use, we know from the results of our control work that we did the test correctly, and in our laboratory we take great pains and a lot of quality control to make sure there are no sample mixups. I showed you on the diagram that we have our known samples separated from our questioned samples, so that you don't accidentally get a known sample put into a questioned lane. We also handle one sample at a time. We are working anytime on the bench one case at a time. We don't have a lot of cases out on the same bench where there would a chance for a mixup.
83. At the conclusion of Ms. Smrz's testimony, Gray moved that it be excluded. BY MR. LEE: Your Honor, I would first like to make a motion to exclude the testimony of the witness Smrz for the reason by her own testimony, she did not perform these tests. All she did was read the results. She has even testified that she probably was not even in the laboratory or in her office when these tests were run. That these tests were performed by people under her. So, all she can testify to is that they were supposedly done through the procedures established by the FBI laboratory, but she doesn't have firsthand knowledge of these tests actually being performed. Therefore, we are going to ask that her testimony be stricken and the jury ordered to disregard it. BY THE COURT: I think Mrs. Smrz has satisfactorily explained the procedure that is followed there in her department, in that she is the head of that department. That the tests were performed under her direction and control, and that she herself verified the results of the tests made by others. She gave a satisfactory explanation and compared it to a physician who has nurses and X-ray technicians and others who perform tests, but she makes an analysis of those tests and gives her conclusions. Therefore, your motion is overruled.  
84. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” McIlwain v. State, 700 So.2d 586, 590 (Miss.1997) (citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989)). Further, “[t]he qualifications of an expert in fields of scientific knowledge is left to the sound discretion of the trial judge.” Hall v. State, 611 So.2d 915, 918 (Miss.1992). The trial judge's discretion must be within the boundaries of the Mississippi Rules of Evidence. McIlwain, 700 So.2d at 590.
85. Ms. Smrz's testimony was clearly admissible according to Miss. R. Evid. 703. Miss. R. Evid. 703 provides: The facts of data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Comment There are three possible sources which may produce an expert's facts or data. Practice in Mississippi already recognizes two of them: (1) where the expert bases his opinion on personal observation, and (2) where he bases it either on a hypothetical question presented to him at trial or on the trial testimony of others which the expert has heard while sitting in the courtroom. See Collins v. State, 361 So.2d 333 (Miss.1978). The new practice under Rule 703 brings a third source: the presentation of data to the expert outside of court and other than by his personal observation. The Advisory Committee's Note to FRE 703 presents a persuasive rationale for the use of the third source. A physician, for example, bases his medical diagnosis of his patient on many sources. Most of his sources are admissible in evidence but only with the expenditure of substantial time in producing and examining various authenticating witnesses. Since these sources provide the doctor with information that he utilizes in making life-and-death decisions, his validation of them ought to be sufficient for trial, especially since he can be cross-examined. Miss. R. Evid. 703 and cmt. (emphasis added).
86. Ms. Smrz testified that the procedures used in her lab to extract and test DNA is the same procedure used “in the country and throughout the world, but it is also used in medical diagnostic laboratories and paternity testing laboratories.” She stated this was the procedure generally accepted within the scientific community as reliable. Ms. Smrz compared herself to a doctor who analyzes patient information collected by nurses, laboratory technicians, or X-ray technicians, and makes a medical diagnosis based on that information. Rule 703 allows an expert to base his opinion on the opinions of others which are not in evidence so long as experts in the field ordinarily rely on such opinions in forming their own opinions. For example, a psychiatric expert may rely on the reports of a patient's psychiatric history in arriving at his diagnosis. In such circumstances, the opinion of the nontestifying expert would serve simply as a premise supporting the testifying expert's opinion on a broader issue.... Hull, 687 So.2d at 716 (quoting Kim v. Nazarian, 216 Ill.App.3d 818, 159 Ill.Dec. 758, 764-65, 576 N.E.2d 427, 433-34 (1991)).
87. The testimony of Ms. Smrz is the third source of expert testimony referred to in the comment to Miss. R. Evid. 703. Ms. Smrz based her opinion and testimony on her analysis of the DNA extracted by technicians under her control. The Court finds her testimony was permissible under Miss. R. Evid. 703. 
88. Gray contends that he could not cross-examine Ms. Smrz as to how the actual tests were performed, other than what the procedure was, thus denying him his right to crossexamine and confront those who actually performed the tests. Although Gray did not specifically raise a Sixth Amendment Confrontation Clause objection, the objection raised was sufficient to preserve this question for consideration on appeal.
89. Gray relies on Kettle v. State, 641 So.2d 746, 749-50 (Miss.1994), where the prosecution attempted to introduce results from laboratory testing through a records custodian, not an expert. The Court reversed holding the “defendant was entitled to have the person who conducted the test appear and testify in person.” Id. at 750. In Barnette v. State, 481 So.2d 788, 791 (Miss.1985), the Court held that “a defendant's confrontation clause rights were violated where the analyst who performed certain tests was not available to testify.” Hull, 687 So.2d at 717. The Court in Hull found no error where the defendant faced the scientist who actually performed the tests. Id.
90. In the case sub judice Gray was able to confront and cross-examine the expert who evaluated the autoradiographs and did the sizing procedure, Ms. Smrz. She based her opinions and testimony on the results of her examinations of the test results. This was permissible testimony under Miss. R. Evid. 703 and did not violate Gray's Sixth Amendment right to confront witnesses. He was able to cross-examine and confront Ms. Smrz. Therefore, this issue is without merit.
VI. WHETHER THE COURT ERRED BY ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE THE GRUESOME PHOTOGRAPHS AND VIDEO TAPE OF THE BODY OF THE VICTIM. 
91. Gray argues that the State, over his objection, introduced into evidence a series of gruesome photographs and a video tape FN2 of the victim that unfairly prejudiced him because it incited and inflamed the jury. Photographs of bodies are admissible as long as they have probative value, and are not so gruesome as to be overly prejudicial and inflammatory. Stringer v. State, 500 So.2d 928, 934 (Miss.1986). FN2. Exhibits 3, 4, 5, 30, 31, 32, 33, and 34.   
92. This Court's position as to the admissibility of photographs is well settled. In Westbrook v. State, 658 So.2d 847, 849 (Miss.1995), this Court found that photographs of a victim have evidentiary value when they aid in describing the circumstances of the killing, Williams v. State, 354 So.2d 266 (Miss.1978); describe the location of the body and cause of death, Ashley v. State, 423 So.2d 1311 (Miss.1982); or supplement or clarify witness testimony, Hughes v. State, 401 So.2d 1100 (Miss.1981). The admissibility of photographs rests within the sound discretion of the trial court. Jackson v. State, 672 So.2d 468, 485 (Miss.1996); Griffin v. State, 557 So.2d 542, 549 (Miss.1990); Mackbee v. State, 575 So.2d 16, 31 (Miss.1990); Boyd v. State, 523 So.2d 1037, 1039 (Miss.1988). Moreover, the decision of the trial judge will be upheld unless there has been an abuse of discretion. Westbrook, 658 So.2d at 849. The “discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Hart v. State, 637 So.2d 1329, 1335 (Miss.1994)(quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). Brown v. State, 690 So.2d 276, 289 (Miss.1996). “The same standards applicable to determining the admissibility of photographs are applicable to video tapes.” Blue, 674 So.2d at 1210; See Holland v. State, 587 So.2d 848, 864 (Miss.1991). 
93. The State submits that all of the photographs admitted into evidence had significant probative value. State's Exhibit 3 was used by the prosecution to identify the victim in the case, Mrs. Grace Blackwell. It was also used by investigators to describe the injuries to Mrs. Blackwell that they observed when they arrived at the scene. Dr. Hayne used State's Exhibit 3 extensively in his description of Mrs. Blackwell's wounds. State's Exhibit 4 was also used to identify the victim and her condition at the crime scene. Dr. Hayne referred to State's Exhibits 4 and 33 to illustrate the large gash and laceration found on Mrs. Blackwell's leg. He testified that the wounds had little blood indicating they were sustained after she was shot when she was either hit by the car or fallen or pushed from the car.
94. State's Exhibit 5 was used to identify the victim and describe her condition when her body was found. Dr. Hayne testified using State's Exhibit 5 to describe the entrance wound and the wound track of the shotgun wound to Mrs. Blackwell's mouth. He showed the jury the powder residue visible on the picture indicating it was a contact wound.
95. State's Exhibit 31 was used by Dr. Hayne to describe the gaping cuts sustained by Mrs. Blackwell produced by the exit shotgun wound. State's Exhibit 32 was used by Dr. Hayne to explain the multiple gunshot pellet wounds, as well as the smaller secondary missile fragment wounds. The State used this testimony to prove its theory that Mrs. Blackwell was shot in the passenger seat through the driver's side car window.
96. Lastly, State's Exhibit 34 was necessary to show the injury to Mrs. Blackwell's vaginal vault. The picture illustrated the one inch abrasion that Dr. Hayne testified was caused by force. This photograph was probative to convince the jury that any sexual intercourse which occurred was not consensual. Any prejudicial effect this photograph may have had on the jury was outweighed by its probative value.
97. We hold that the photographs were not introduced into evidence as an attempt by the prosecutor to incite or inflame the jury so as to unfairly prejudice Gray. Rather, the prosecution introduced the photographs to accurately depict the injuries sustained by the victim causing her death and the crime scene as it was discovered by the investigating officers. Although the photographs are not attractive, they are permissible when they accurately depict the wounds suffered by the victim and the posture of body at the scene of the crime. Brown, 690 So.2d at 289. The lower court did not abuse its discretion in admitting the photographs into evidence.
98. State's Exhibit 30, the video tape, was narrated at trial by Chief Deputy Ron Davis. The defense attorneys objected to parts of the video where the camera zoomed in on certain parts of Mrs. Blackwell's body. The tape was played for the court with the jury out so that the lower court could make a determination as to its admissibility. Mr. Lee, one of Gray's attorneys, objected to the portion of the video that shows Mrs. Blackwell's body being moved onto a stretcher. The Court held the views of the body were admissible, but the removal of the body to the stretcher was not. However, the prosecutor stopped showing the tape prior to the closeup scenes of Mrs. Blackwell's body, which was the basis of Mr. Lee's objection. The jury did not see this portion of the tape. BY THE COURT: All right. Now, on the record, the District Attorney, Mr. Lee, has announced that he stopped showing the video there at the scene where it was showing the bridge, without showing the features of the body. That was your objection that it was gruesome and prejudicial. So, that has not been shown to the jury. Do you understand that? BY MR. LEE: Yes, sir. BY THE COURT: The record will so reflect that only the physical body itself was shown and not the closeup view that Mr. Lee objected to. BY MR. LEE: All right.
99. The State submits this issue as it pertains to the video tape is moot since the objectionable portions were not shown to the jury. We agree. Further, any other objection Gray might have on appeal has not been argued in his brief. Even if there were other objections raised, they are procedurally barred. Gray failed to raise any other objection to the video tape other than the one discussed above. Therefore, the procedural bar should be applied. See Lester v. State, 692 So.2d 755, 772 (Miss.1997); Davis v. State, 684 So.2d 643, 658 (Miss.1996); Williams v. State, 684 So.2d 1179, 1193 (Miss.1996); Blue, 674 So.2d at 1208.
100. The State did not seek to incite or inflame the jury by the introduction of the photographs and video tape. The lower court did not abuse its discretion by admitting the photographs and video tape into evidence. Furthermore, the jury did not see the portion of the video tape that was objectionable to the defense. Clearly, any alleged prejudicial effect on the jury was outweighed by the probative value of this demonstrative evidence.
VII. WHETHER THE COURT ERRED BY ADMITTING A PHOTOGRAPH OF THE VICTIM INTO EVIDENCE BY A WITNESS WHO WAS NOT AT THE CRIME SCENE.
101. As discussed above, the admissibility of photographs is within the sound discretion of the trial judge. Alexander v. State, 610 So.2d 320, 338 (Miss.1992); Ladner v. State, 584 So.2d 743, 753-54 (Miss.1991). Unless an abuse of that discretion can be shown, the lower court's decision will be upheld on appeal. Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996). 
102. Arlene McCree, the bank teller, was the third witness for the State. McCree testified that she had cashed a check for Mrs. Blackwell on the morning of August 15, 1994. The prosecution presented McCree with State's Exhibit 3 for the purposes of identifying Mrs. Blackwell. This photograph was admitted into evidence through McCree's testimony.
103. Gray's attorney, Mr. Lee, objected to the admission of the photograph stating it was irrelevant at that point in the trial and could only serve to inflame and prejudice the jury. This objection was overruled. On appeal, Gray argues that no testimony had been introduced as to the cause of death or the circumstances under which the death occurred at the time McCree testified. Therefore, the admission of the photograph, State's Exhibit 3, through the testimony of McCree was an abuse of the lower court's discretion.
104. The State responds that the photograph had probative value. The picture was presented to McCree by the prosecution to identify Mrs. Blackwell. Q. Mrs. McCree, you said you have known Mrs. Blackwell since approximately 1980 when you began working at the bank; is that correct? A. Yes, sir. Q. I need to show you this picture and ask if you can identify this as Mrs. Blackwell? A. Yes, sir. Gray acknowledges this in his brief, but then argues the photograph has no probative value.
105. The Court finds that the admission of the photograph, State's Exhibit 3, was not an abuse of the lower court's discretion. The photograph was admitted through the testimony of McCree to identify Mrs. Blackwell. It was an integral part of the State's case to prove that the person in the picture who had been found dead and identified as Mrs. Blackwell was the same person that McCree had waited on at the bank. 
106. Even if the photograph had not been admitted through the testimony of McCree, the State contends it would have been admitted during Dr. Hayne's testimony. Any error committed by the trial judge in admitting the photograph through the testimony of McCree was harmless. We agree and hold this issue is without merit.
VIII. WHETHER THE COURT ERRED BY ALLOWING AN INSTRUCTION TO THE JURY AS TO RAPE, WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH AN INSTRUCTION.
107. Gray claims as his eighth assignment of error that the jury was improperly instructed on the underlying felony of rape. The prosecution offered Instruction S-6 to define the crime of rape. The Court instructs the Jury that any person who shall forcibly ravish any female above the age of fourteen (14) years by having sexual intercourse with said female against her will by the use of force or by the threat of personal injury shall be guilty of the crime of rape. 
108. Gray contends this instruction did not properly instruct the jury on the underlying elements of the crime of rape. Gray asserts that a necessary element of the crime of rape is that some penetration of the female's private parts by the sexual organ of the assailant must occur. Lang v. State, 230 Miss. 147, 158, 87 So.2d 265, 268 (1956). The State must prove each element of the crime beyond a reasonable doubt, and must ensure the jury has been properly instructed with regard to the elements of the crime. Hunter, 684 So.2d at 635.
109. At trial Gray's attorney, Mr. Lee, objected to Instruction S-6 being given. [BY THE COURT:] What do you say to S-6? BY MR. LEE: I am going to object to that instruction. There is no evidence showing that there was any forcible rape. BY THE COURT: It is given. S-7?  
110. The State argues that any claim made by Gray on appeal that the instruction did not properly instruct the jury should be procedurally barred. An objection on one or more specific grounds at trial constitutes a waiver of all other grounds for objection on appeal. Lester, 692 So.2d at 773; Walker v. State, 671 So.2d 581, 605-06 (Miss.1995); See Conner v. State, 632 So.2d 1239, 1255 (Miss.1993). The procedural bar is applied. Gray objected to the instruction being given because he thought the evidence was insufficient to grant such an instruction. He never complained that Instruction S-6 did not specifically enumerate the elements of the crime of rape such the jury was improperly instructed. The Court will not allow him to expand his objection at trial to encompass other claims for the first time on appeal.   
111. Alternatively, his argument is without merit. Gray did not offer an instruction for rape. However, Gray asserts that even if he did not present an acceptable instruction, the State is obligated to supply an acceptable instruction. Hunter, 684 So.2d at 635-36. The State contends that a trial judge is not required to instruct the jury sua sponte or to give instructions in addition to those tendered by the parties. Ballenger, 667 So.2d at 1252. We agree. The instruction given must correctly instruct the jury as to each element of the offense charged. Hunter, 684 So.2d at 636. “Failure to submit to the jury the essential elements of the crime is ‘fundamental’ error.” Id. (quoting Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). 
112. Gray claims “sexual intercourse” was insufficient to inform the jury that rape meant penetration of a female's vagina by a male's penis. Sexual intercourse is defined as “genital contact or coupling between individuals, especially one involving penetration of the penis into the vagina.” Random House Webster's College Dictionary (4th Ed.1996) (emphasis added). 
113. The instruction did not have to mention sexual intercourse to have been sufficient. The instruction tracked the statutory language that reads any person is guilty of rape who “shall forcibly ravish any person of the age of fourteen (14) years or upward....” Miss.Code Ann. § 97-3-65(2) (1994). The instruction specifically instructed the jury that rape occurred when any person “shall forcibly ravish any female ... by having sexual intercourse with said female against her will by the use of force or by threat of personal injury.” The State contends this went beyond informing the jury of the essential elements of rape. The Court agrees. The jury was instructed as to each element of the crime as prescribed by the language in the statute itself.
114. Gray correctly notes that the instruction given to the jury did not explicitly require the element of penetration. This is of no consequence. This Court has long held that such an instruction, as given in the case sub judice, sufficiently sets out the elements of rape. See Rogers v. State, 204 Miss. 891, 895, 36 So.2d 155, 156 (1948)(instructing jury to find defendant guilty if he “violently, forcibly and feloniously and against her will, ravished and carnally knew her”). This Court has held “[r]avish means rape.” Allman v. State, 571 So.2d 244, 248 (Miss.1990).  
115. The State submits that Instruction S-6 informed the jury of the necessity of penetration and the use of force. The instruction must be considered as a whole, and the words contained therein given their customary, ordinary and usual meaning. Council v. Duprel, 250 Miss. 269, 303, 165 So.2d 134, 149 (1964). The terms “rape”, “forcibly ravish” and “sexual intercourse against her will” adequately entail in the mind of the ordinary juror the concept of physical penetration of the victim's vagina by the defendant's penis. Where the instruction tracks the statutory language prescribing the elements of the crime, the Court finds it is permissible as adequately instructing the jury as to the elements of the crime. 
116. Gray's main argument is that the State did not prove he committed the crime of rape beyond a reasonable doubt. He asserts the evidence presented at trial was not sufficient to prove penetration. Thus, Gray claims Instruction S-6 should not have been given. This claim is without merit.
117. Because the victim was deceased, the State had to prove beyond a reasonable doubt by mostly circumstantial evidence that Mrs. Blackwell was raped. Gray argued to this Court that Lang required proof of penetration of the female's private parts by the male's penis as a necessary element of rape. Lang, 230 Miss. at 158, 87 So.2d at 268. However, Gray failed to read further in the Lang opinion. This Court held penetration may be established by circumstantial evidence. Id.
118. Mrs. Smrz testified that semen stains were found in the panties of Mrs. Blackwell. She stated the source of the stains was Rodney Gray. Semen was found on the vaginal swabs taken from Mrs. Blackwell, but no DNA profile could be extracted. Mr. Wilson testified that the pubic hair found in the crotch area of Mrs. Blackwell's panties contained the same microscopic characteristics as Gray's pubic hair.
119. Dr. Hayne testified there was an abrasion or scrape measuring approximately one inch on Mrs. Blackwell's labia majora, which is the fold of the skin located external to the vaginal vault. He testified that force would be necessary to cause such an injury. Gray asked Russell Saunders “if they could tell if you had sex with a woman by taking your blood.” Gray then told Saunders that he had sex with the woman he allegedly had killed. Lastly, Gray told Cleveland McCall that he raped Mrs. Blackwell.
120. The trial judge correctly instructed the jury to decide whether this murder was committed during the commission of a rape. This Court's standard for reviewing the legal sufficiency of the evidence is as follows: When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidence-not just that supporting the case for the prosecution-in the light most consistent with the verdict. We give [the] prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge is required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb. See, e.g., Gavin v. State, 473 So.2d 952, 956 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984). Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992)(quoting McFee v. State, 511 So.2d 130, 133-34(Miss.1987)). 
121. In short, the evidence is to be viewed in the light most consistent with the jury's verdict. Carr v. State, 655 So.2d 824, 837 (Miss.1995). This Court has held the same standard to apply to capital murder cases. See Mackbee v. State, 575 So.2d 16, 36 (Miss.1990).
122. The record before the Court supports a procedural bar to Gray's assertion of this issue. He objected to the sufficiency of the evidence to support Instruction S-6 at trial. He did not allege the instruction failed to properly instruct the jury as to the specific elements of the crime of rape. Alternatively, Gray's argument is without merit. After thoroughly reviewing the record before this Court, we hold there was more than sufficient evidence presented at Gray's trial to support the lower court giving Instruction S-6 to the jury. Furthermore, the instruction was legally sufficient to inform and instruct the jury as to each element of the crime of rape which elevated this murder to a capital offense. Gray's argument is procedurally barred and without merit.
IX. WHETHER THE JURY VERDICT EVIDENCED BIAS AND PASSION BECAUSE OF THE TIME OF DELIBERATIONS.
123. Gray asserts that because the jury deliberated ten minutes on guilt and one hour on sentencing his case should be reversed. On January 24, 1996, the jury retired at 3:11 p.m. to begin deliberations to determine whether Rodney Gray was guilty of the crime charged. At 3:21 p.m. the jury announced ready to report its verdict of guilty. On January 25, 1996, at 12:07 p.m the jury was retired to the jury room to deliberate an appropriate sentence for Rodney Gray. That same day the jury announced it had reached a verdict at 1:09 p.m.
124. Gray claims that the jury did not review the exhibits, nor study the instructions. He states the members of the jury only had time to “walk around the table.” With no other tangible evidence before this Court in the record, Gray argues that the length of time the jury took for deliberations is evidence of the bias and passion of the jury.
125. “This Court has held that there is no formula to determine how long a jury should deliberate.” Smith v. State, 569 So.2d 1203, 1205 (Miss.1990) (citing Johnson v. State, 252 So.2d 221 (Miss.1971)). The Court in Johnson said the following: Because the jury's time of considering their verdict did not exceed seven minutes, it does not follow that the jurors did not carefully consider the testimony and the exhibits. It is not only possible but probable that when the state and the defendant had rested and the summations had been made each juror had decided in his mind the issue of innocence or guilt. After the brief deliberation with each other, the jurors found that they were of a single mind as to the guilt or innocence of the appellant and found him to be guilty. Under the facts of this case this Court is unwilling to lend its authority to the establishment of any formula or guideline relating to the time a jury must deliberate before delivering its verdict. This Court is cognizant of the fact that in the past in occasional cases, as in the case at bar, rather brief deliberations have taken place in the jury room and verdicts have been returned with unusual rapidity. There is no yardstick of time which a jury should use before reaching a verdict. No two cases are similar as to facts and therefore the law varies in its application thereto. Therefore, we cannot hold that in the time utilized by the jury it could not reach a proper verdict of guilty. Smith, 569 So.2d at 1205 (quoting Johnson, 252 So.2d at 224).
126. Gray argues that in deciding whether a man is guilty of capital murder the jury should be given some guidelines, such as being required to read jury instructions and examine the evidence. He contends the Court should separate capital cases from non-capital cases and provide guidelines in cases where a defendant's life is at stake. 
127. Gray offers no evidence to suggest the jury did not consider the testimony and exhibits as they were presented. The jury was read the instructions prior to closing arguments by the trial judge. “It is presumed that jurors follow the instructions of the court. To presume otherwise would be to render the jury system inoperable.” Chase, 645 So.2d at 853 (quoting Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985)).
128. The Court notes that this case was not overly complex, given that it was a capital murder case. The record before the Court provided the jury with ample evidence with which to consider Gray's guilt or innocence and subsequent sentence. There is nothing in the record to suggest the jury considered anything other than the evidence presented. Likewise, the record does not indicate a need for extended deliberations.
129. Gray's assertion that the length of jury deliberations evidenced bias and passion on the part of the jury is specious and without merit. He bases his argument solely on the length of the deliberations. It is illogical to think that a brief deliberation period is necessarily prejudicial to the defendant. A brief deliberation could just as easily indicate an acquittal. The Court holds that any time restrictions or guidelines regarding jury deliberations would usurp the jury system.
130. After reviewing the record, the Court holds that the verdict and sentence returned in the case before the Court were not based on bias or passion, but rather the overwhelming weight of the evidence. Gray's argument is without merit.
X. WHETHER THE COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION FOR CHANGE OF VENUE.
131. Gray's tenth assignment of error contends the trial judge abused his discretion in refusing to grant a change in venue in this trial. Gray filed his motion for change of venue, accompanied by two affidavits as required by Miss.Code Ann. § 99-15-35 (1994), from Donna Cumberland and Marie Evans. Although the affidavits tracked the language of Miss.Code Ann. § 99-15-35, neither identified the affiant as a resident of Newton County.
132. The trial court held a hearing on the matter. The defense did not present any witnesses at the hearing. The State presented six witnesses to prove Gray could receive a fair trial in Newton County. The witnesses were from various parts of Newton County, and all testified that they thought Gray could receive a fair trial. Charles Vance, fire chief of Newton, testified that he came into contact with approximately 150-200 primarily Newton County residents a week. He stated that the incident was not commonplace and some would talk. But, Vance testified he had heard no public ill will against Gray and thought “he could receive as fair a trial [in Newton County] as anywhere else.”
133. Kate Thomas lived in the northwest portion of Newton County and was campaigning for justice court judge at the time she testified. She stated that she also came into contact with several hundred Newton County residents a week. Gray claims Thomas was biased in light of her affirmative answer to the question, “As a candidate for a Justice Court Judge, it would not be beneficial to you to make a statement that any individual couldn't get a fair trial in Newton County; is that not correct?” She testified that no one had indicated to her that they had prejudged the case or formed an opinion as to the guilt or innocence of Rodney Gray. Thomas did not know who Rodney Gray was prior to receiving her subpoena to testify at the venue hearing. Thomas was of the opinion Gray could receive a fair trial in Newton County.
134. Ernie White testified that he lived in the town of Little Rock in Newton County, where he did auto body repair work. The defense attempted to show White had an interest in the case being tried in Newton County because Mrs. Blackwell's car was stored at his body shop. White testified that he saw between 100-125 primarily Newton County residents a week. He stated that no one he had spoken to had expressed an interest in the case. In White's opinion Gray could receive a fair trial in Newton County.
135. J.D. Davis, a resident of Chunky in Newton County, testified he came into contact with approximately 100 primarily Newton County residents a week. He stated that he had heard no one express ill will or indicate they had prejudged the case. He testified that he had not talked to anyone who knew either Gray or Mrs. Blackwell. He also stated that in his opinion Gray could get a fair trial in Newton County. On cross-examination Davis was asked whether the fact that a young black male had been charged with a serious offense against an elderly white would cause public ill will towards the defendant. Davis replied that he did not know, but that it could.
136. Wayne Griffith was the mayor of Hickory in Newton County. He stated that on average he would come into contact with approximately 500 primarily Newton County residents every week. Griffith on cross-examination stated he had read about the case in the paper once or twice. He was also aware that Gray had recently escaped from jail. However, Griffith had not heard anyone express an opinion about the Gray case. Griffith was not aware of any general feeling of ill will or prejudice against Gray and believed that Gray could get a fair trial in Newton County.
137. James Williamson owned a grocery store and lived at Duffie, which is in the eastern part of Newton County. He stated that he came into contact with about 1000 people a week. He did not know of anyone who had expressed an interest, prejudged, or formed an opinion about Rodney Gray. He testified that he believed Gray could receive a fair trial in Newton County. Williamson stated that persons came into his store a day or two after the murder and commented that she had been killed and run over with a car after being shot. He stated that he did not hear anything about it after that. Williams also stated that he did not believe the facts of the case would inflame the minds of potential jurors.
138. Gray alleges that it is apparent from the record that there was extensive news coverage of the crime in Newton County during August of 1994, March and April of 1995, and August of 1995. Gray submitted news articles from The Newton Record and The Union Appeal as exhibits to his motion for change of venue.
139. Vance testified there were three separate articles he could recall from The Newton Record. Thomas stated she had read one article in The Union Appeal. White stated that he occasionally read The Union Appeal but did not recall seeing any articles regarding the case. Through White, the defense entered the exhibits attached to the motion for change of venue into evidence. White maintained that “everybody don't [sic] read the Union Appeal and the Newton Record.” Davis was asked if the two newspapers were widely read throughout Newton County. He answered that as far as he knew they were, but that he did not know. To all of the defense's questions on cross-examination regarding the influence of the newspaper articles, Davis replied that he did not know and would only speculatively agree with the defense. Griffith stated the papers were circulated throughout the county, but he had only read about the case once or twice. On cross-examination Griffith was asked if the articles would put the case before the public. He responded that it possibly would. Although Williamson did not read the paper, he agreed with the defense that the case has pretty much stayed before the public. Williamson maintained that he had heard no one speak of opinions they might have regarding the case.
140. After the hearing the trial judge dictated a lengthy opinion into the record denying the motion. The judge noted the affidavits were deficient in that the affiants were not alleged to be residents of Newton County. The judge also noted the affiants did not allege to have personal knowledge of the facts of the case, but only alluded to the motion. The judge commented on each of the witnesses for the State and their testimonies. The judge went on to hold: Although not alleged within the motion for change of venue, the Defendant was permitted to develop testimony through the testimony of these witnesses, that this was a crime by a Black person upon a White female, and because of such, there could be no fair trial. That question and that argument in itself presumes and excludes Blacks from serving on juries. The inference is only to White jurors. Yet, each and every witness who was asked the question by Mr. Thames, stated that they felt like race would not be an issue and that the Defendant could receive a fair trial. It was testified to that there was several articles within the Union Appeal and the Newton Record, which are the two local publications having general circulation within Newton County. This alleged crime occurred August the 15th, 1994, some fifteen months prior to the date hereof. I do not consider the matter as being so saturated with publicity as was the case in the case of State of Mississippi vs. Fisher and also in the case of State of Mississippi vs. Johnson, two Lauderdale County cases that are the beacon cases in Mississippi regarding pre-trial publicity, and I do not feel that the publicity in this case falls within the terminology of the Supreme Court in those two cases. The Court being of the opinion that the State has met the burden of proof, that there is nothing developed in the record of this case would indicated the Defendant could not receive a fair trial, but to the contrary he could. Therefore, the obvious conclusion would be that the motion should be, and it is overruled. That is the order of the Court. 
141. A motion for a change of venue is not automatically granted in a capital case. There must be a satisfactory showing that a defendant cannot receive a fair and impartial trial in the county where the offense is charged. Miss.Code Ann. § 99-15-35 (1994). The lower court did not find that the evidence presented by the defense made a satisfactory showing when considered with the witnesses presented by the State.  
142. “A presumption of inability to conduct a fair trial in a venue arises with an application for change of venue, supported by two affidavits affirming the defendant's inability to receive a fair trial.” Holland v. State, 705 So.2d 307, 336 (Miss.1997)(citing Porter v. State, 616 So.2d 899, 905 (Miss.1993)). The presumption of the Defendant's inability to receive a fair trial can be rebutted by the State by presenting evidence “at the venue hearing coupled with the trial judge's reasoned ... sense of the community and, particularly in a case such as this [capital murder], an awareness of the uncontrovertible impact of saturation media publicity upon the attitudes of a community.” Fisher v. State, 481 So.2d 203, 215 (Miss.1985). 
143. “It is well-established in our jurisprudence that ‘the granting of a change of venue’ is a matter so largely in discretion [sic] of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue was refused, unless it clearly appears that trial [sic] court abused its discretion.” Simon v. State, 688 So.2d 791, 804 (Miss.1997) (quoting Billiot v. State, 454 So.2d 445, 454 (Miss.1984)). The discretion deferred to by this Court is the trial court's sound discretion, not its unfettered discretion. Fisher, 481 So.2d at 215. The lower court did not abuse its discretion by denying Gray's motion for change of venue. 
144. Gray did not present any witnesses at the venue hearing. He relied on the affidavits to create the presumption that he could not receive a fair trial. The affidavits must be by credible witnesses with knowledge of the facts of the case. Johnson v. State, 476 So.2d 1195, 1210 (Miss.1985). The trial judge was correct in finding the affidavits deficient when he noted in his findings that they did not allege the affiants had personal knowledge of the facts as set forth in the motion. The affidavits only alluded to the motion, but not the actual facts. Further, the affiants were not shown to be residents of Newton County.
145. The State presented six witnesses and the trial judge had the opportunity to hear their testimony, both direct and under cross-examination. He found the State had rebutted any presumption that had been created by the defense's affidavits alleging prejudice on the part of potential jurors. The judge did not find persuasive Gray's claims that he could not receive a fair trial. The State's witnesses rebutted these claims and showed the community had not prejudged or formed an opinion as to Gray's guilt or innocence.
146. The State correctly asserts there is bound to be media coverage of every capital murder case. However, this Court has stated that when the news media have heavily reported a case, the lower courts should be prepared to change venue. Johnson, 476 So.2d at 1215. However, the lower court judge noted that this case was not saturated with publicity as was the case in Fisher and Johnson. There is little mention of television coverage in the record. The main coverage was in The Newton Record and The Union Appeal, both local weekly newspapers in Newton County. There were eleven newspaper articles from August of 1994 to January of 1996. Neither the victim nor the defendant were residents of Newton County. The testimony of the State's witnesses at the venue hearing indicated that neither the victim nor the defendant were well known in Newton County.
147. The Court finds that Gray has not created an irrebuttable presumption of prejudice. Although this was a capital murder case and the Defendant was a black man accused of killing a white woman, there was no intensely prejudicial pretrial publicity so as to create a presumption of prejudice among potential jurors as was the case in Fisher and Johnson. Morgan v. State, 681 So.2d 82, 92 (Miss.1996). 
148. The presumption of the Defendant's inability to receive a fair trial can also be rebutted if the State can prove from voir dire that the trial court impaneled a fair and impartial jury. Harris v. State, 537 So.2d 1325, 1329 (Miss.1989). “The linchpin is whether the venire members stated that they could be fair and impartial jurors if chosen.” Simon, 688 So.2d at 804.
149. After initial instructions, qualifications, and voir dire by the court, the State conducted its voir dire of the jury venire. The defense then conducted its voir dire of the jury venire. At the conclusion of “for cause” challenges to the jury venire, Mr. Lee, one of Gray's attorneys, made a motion to quash the jury panel for two reasons.
150. The first was an insufficient number of black members of the panel in relation to the percentage of blacks in Newton County. The trial judge overruled the motion as to the first reason stating black and white jurors were excused for reasons given to and accepted by the court. The judge noted that at the time the black jurors were excused for cause shown the defense did not make an objection.
151. The second reason Mr. Lee wanted to quash the jury panel was because the summons that went out to the potential jurors had printed on it the charge of capital murder in bold print. Mr. Lee argued that the jurors should have come into court only knowing there was a criminal case to be tried. He claimed the fact that “capital murder” was printed on the summons had prejudiced the jurors. The judge asked for testimony in support of this argument, which Mr. Lee could not provide. The lower court ruled the motion to be speculative and would require the court to speculate without a showing of some proof. Therefore, the lower court overruled the motion to quash the jury panel.
152. Gray did not offer any objection to the jury based on the prejudicial effect of any pretrial publicity. The jury venire was expressly asked by the court if they could try the case fairly and impartially. The trial judge asked if any of the members of the venire had read anything about the case in the papers or heard by word of mouth. One who said he had already made up his mind was excused. The other two who indicated they had heard about the case in the news stated they could make a decision based on the evidence and the law. The State asked the venire if they had prejudged the case as to guilt or innocence and received no response. The State then asked if they could judge the case with a clean slate regardless of what they might have read in the paper and give the defendant a fair trial. Mr. Thames, one of Gray's attorneys, asked on voir dire if the venire had any bias against Gray and stated that the silence indicated there was none. Mr. Thames asked if any member of the venire felt “pro or against” Gray because the summons had listed as the charge “capital murder.” Mr. Thames stated that he understood from the venire's silence there were no feelings either way. Mr. Thames asked the venire if the fact that the case involved the charge of rape had inflamed any of the members against Gray. There was no response in the record. 
153. Where the record indicates the impaneled jury members affirmatively stated that they could fairly and impartially serve as jurors the State has rebutted the presumption of prejudice. Simon, 688 So.2d at 804. The record before the Court clearly indicates the panel members were asked repeatedly by the trial judge, the State's attorneys, and Gray's attorneys if they could be fair and impartial. There is nothing in the record to indicate that the jurors were not fair and impartial. Any presumption of prejudice was rebutted by the empaneling of the impartial jury in Gray's case. Berry v. State, 575 So.2d 1, 8 (Miss.1990).
154. The granting of a change of venue is within the sound discretion of the trial judge. The trial judge did not abuse his discretion by denying Gray's motion for a change of venue. The affidavits filed by Gray with his motion for change of venue were insufficient to create a presumption that he could not receive a fair trial in Newton County. If the presumption was created it was not of a type deemed irrebuttable according to the factors enumerated by the Court in White v. State, 495 So.2d 1346, 1349 (Miss.1986). The fact that Gray is black and was charged with capital murder of Mrs. Blackwell, who was white, is not enough to create an irrebuttable presumption that Gray could not receive a fair trial. The State sufficiently rebutted any presumption against a fair trial at the venue hearing and the subsequent voir dire. This assignment of error is without merit.
XI. WHETHER THE COURT ERRED BY ALLOWING AN IN-COURT IDENTIFICATION OF THE DEFENDANT BY A WITNESS.
155. Gray contends the in-court identification of him by witness Harry Jones was tainted by an allegedly suggestive pre-trial identification of Gray. Gray timely objected at trial arguing the procedures used by the police tainted Jones' identification at the jail and his subsequent in-court identification. A suppression hearing was had outside the presence of the jury.
156. Jones identified Gray as one of two persons he saw on the day Mrs. Blackwell was murdered wrestling in a car stopped on Turkey Creek Road in Newton County. He stated that one was a young black man but did not know whether the other person was black or white, male or female. Jones did state that the driver looked straight at him right before he “took off.” Jones testified that he had seen the car on the news the day following the murder and remembered it was the same car he had seen on the morning of the murder. He went to the Sheriff's office and explained what he had seen.
157. Jones stated he was shown five or six pictures, and he knew two or three of them. Jones was then shown an individual through a peephole in the jail and immediately identified Gray as the person he saw driving Mrs. Blackwell's car. The trial judge then made his ruling allowing Jones to testify. BY THE COURT: I fail to see how it can be argued that an impermissible lineup distorted this witness's identification, because according to his testimony, he saw photographs of those, and he knew most of those persons that he saw, then immediately he was shown the Defendant through a peephole, and he made identification. His identification in the Courtroom here is a positive identification. He testified that it was not assisted by the showing of the photographs or viewing the Defendant through a peephole, but it was based entirely upon his viewing the Defendant at the scene. The witness stated it was some twenty to thirty feet the Defendant was away from him, and that he looked directly at him. So your motion to suppress is denied.
158. Gray contends on appeal that the procedure by which Jones identified him at the jail was suggestive and flawed, because Jones knew the persons in some of the pictures. Gray asserts that Jones viewing him immediately after the photographic viewing made identification of Gray very likely. Gray also claims that Jones was receptive to suggestion that the persons he had seen in the car were the victim and Gray, because Gray was a young black man and Mrs. Blackwell was an elderly white female. 
159. This Court's review of suppression hearings on appeal is well settled: The standard of review for suppression hearing findings in a matter of pretrial identification cases is whether or not substantial credible evidence supports the trial court's findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted. Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986). The appellate review should disturb the findings of the lower court “only where there is an absence of substantial credible evidence supporting it.” [Emphasis added]. Ray v. State, 503 So.2d at 224. Ellis v. State, 667 So.2d 599, 605 (Miss.1995) (emphasis in original). 
160. The State submits there was substantial credible evidence to support the lower court findings. Even if the pretrial identification of Gray was impermissibly suggestive, the in-court identification does not necessarily have to be excluded. Reliability has been deemed the linchpin in determining the admissibility of the identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Nathan v. State, 552 So.2d 99, 104 (Miss.1989). The lower court must determine from the totality of the circumstances if the identification was reliable even though the confrontation procedure may have been suggestive. York v. State, 413 So.2d 1372, 1377-78 (Miss.1982).
161. In determining whether this standard has been met there are certain factors that must be considered. 1. Opportunity of the witness to view the accused at the time of the crime; 2. The degree of attention exhibited by the witness; 3. The accuracy of the witness' prior description of the criminal; 4. The level of certainty exhibited by the witness at the confrontation; 5. The length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); York, 413 So.2d at 1383.
162. Applying the factors set forth in Neil to the present case the following is clear: 1. Opportunity to view the accused- Jones testified that the car was stopped when he first approached it, but the driver took off. He stated that the driver looked straight at him before driving away. Jones stated that he got a good look at the man, because he was about twenty feet away from Gray when he saw him. 2. Degree of attention- Jones stated the persons in the car attracted his attention because they appeared to be wrestling. Jones said he figured it was a boyfriend and girlfriend fighting. 3. Accuracy of prior description- Jones described the driver of the car as a young, black man. He stated that he saw the individuals in the car around noon time. 4. Witness' level of certainty at confrontation- Jones immediately identified the person shown to him through the peephole as the person who he had seen driving Mrs. Blackwell's car. That individual was Rodney Gray. Jones stated that he based his in-court identification of Gray based on what he saw “out on the road” on the day Mrs. Blackwell was murdered, not what he saw at the jail. 5. Length of time between the crime and the confrontation- Jones stated that he recognized the car when he saw it on the news the day after Mrs. Blackwell was murdered. He contacted the law enforcement officials to report what he had seen. He identified Gray the same day, which was the day after he had seen him driving Mrs. Blackwell's car.
163. Gray alleges his case is analogous to Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). There the Supreme Court held an in-court identification inadmissible because of the unreasonable suggestiveness of the pre-trial lineup. In Foster the witness was shown a lineup of three suspects. Foster was set apart from the other two because he was taller and wore a leather jacket similar to the one worn by the person who had robbed the store where the witness worked. The witness was not sure after the first line-up and asked the police to permit a one-to-one confrontation with Foster. The witness still could not give a positive identification. A week to ten days later the police arranged a second line-up. Foster was the only person in the second line-up who had been in the original line-up. After the second line-up, the witness positively identified Foster as the robber. The Supreme Court held this to be clearly suggestive and to undermine the reliability of the witness identification process. Foster, 394 U.S. at 443, 89 S.Ct. 1127.
164. The case presently before the Court is clearly distinguishable. Jones made a positive identification immediately upon being shown Gray through the peephole. Even if the show-up identification was impermissibly suggestive, the reliability of the in-court identification is evident from the record. Jones' identification met the factors set forth in Neil. Jones testified that he identified Gray based on what he saw on the day Mrs. Blackwell was murdered rather than what he saw at the jail.
165. The Court holds that the findings of the trial judge at the suppression hearing was supported by substantial credible evidence in the record. Therefore, Gray's assignment of error is without merit.
XII. WHETHER THE COURT ERRED BY FAILING TO DISMISS THE INDICTMENT BECAUSE THE UNDERLYING FELONIES WERE LISTED IN THE DISJUNCTIVE.
166. Gray alleges the indictment charging him with capital murder was substantively defective because the two underlying felonies were listed in the disjunctive and therefore failed to state the essential facts of the offense charged. The indictment reads as follows: That Rodney Gray late of the County aforesaid, on or about the 15th day of August in the year of our Lord, 1994, in the County and State aforesaid, and within the jurisdiction of this Court, did willfully, unlawfully, feloniously and of his malice aforethought kill and murder Grace Blackwell, a human being, while engaged in the commission of the crime of kidnapping and/or rape, contrary to and in violation of Section 97-3-19-(2)(e), Miss.Code Ann. (1972), as amended, against the peace and dignity of the State of Mississippi. 
167. “It is a well-established principle of law that in order for an indictment to be sufficient, it must contain the essential elements of the crime charged.” Peterson v. State, 671 So.2d 647, 652-53 (Miss.1996). Gray alleges that the definiteness requirement of an indictment, found in URCCC 7.06, prohibits alternative charges or a charge that an offense was committed in one way or another. To support his position, he cites unto the Court the following cases: State v. Sam, 154 Miss. 14, 122 So. 101 (1929); Black v. State, 199 Miss. 147, 24 So.2d 117 (1945); West v. State, 169 Miss. 302, 152 So. 888 (1934); Powell v. State, 196 Miss. 331, 17 So.2d 524 (1944). Simply put, Gray alleges that the term “and/or” in this indictment means “while engaged in the crime of kidnapping or rape or both.” 
168. After a thorough review and search of the record, the Court can find no motion to demur or quash the indictment on this ground or any objection to the indictment's form. Gray did object to the indictment on other grounds. Gray filed a motion to quash the indictment on account of discrimination in the selection of grand jury foreperson. The lower court denied this motion. Gray filed a motion to quash the indictment against him for lack of a speedy trial and appointment of counsel. The lower court overruled this motion to quash the indictment. Gray did not allege a defect in the indictment in his motion for a new trial.  
169. The State argues that this issue is procedurally barred from being raised for the first time on appeal. “A trial judge will not be found in error on a matter not presented to him for decision.” Jones v. State, 606 So.2d 1051, 1058 (Miss.1992) (citing Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988)). Gray did not object at trial and allege the term “and/or” caused a defect in the indictment. Eliminating the word “or” would have cured the alleged error and would have been clearly an amendment of form not substance. Defects on the face of an indictment must be presented by way of demurrer. Brandau v. State, 662 So.2d 1051, 1054 (Miss.1995); Miss.Code Ann. § 99-7-21 (1994). When “the formal defect is curable by amendment ... the failure to demur to the indictment in accordance with our statute” will waive the issue from consideration on appeal. Brandau, 662 So.2d at 1055.
170. Gray filed several motions to quash the indictment for various reasons. None of the motions to quash mentioned a defect in the indictment as to the language in the charge against Gray. The alleged defect was not presented to the lower court for a ruling. This issue is procedurally barred because Gray attempts to raise it for the first time on appeal. 
171. Alternatively, the issue is without merit. This Court has made it “clear that the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Medina v. State, 688 So.2d 727, 730 (Miss.1996). Gray has failed to demonstrate such prejudice to this Court.
172. The indictment must be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Peterson v. State, 671 So.2d 647, 653-54 (Miss.1996); URCCC 7.06. The indictment is held to be sufficient if it contains the seven factors enumerated in URCCC 7.06. 1. The name of the accused; 2. The date on which the indictment was filed in court; 3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi; 4. The county and judicial district in which the indictment is brought; 5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient; 6. The signature of the foreman of the grand jury issuing it; and 7. The words “against the peace and dignity of the state.” Id. The indictment in the case presently before the Court met these requirements.
173. The indictment contained a charge of capital murder defined in Miss.Code Ann. § 97-3-19(2)(e). Therefore, the indictment was in compliance with Miss.Code Ann. § 99-17-20, and it is not necessary to specifically set forth the elements of the underlying felony used to elevate the crime to capital murder. Mackbee, 575 So.2d at 34-35; See Bullock v. State, 391 So.2d 601, 606 (Miss.1980); Bell v. State, 360 So.2d 1206, 1208-09 (Miss.1978). Gray was sufficiently informed of the underlying felonies and the essential facts constituting the offense of capital murder. 
174. Most recently the Court has spoken to this issue in State of Mississippi v. Berryhill, 703 So.2d 250 (Miss.1997). There the defendant was charged with capital murder while engaged in the commission of a burglary. The Court held “that capital murder indictments that are predicated on burglary are required to state the underlying offense to the burglary.” Id. at 255. This holding was limited to those capital murder indictments predicated on burglary. The Court stated: Simply put, the level of notice that would reasonably enable a defendant to defend himself against a capital murder charge that is predicated upon burglary must, to be fair, include notice of the crime comprising the burglary. Burglary is unlike robbery and all other capital murder predicate felonies in that it requires as an essential element the intent to commit another crime. Id. at 256 (emphasis added). Our holding in Mackbee and Peterson still controls as to all other capital murder predicate felonies. A capital murder indictment based on an underlying felony, other than burglary, does not have to specifically set forth the elements of the underlying felony used to elevate the crime to capital murder. Berryhill, 703 So.2d at 256; Peterson, 671 So.2d at 653-54; Mackbee, 575 So.2d at 34-35.
175. Gray's argument dealing with the term “and/or” has been dealt with before by the Court in Lockett v. State, 517 So.2d 1317, 1336 (Miss.1987). At the sentencing phase of Lockett's trial, an aggravating circumstance was submitted to the jury that stated, “Whether the capital offense was committed while the defendant was engaged in burglary, robbery and/or kidnapping, or in an attempt to commit one or more of such crimes.” Id. The Court held “[s]ince the evidence at trial was sufficient to support both the underlying felonies of burglary and robbery, it seems that the addition of the crime of kidnapping in the sentencing instruction was surplusage.” Id.
176. The State contends that the evidence presented against Gray was sufficient to prove both underlying felonies beyond a reasonable doubt. We agree. The State submits that the prosecution took on the burden of proving both underlying felonies. The State also asserts that presumably both underlying felonies were charged just in case the proof in one or the other was insufficient at trial, therefore allowing them to amend the indictment to conform to the proof. The State argues this was unnecessary because there was sufficient evidence at trial of both the kidnapping and the rape charges, as evidenced by the jury unanimously finding both as aggravating circumstances.
177. Gray's claims as to this issue are procedurally barred because he attempts to argue a facial defect in the indictment for the first time on appeal. His attempts to do so are contrary to Miss.Code Ann. § 99-7-21 (1994) and the prior holdings of this Court. Alternatively, his claims are without merit. The indictment complied with the requirements of URCCC 7.06 and adequately informed Gray of the underlying felonies used to charge him with capital murder. The evidence presented at trial was sufficient to prove both kidnapping and rape beyond a reasonable doubt. Therefore, this issue is without merit.
XIII. WHETHER THE COURT ERRED BY ALLOWING THE JAIL-HOUSE CONFESSIONS OF THE DEFENDANT TO HIS FORMER CELL-MATES INTO EVIDENCE.
178. Gray asserts that the testimony of his two former cell-mates, Russell Saunders and Cleveland McCall, should not have been admitted. Both testified that Gray had admitted to them that he was guilty of the crime for which he had been charged. Gray alleges that Saunders, a second time offender, was made a trusty shortly after he told Sheriff Cross what he had heard Gray say. Gray claims that McCall was biased against Gray, as well. He states this bias was shown in McCall's testimony when he asked about making bond. In his response to the question, McCall stated Gray had a hacksaw blade.
179. Gray then argues that the unreliability of cell-mate testimony of confessions is stuff of legend. Its use has historically produced injustice, and its intrinsic unfairness is a violation of the due process clause of the Fourteenth Amendment to the United States Constitution. 
180. Gray cites to this Court no authority to support his assertions. He alleges the unreliability of cell-mate testimony is “stuff of legend” and has historically produced injustice, but offers not one case to support his argument. It is the duty of the appellant to provide this Court with authority to support his arguments on appeal. Hoops, 681 So.2d at 526. “This Court has repeatedly held that failure to cite any authority may be treated as a procedural bar, and it is under no obligation to consider the assignment.” Weaver v. State, 713 So.2d 860, 863 (Miss.1997) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)). Secondly, the issue is procedurally barred because Gray did not object at trial to the testimony of either Saunders or McCall. “(Counsel may not sit idly by making no protest as objectionable evidence is admitted, and then raise the issue for the first time on appeal.)” Davis, 684 So.2d at 658(quoting Cole v. State, 525 So.2d 365, 369 (Miss.1987)). This issue clearly invokes the procedural bar. 
181. Alternatively, this claim is without merit. Gray claims the two inmates stood to gain something in exchange for their testimony. This Court has not viewed such testimony favorably. See McNeal v. State, 551 So.2d 151, 158 (Miss.1989). The evidence in the record before the Court does not establish the inmates received anything in exchange for their statements. True, Saunders was made a trusty sometime after he told the sheriff what Gray had said, but his testimony indicated that he had served sufficient time to become a trusty. The charges against McCall were dropped after the man who claimed McCall had stolen his car failed to show up in court. 
182. “(The credibility of a witness, even a convict witness, is for the jury.)” Carr, 655 So.2d at 837 (quoting Sudduth v. State, 562 So.2d 67, 70 (Miss.1990)). The witness' “criminal record, character, motivation, reliability, and the circumstances surrounding his recitation of statements made ... were all factors properly left to the jury to weigh.” Id.
183. The State argues that Gray could have submitted an instruction requiring the jury to weigh an informant's testimony with caution and suspicion. Gray submitted Instruction D24, which attempted to instruct the jury to consider proof of bias, prejudice, or motive or whether or not Saunders and McCall received preferential treatment. This instruction was refused because it was repetitious with Instruction D-18, which instructed the jury they were the sole judges of the credibility of witnesses. This failure to submit an instruction to weigh the credibility with caution and suspicion should serve as a bar to raise this point on appeal. Carr, 655 So.2d at 837.
184. Gray was able to cross-examine Saunders and McCall. The jury was aware that both of these individuals were cell-mates of Gray at the time they heard his statements. The defense attorney even called them “snitches.” The jury was aware their testimony might be unreliable.
185. This issue is procedurally barred and without merit.
XIV. WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO COUNSEL.
186. Gray claims he was denied the right to counsel after he was taken into custody on August 15, 1994. He states he was first appointed counsel on March 22, 1995. He further alleges that he was denied an initial appearance within 48 hours of his arrest in violation of URCCC 6.03. Lastly, Gray complains the statements made to Saunders and McCall were made during the seventh month period between August of 1994 and March 1995 when he was without counsel. He argues that these statements might not have been made if counsel had been appointed.
187. As has been discussed previously in Issue I., Gray was arrested on August 15, 1994, for the burglary of Mrs. Blackwell's home. According to the testimony of Sheriff Cross, Gray was charged with burglary, given an initial appearance, and had an attorney appointed to represent him on that charge. On March 15, 1995, Gray was arrested and formally charged with the capital murder of Mrs. Blackwell. Counsel was appointed to represent Gray regarding the capital murder charge on March 22, 1995. 
188. Gray's argument clearly misstates the record. He was not arrested on August 15, 1994, for the murder of Mrs. Blackwell. On that day, Gray was arrested for the burglary of her home. He was not charged with the capital murder of Mrs. Blackwell until he was arrested on March 15, 1995. He promptly had counsel appointed for him on March 22, 1995. “Under the Mississippi Constitution, the right to counsel ‘attaches once the proceedings reach the accusatory stage,’ which is ‘earlier in the day than does the federal right.’ ” Johnson v. State, 631 So.2d 185, 187-88 (Miss.1994) (citation omitted). “The ‘accusatory stage’ is defined by Mississippi law to occur when a warrant is issued or, ‘by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.’ ” Ormond v. State, 599 So.2d 951, 956 (Miss.1992) (quoting Miss.Code Ann. § 99-1-7 (Miss.1972)). 
189. Clearly, Gray was bound over to answer the charge of capital murder when he was arrested on March 15, 1995. He was appointed counsel seven days later on March 22, 1995. This was not a denial of his right to counsel. Even if Gray had been denied his right to counsel, he must be able to “show some adverse effect or prejudice to his ability to conduct his defense before denial of this right to counsel constitutes reversible error.” Ormond, 599 So.2d at 956 (citing Williamson, 512 So.2d at 876). 
190. Gray has not proven that his defense was prejudiced. Gray alleges that he was prejudiced because during his incarceration a key witness that could have provided crucial information to his defense died in May of 1995. Gray was appointed counsel in March of 1995. Nearly two months passed without any action by Gray or his attorneys to secure the testimony of this witness prior to his death in May of 1995. At trial no evidence was presented as to what this witness' testimony would have been. Gray's argument is speculative, and not evidence of prejudicial action by the State. Ewell, 383 U.S. at 122, 86 S.Ct. 773.
191. Gray argues that the statements to Saunders and McCall would not have been made were it not for his lack of counsel. This argument is specious. The statements were made to McCall in either October or November of 1995. This was seven or eight months after counsel was appointed in March of 1995 to represent Gray on the capital murder charge. His argument that he would not have made the statements to McCall had he been represented by counsel is without merit. It is mere speculation to say that he would not have made the statements to Saunders if he had counsel appointed to represent him on the capital murder charge when that same representation did not prevent him from making the statements to McCall.
192. Gray also argues that he would not have pled guilty to three felony charges in September of 1995, which made him a convicted felon for cross-examination purposes, if he had counsel appointed for him on the capital murder charge. Again, Gray was appointed counsel to represent him on the murder charge in March of 1995. He cannot claim that because he was denied counsel he pled guilty to these unrelated felonies. The record before this Court clearly indicates that he was in fact represented by counsel on the murder charge when he pled guilty to those unrelated felony crimes.
193. This argument is without merit. There was no denial of Gray's right to counsel as to the murder charge. Gray had counsel appointed for him seven days after he was arrested and charged with capital murder. Even if there had been a denial of his right to counsel, Gray has failed to demonstrate to this Court how his defense was prejudiced.
XV. WHETHER THE EVIDENCE IS SUFFICIENT TO SUPPORT THE SENTENCE.
194. Gray claims the evidence was insufficient to support a sentence imposing the death penalty. He asserts the only testimony offered by the State in the sentencing phase of the trial was victim impact testimony. He states the proof offered at the sentencing phase did not address the statutory aggravating circumstances enumerated in Miss.Code Ann. § 99-19-101 (1994). Gray argues that proof of aggravating circumstances in the sentencing phase of a capital murder trial must be proof beyond a reasonable doubt. White v. State, 532 So.2d 1207, 1220 (Miss.1988).
195. The jury found as an aggravating circumstance that Gray murdered Mrs. Blackwell while engaged in the crimes of kidnapping and rape. Gray claims there was no evidence of kidnapping, much less proof of such crime beyond a reasonable doubt as required by White.
196. Gray complains that the only testimony of the circumstances of the killing was from Russell Saunders during the guilt phase of the trial. Saunders stated that Gray had told him that the shooting of Mrs. Blackwell was an accident. Gray asserts that because this is an admission of Miss.Code Ann. § 99-19-101(7)(a) (1994), “the defendant actually killed,” the verdict is not invalidated, but the determinations that Gray attempted to kill, intended a killing take place, and contemplated that lethal force would be employed were not proven beyond a reasonable doubt. Because the jury stated they had found these factors to have been proven beyond a reasonable doubt, Gray claims it evidences bias and prejudice on the part of the jury. In light of this argument, he requests that his sentence be reduced to life imprisonment or a resentencing hearing ordered. 
197. Gray did not object to Sentencing Instruction S-6, which defined the Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), factors and instructed the jury on what aggravating circumstances it could consider. This issue is procedurally barred. Gray's attorney was specifically asked if he had an objection to Sentencing Instruction S-6 and replied “No objection.” Where a defendant fails to contemporaneously object to an instruction at trial, he is procedurally barred from raising this issue on appeal. Lester, 692 So.2d at 799; Ballenger, 667 So.2d at 1264; Brown, 690 So.2d at 297. 
198. Alternatively, this claim is without merit. There was sufficient evidence to support the finding that this crime took place during a kidnapping. After the guilt phase of the trial, the State moved that all the evidence, including witnesses' testimony and all exhibits, from the guilt phase be brought forward and admitted in the sentencing phase. This motion was granted without objection from Gray.
199. There was sufficient evidence presented at the guilt phase to prove the aggravating circumstances. Arlene McCree testified that Mrs. Blackwell acted very strangely when she came to the drive-through window at the bank and asked for $1200. McCree stated that Mrs. Blackwell kept trying to move her lips to tell her something. As Mrs. Blackwell left the bank, McCree heard her say, “I'm hurrying. I'm hurrying.” Harry Jones testified that he saw Gray wrestling with someone in Mrs. Blackwell's car. Richard Weir stated he saw a black man trying to grab a white female in a car that looked like Mrs. Blackwell's. John Riley testified that Mrs. Blackwell's door had been left open and her telephone wires had been disconnected. Cleveland McCall testified that Gray had told him that he took Mrs. Blackwell to the bank to get some money, he raped her, and he shot her.
200. The record indicates that the evidence presented to the jury was sufficient to prove kidnapping beyond a reasonable doubt. If there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict ... is thus placed beyond our authority to disturb. Holly v. State, 671 So.2d 32, 40 (Miss.1996) (quoting McFee, 511 So.2d at 133-34).
201. Gray misunderstands the requirements of Enmund, as incorporated in Miss.Code Ann. § 99-19-101(7) (1994). The jury need only find one of the enumerated factors in order to return and impose a sentence of death. Lockett, 517 So.2d at 1338; See Miss.Code Ann. § 99-19-101(7) (1994). However, the jury found beyond a reasonable doubt that all four existed.
202. In his argument as to this issue, Gray misstates the record and the law. His assignment of error is procedurally barred for failure to object at trial. Alternatively, this issue is without merit. The jury found beyond a reasonable doubt all four of the factors in Miss.Code Ann. § 99-19-101(7) (1994). There is sufficient evidence in the record to support a verdict imposing a death sentence, and this Court will not disturb such a verdict.
XVI. WHETHER THE COURT ERRED BY GRANTING S-3 OF THE GUILT PHASE OF THE TRIAL.
203. Gray claims that the lower court erred by giving Instruction S-3. He alleges such an instruction prefers a verdict of guilt of capital murder to a verdict of guilt of simple murder. Instruction S-3 provides: The Court instructs the Jury that if the State has failed to prove all of the essential elements of the crime of Capital Murder, you may consider the lesser charge of Murder. However, it is your duty to accept the law given to you by the Court; and if the facts and the law warrant a conviction of the crime of Capital Murder, then it is your duty to make such finding uninfluenced by your power to find a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime. If you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in the indictment and testified about, that the Defendant, Rodney Gray, did willfully, unlawfully, feloniously, and without the authority of law, and of his malice aforethought, kill and murder Grace Blackwell, a human being, but that he, the said Rodney Gray, was not then and there engaged in the commission of the crime of kidnapping or the crime of rape of Grace Blackwell, then it is your duty to find the Defendant guilty of Simple Murder.
204. Gray argues that this instruction violates the due process clause of the state and federal constitutions because it has a presumption in favor of capital murder vis-a-vis simple murder. He also asserts the instruction coerces jurors towards convicting the accused of capital murder even though some may believe him to be guilty only of simple murder.
205. The State submits that Gray did not object to this instruction being given at trial. The instruction is marked as being given, but the judge skipped it when going over the instructions with the attorneys. BY THE COURT: I am going to treat it as a circumstantial evidence case. It is almost entirely, so I am going to treat it that way. What do you say to S-1? BY MR. LEE: No objection. BY THE COURT: Given. S-2? Given. BY MR. LEE: Okay. BY MR. TURNER: Judge, in light of your ruling, I have S-4 I want to submit. It talks about circumstantial evidence. BY THE COURT: What do you say to S-4? BY MR. LEE: No objection. BY THE COURT: Given. S-5?
206. The record indicates that S-3 was missed by both the State and the Defense. However, when Instruction S-3 was read to the jury by the judge, Gray did not object. Because Gray did not enter a contemporaneous objection when the instruction was read to the jury, he should be barred from raising the issue for the first time on appeal. Where a Defendant fails to contemporaneously object to an instruction at trial, he is procedurally barred from raising this issue on appeal. Lester, 692 So.2d at 799; Ballenger, 667 So.2d at 1264; Brown, 690 So.2d at 297. 
207. In the alternative, Gray's claim as to this issue is without merit. This Court has considered such “acquit-first” instructions before. There is nothing in Mississippi jurisprudence that prohibits such an instruction. Carr, 655 So.2d at 848. Jury “( ... instructions should be read in their entirety to determine if there was error).” Walker, 671 So.2d at 608 (quoting Chase, 645 So.2d at 852). Gray's claim that the instruction coerces jurors into convicting of capital murder even though they may believe him guilty only of simple murder is unfounded. This Court has held such a result is not required or warranted from this instruction. Chase, 645 So.2d at 852.
208. This assignment of error is procedurally barred for lack of an objection at trial. Alternatively, the issue is without merit because Mississippi law does not prohibit the giving of such an instruction.
XVII. WHETHER THE COURT ERRED BY GRANTING S-4 ON CIRCUMSTANTIAL EVIDENCE AT THE GUILT PHASE OF THE TRIAL.
209. Gray asserts that Instruction S-4 is erroneous because it provides: The Court instructs the Jury that it is not necessary that facts be proved by direct evidence, but may be proved by circumstantial evidence. Circumstantial evidence is evidence which proves a fact from which an inference of the existence of another fact may be shown. Both circumstantial evidence and direct evidence are equally admissible at trial. Further, the guilt of the defendant may be proved wholly by circumstantial evidence, so long as such guilt is proven beyond a reasonable doubt.
210. Gray argues that wholly circumstantial evidence must also prove guilt to the exclusion of every other reasonable hypothesis. Barrett v. State, 253 So.2d 806, 809 (Miss.1971). He claims because this instruction did not contain the language “to the exclusion of every reasonable hypothesis consistent with innocence,” it is erroneous. Thus, he states the verdict must be reversed.
211. The State asserts the procedural bar should be applied because Gray did not object to Instruction S-4 when it was submitted. The Court agrees. Where a defendant fails to contemporaneously object to an instruction at trial, he is procedurally barred from raising this issue on appeal. Lester, 692 So.2d at 799; Ballenger, 667 So.2d at 1264; Brown, 690 So.2d at 297. 
212. Alternatively, the issue is without merit. Although Instruction S-4 did not contain the language “to the exclusion of every other reasonable hypothesis consistent with innocence,” other instructions given to the jury did. See S-1 (C.P.260), S-2 (C.P.261), D-2 (C.P.269), D-3 (C.P.270), D-7 (C.P.274), and D-13 (C.P.278). “This Court has consistently stated that jury instructions must be considered as a whole.” Walker, 671 So.2d at 608 (citing Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990)). 
213. Gray also cited Parker v. State, 606 So.2d 1132 (Miss.1992), to support his claim that Instruction S-4 was erroneous. Parker does not support Gray's claim. The typical circumstantial evidence instruction was more of a peripheral issue in Parker. The main issue dealing with circumstantial evidence was the “two theory” instruction. This Court in Parker held that a “two-theory” instruction is required in an entirely circumstantial evidence case. Parker, 606 So.2d at 1140-41.
214. The State submits that this case was not entirely circumstantial. Gray made statements to two cell mates admitting to the murder of Mrs. Blackwell. Based on these statements, this case is taken out of the circumstantial context. Taylor, 672 So.2d at 1270. See also Mack v. State, 481 So.2d 793, 795 (Miss.1985). The trial judge granted the circumstantial evidence instructions out of an abundance of caution.
215. In addition, the State directs this Court's attention to Instruction D-5, where the lower court granted a “two theory” instruction. Instruction D-5 provides: The Court instructs the jury that were there are two plausible theories, sustained by the evidence, one tending to show the Defendant not guilty, and the other tending to show the Defendant guilty, and the jury is unable to determine which theory is true, it must accept the theory favorable to the Defendant, and find the Defendant not guilty.
216. This assignment of error is procedurally barred because Gray failed to object at the time the instruction was given. Further, this instruction was unnecessary, but was given out of abundance of caution. When considering the instructions as a whole, the jury was properly instructed as to the proof required when considering circumstantial evidence. Therefore, this issue is without merit.
XVIII. WHETHER THE EVIDENCE SUPPORTED A KIDNAPPING INSTRUCTION AT GUILT PHASE OF THE TRIAL.
217. Gray alleges the trial judge erred in granting Instruction S-5, which described the elements of kidnapping. Gray argues that no evidence of kidnapping was presented to the jury. Therefore, granting the instruction was error requiring reversal of the verdict. Gray cites Wadford v. State, 385 So.2d 951 (Miss.1980), to support his argument.
218. Gray did not offer a pinpoint cite in Wadford to indicate which point in the case supported his proposition. We can only presume Gray wishes to direct the Court's attention to the rule stated in Pittman v. State, 297 So.2d 888, 893 (Miss.1974), that holds instructions are only to be given where they are applicable to the facts developed in the case. Wadford, 385 So.2d at 954.
219. Gray objected at trial to the giving of Instruction S-5 claiming the evidence did not support such an instruction. The trial court overruled the objection and stated in the record its reasoning. BY THE COURT: Given. S-5? BY MR. LEE: I am going to object to that instruction. There is no proof of the kidnapping in evidence. BY THE COURT: Objection overruled. The testimony of Mrs. McCree, I believe her name is, the teller at the Louin Branch Bank, she testified as to the peculiar circumstances that occurred there. That was in Jasper County, and then through the testimony of the gentleman at La-Z-Boy, whatever his name was, he testified he saw the red vehicle with the Black male and White female struggling, and the testimony of Jones in another area of Newton County, who testified he recognized the Defendant and some unknown person appearing to be struggling. Then later the evidence being the lady was killed northeast of Decatur, which is approximately eight miles from the site near Turkey Creek. So, I think that is sufficient evidence to warrant the jury to find the Defendant guilty of the crime of kidnapping. So your objection is overruled, and it is given.
220. Before an instruction can be given, it must be supported by the evidence. Ballenger, 667 So.2d at 1255. The trial judge noted on the record that the evidence presented to the jury supported such an instruction. For these reasons and those discussed in Issue XV regarding the sufficiency of the evidence to prove kidnapping, we find this issue is without merit.
XIX. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
221. Gray states that his conviction of capital murder required proof that he killed Mrs. Blackwell while engaged in the commission of rape or kidnapping. He argues that no evidence of kidnapping was presented to the jury and the evidence of rape is circumstantial except for the testimony of Cleveland McCall, who stated Gray admitted raping Mrs. Blackwell. Gray also contends the evidence did not exclude the possibility of consensual sexual intercourse. Lastly, he argues that no evidence of penetration was presented to the jury. Therefore, he claims he was not proved to be guilty of capital murder.
222. All of these claims and allegations have been previously discussed in this opinion in Issues VIII., XV., and XVIII. The record clearly supports a finding of guilt and sentence of death. This Court has stated “[w]hen reviewing a challenge to the weight of the evidence, this Court must determine whether the trial judge abused his discretion....” Taylor, 672 So.2d at 1256. “This Court, accepting as true all evidence favorable to the State, will determine whether ‘the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.’ ” Id. (quoting Wetz v. State, 503 So.2d 803, 812-13 (Miss.1987)).
223. Based on the evidence in the record presented before the Court, we hold that the jury verdict was not against the overwhelming weight of the evidence. This issue is without merit.
224. This Court must finally decide if the death sentence in this case “is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Miss.Code Ann. § 99-19-105(3)(c) (1994). If the sentence is disproportionate, this Court may “[s]et the sentence aside and remand the case for modification of the sentence to imprisonment for life.” Miss.Code Ann. § 99-19-105(5)(c) (1994). A comparison is made with other cases in which the death penalty was imposed and heard on appeal by this Court, considering the crime and the defendant. Cabello v. State, 471 So.2d 332, 350 (Miss.1985). 
225. Having given individualized consideration to the both the crime and defendant in the case sub judice, this Court can find nothing that would make the death penalty excessive or disproportionate. The record reflects that Gray: (1) abducted the victim from her home; (2) forced her to withdraw money from her bank account; (3) raped her; (4) shot her in the face with a shotgun; (5) ran over her with her own car; and (6) eventually murdered her. Considering these facts in comparison to other cases, there is nothing that would disqualify this defendant from receiving the death penalty. Holland v. State, 705 So.2d 307 (Miss.1997) (death sentence was proportionate where the defendant asphyxiated the victim by stuffing panties down her throat and tying a shirt around her neck, inflicted stab wounds to her chest, dealt a crushing blow to her head, and sexually assaulted her); Brown v. State, 682 So.2d 340 (Miss.1996), cert. denied, 520 U.S. 1127, 117 S.Ct. 1271, 137 L.Ed.2d 348 (1997) (death sentence affirmed where the defendant shot a store clerk four (4) times-once in the head, once through the heart, and twice in the back-during the commission of an armed robbery).
226. All of the issues before this Court are either procedurally barred or are without merit. Rodney Gray raises no issue meriting reversal. The record supports his conviction of capital murder and the sentence requiring the imposition of the death penalty. Further, upon review of the totality of this case, we can say that the death penalty is not disproportionate as applied to Gray. Therefore, this Court affirms the lower court's decision finding Rodney Gray guilty of capital murder and imposing the death penalty.
227. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7) (1972) AND M.R.A.P. 41(a).
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and BANKS, McRAE, SMITH, MILLS and WALLER, JJ., concur.
Gray v. State, 887 So.2d 158 (Miss. 2004). (PCR)
Background: Defendant filed application for leave to file petition for postconviction relief from capital murder conviction and death sentence, as affirmed, 728 So.2d 36,cert. denied, 526 U.S. 1055, 119 S.Ct. 1366, 143 L.Ed.2d 526.
Holdings: The Supreme Court, Cobb, J., held, inter alia, that: (1) defendant was procedurally barred by operation of res judicata from relitigating issues that had already been decided on direct appeal; (2) ineffective assistance of counsel issue upon which defendant sought leave to file petition for postconviction relief was not supported with requisite new or additional evidence not offered or unavailable to trial court to warrant further proceedings; (3) defense counsel did not render ineffective assistance; (4) defendant's application for leave to file petition was facially insufficient to warrant hearing on issue as to whether he was mentally retarded and thus ineligible for death sentence; (5) death penalty statute did not violate defendant's right of protection against cruel and unusual punishment; (6) sentencing verdict was not defective for its failure to include written confirmation that jury found beyond reasonable doubt aggravating factors supportive of death sentence; and (7) defendant was not denied right to fair trial on basis of alleged cumulative errors. Affirmed.
COBB, Presiding Justice, for the Court.
1. On January 25, 1996, a Newton County jury convicted Rodney Gray of the capital murder of Grace Blackwell. This Court thereafter affirmed Gray's conviction and sentence on direct appeal. Gray v. State, 728 So.2d 36 (Miss.1998). Gray filed a petition for writ of certiorari with the United States Supreme Court, which that Court denied. Gray v. Miss., 526 U.S. 1055, 119 S.Ct. 1366, 143 L.Ed.2d 526 (1999). Gray now seeks leave to pursue post-conviction relief in the trial court.
2. The purpose of post-conviction proceedings is to bring forward facts to the trial court that were not known at the time of the judgment. Williams v. State, 669 So.2d 44, 52 (Miss.1996). The procedure is limited to those facts and matters which could not or should not have been brought at trial or on direct appeal. Id.; Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2003). If newly discovered evidence would likely produce a different result or verdict and the proponent shows that the evidence was “discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching” then such evidence warrants a new trial. Ormond v. State, 599 So.2d 951, 962 (Miss.1992).
3. On the morning of August 15, 1994, 79-year-old Grace Blackwell drove to the drive-through teller window of her bank in Jasper County. Blackwell presented a blank check and asked the teller to fill the check out in the amount of $1200. The teller's view of the car's back seat was blocked by hanging clothes. The teller testified that after giving her the money, she heard Blackwell say, “I'm hurrying, I'm hurrying.” The teller notified the police, and they went to Blackwell's home only to find the front door open and the phone disconnected. Witnesses testified that they saw Blackwell's car around noontime being driven by a young black male, and one witness identified the driver as Rodney Gray.
4. Police found Blackwell's body at the end of a bridge in Newton County at 1:40 p.m. Her car was found elsewhere in Newton County. Investigators determined that Blackwell had been killed by a shotgun blast to the mouth. Later, an autopsy revealed that Blackwell had also been raped and that her body had been run over by a car.
5. Investigators questioned Rodney Gray on August 15 about Blackwell's disappearance and arrested him that same day. While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her that he had hidden money in a bathroom vent. A search of Curry's trailer turned up $1,123 hidden in the bathroom air duct. The clothes and boots which Gray had been wearing on the day of the murder were found in a bucket behind Curry's trailer.
6. A Newton County grand jury indicted Gray for the capital murder of Grace Blackwell in violation of Miss.Code Ann. § 97-3-19(2)(e) (murder while engaged in the commission of the crime of kidnapping/and/or rape). Attorneys Thomas D. Lee and B. Jackson Thames, Jr. represented Gray in the trial court. At trial, FBI experts testified that the foot print at the Blackwell home came from Gray's boot and that tests on DNA samples taken from Blackwell's undergarments showed that Gray was the likely source. The probability that the semen came from someone other than Gray was 1 in 446,000,000. Further testimony came from Russell Saunders, one of Gray's cell mates, who testified that while in jail Gray told him that he (Gray) had forced Blackwell to withdraw money from the bank, raped her and then shot her with a .410 shotgun. The jury found Gray guilty of capital murder and then heard evidence as to mitigating and aggravating circumstances pertinent to the determination of the sentence which should be imposed on Gray. After hearing testimony from several witnesses from the State and the defense, the jury reached a unanimous verdict finding that Rodney Gray should suffer death for the capital murder of Blackwell.
I. Ineffective Assistance of Counsel:
7. Gray alleges several instances of ineffective assistance of counsel in support of his motion for post-conviction relief. The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To receive post-conviction relief for ineffective assistance of counsel, a claimant must demonstrate (1) that counsel's performance was deficient and (2) that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). There is no constitutional right to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). The defendant has a right to have competent counsel, but this right does not entitle the defendant to have an attorney who makes no mistakes at trial. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Thus, the focus of the inquiry is whether counsel's assistance was reasonable considering all the circumstances. Stringer, 454 So.2d at 477.
8. Under the first prong of the Strickland test, defense counsel is presumed competent. Cabello, 524 So.2d at 315. A reviewing court must strongly presume that counsel's conduct falls within a wide range of reasonable professional assistance. Furthermore, the reviewing court must consider whether the challenged act or omission might be sound trial strategy. Stringer, 454 So.2d at 477.
9. In evaluating the second prong of the Strickland test, a reviewing court must determine whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. This means a probability sufficient to undermine the confidence in the outcome. Mohr, 584 So.2d at 430. Additionally, in a death penalty case, the ultimate inquiry is “whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently re-weighs the evidence-would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. If the post-conviction application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v. State, 743 So.2d 326, 334 (Miss.1999) (citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996)).
A. Change of Venue
10. Gray's first allegation of ineffective assistance of counsel is that his trial counsel failed to properly argue a motion for change of venue. Gray raised this issue on direct appeal to this Court after his conviction. Gray v. State, 728 So.2d at 63. At trial, the motion was accompanied by two affidavits alleging that Gray could not receive a fair trial in Newton County because the crime involved a black defendant and a white victim. During the hearing on the motion, the State presented six witnesses who testified to the contrary. Id. The trial court denied the motion, and this Court held that the State had successfully rebutted the presumption that Gray could not receive a fair trial in Newton County. Id. at 66.
11. This Court addressed the issue of whether the trial court properly denied the motion to transfer venue on Gray's direct appeal. Thus, Gray is now procedurally barred by res judicata from relitigating this issue through post-conviction relief. Miss.Code Ann. § 99-39-21(3) (1972 & Supp.2003). Furthermore, Gray cannot relitigate this issue in the guise of an ineffective assistance of counsel claim. Williams v. State, 722 So.2d 447, 449 (Miss.1998). On the merits, Gray offers as evidence to support his request for post-conviction relief only the motion to transfer venue and attached newspaper articles presented to the trial court. However, Gray does not present new or additional evidence not offered or unavailable to the trial court regarding the issue of community prejudice and whether he could receive a fair trial in Newton County. Accordingly, this issue is without merit.
12. Gray next argues that his trial counsel were ineffective in failing to seek a continuance of the trial after the motion for change of venue was denied. Inasmuch as the motion for change of venue was properly denied, counsel cannot be faulted for deciding not to seek a continuance. The failure to raise objections or make motions which have no merit cannot be viewed as poor representation. Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994). The motion to change venue was denied on October 30, 1995, and trial was not scheduled to begin until November 27, 1995. Trial counsel did in fact file a motion for continuance based upon other matters on November 17, 1995, and the trial was postponed until January 22, 1996. Thus, Gray's trial counsel requested and obtained a continuance lasting 56 days from the date of the trial setting and 84 days from the date of the denial of the motion to transfer venue. Accordingly, this issue is without merit.
C. Motion to quash the jury venire
13. Gray next asserts that his trial counsel were ineffective by failing to develop an “adequate and sufficient record” as to potential black jurors struck by the State for cause. After the removal of jurors for cause, Gray's trial counsel moved to quash the venire for two reasons: (1) there was an insufficient number of African-Americans on the panel in relation to the percentage of blacks in Newton County, and (2) the printed juror summonses mailed to potential jurors had “capital murder” printed on them in bold print, thus prejudicing the prospective jury pool. The trial court denied this motion. Gray asserts that the motion to quash the jury venire should have been granted and that but for trial counsel's ineffective representation, the outcome would likely have been different.
14. Gray fails to explain with any specificity in what manner the record was purportedly deficient. To establish a prima facie case alleging that a jury represents an unfair cross-section of the community, Gray must demonstrate: “(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Lanier v. State, 533 So.2d 473, 477 (Miss.1988). Gray offered no evidence at trial or in the present case demonstrating “systematic exclusion.” The record before this Court shows that the trial judge overruled many of the State's challenges for cause and that the trial judge excluded both black and white jurors for valid reasons of cause, including hardship. Thus, Gray has failed to establish a prima facie case of systematic exclusion under the standard set out in Lanier. Gray's inability to meet the standard set out in Lanier also prevents him from demonstrating that his trial counsel's performance was deficient under the first prong of the Strickland standard.
15. In regard to Gray's claim that trial counsel was ineffective by failing to offer proof of jury prejudice resulting from the words “capital murder” being printed on the jury summons form, the record shows that trial counsel conducted a voir dire of the panel regarding potential prejudice resulting from the jury summons. Gray v. State, 728 So.2d at 66. Gray's trial counsel at both the trial and direct appellate level could offer no proof besides speculation that the venire was prejudiced as a result of the summons. Id. at 66-67. Furthermore, Gray has presented no additional evidence of prejudice of the jury venire with his petition for post-conviction relief. Accordingly, the issue of ineffective assistance of counsel regarding the motion to quash the jury venire is without merit.
D. Motion to dismiss
16. Next, Gray alleges that trial counsel failed to properly challenge the indictment, arguing that the underlying felonies listed in the indictment caused it to be substantially defective and counsel's motion to dismiss the indictment should have been granted. The Court analyzed this issue on direct appeal and found it to be procedurally barred. Despite the bar, the Court further analyzed the issue of the sufficiency of the indictment and found it to be without merit. Id.
17. The indictment charged that Rodney Gray “did willfully, unlawfully, feloniously and of his malice aforethought kill and murder Grace Blackwell, a human being, while engaged in the commission of the crime of kidnaping [sic] and/or rape.” Gray asserts that the indictment fails to state the essential elements of the offense charged and that the motion to dismiss was denied because trial counsel was ineffective in “properly addressing the issue.” On direct appeal, this Court noted that pursuant to Rule 7.06 of the Uniform Rules of County and Circuit Court, an indictment is sufficient where it discloses: 1) the name of the accused; 2) the date on which the indictment was returned; 3) a statement that the prosecution is brought in the name of the State; 4) the county and judicial district in which the indictment is brought; 5) the date on which the offense was committed; 6) the signature of the grand jury foreman; and, 7) the words, “against the peace and dignity of the state.” Gray, 728 So.2d at 70. The Court specifically held that the indictment adequately put Gray on notice of the charge of capital murder and that it was not necessary to specifically set forth all the elements of the underlying felonies contained in the indictment. Id. at 70-71. Thus, the second prong of the Strickland test requiring that, but for counsel's errors the result would have been different, is not met. Furthermore, the evidence presented at trial was sufficient to prove both kidnaping and rape beyond a reasonable doubt. The motion to dismiss the indictment was properly denied simply because it lacked merit and not because it was ineffectively argued. The claim of ineffective assistance of counsel regarding the motion to dismiss the indictment is without merit.
E. Jail house confessions
18. Gray alleges that trial counsel were ineffective for failure to exclude from evidence the statements which Gray made to his cell mates as well as the failure to secure an adequate cautionary instruction after the statements were admitted. Russell Saunders and Cleveland McCall both shared a cell with Gray after his arrest, and both testified at trial that Gray had admitted his guilt to them. However, Gray's trial counsel cross-examined both of them on their testimony. Id. at 71-72. On direct appeal, this Court initially held the issue to be procedurally barred but went on to alternatively find that the issue had no merit.
Gray claims the two inmates stood to gain something in exchange for their testimony. This court has not viewed such testimony favorably. See McNeal v. State, 551 So.2d 151, 158 (Miss.1989). The evidence in the record before the court does not establish the inmates received anything in exchange for their statements. True, Saunders was made a trusty sometime after he told the sheriff what Gray had said, but his testimony indicated that he had served sufficient time to become a trusty. The charges against McCall were dropped after the man who claimed McCall had stolen his car failed to show up in court. Gray, 728 So.2d at 72. Since the Court has previously considered this issue both procedurally and on the merits and no new evidence has been provided in the petition for post-conviction relief, the doctrine of res judicata applies and bars reconsideration. Miss.Code Ann. § 99-39-21(3) (1972 & Supp.2003).
F. Failure to develop/present mitigating evidence
19. Gray alleges that trial counsel were ineffective by failing to investigate and present mitigating evidence during the sentencing phase of the trial. Gray argues that if trial counsel had conducted a thorough investigation of his background, ample evidence of mental illness and mental retardation would have been discovered and could have been presented to the jury for mitigation in sentencing. As evidence of this assertion, Gray's current counsel attaches the affidavits of Annie Lois Tatum (Gray's mother), Deirdre Jackson and Tomika Harris of the Mississippi Office of Capital Post-Conviction Counsel, Stephanie Wilson and Melissa Jones (Gray's older sisters), and Ola Jones (Gray's former teacher). Gray argues that the information obtained post-trial from the above affiants and other individuals who knew him as a child supports his claim that he suffers from mild mental retardation and that had such information been presented to the jury, there is a reasonable probability that the outcome of the sentencing proceeding would have been markedly different.
20. The failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel. Williams v. State, 722 So.2d at 450 (citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997)). Furthermore, where a motion for post-conviction relief makes no showing that interviewing additional witnesses would have produced a different outcome, the petitioner has failed to make out a prima facie claim of ineffective assistance of counsel. United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989); Foster v. State, 687 So.2d at 1134. In addition, this Court has previously held that so long as trial counsel presents to the sentencing jury evidence of a capital defendant's educational background, psychological profile and childhood experience, there is no professional error under the Strickland standard. Brown v. State, 798 So.2d 481, 498-99 (Miss.2001). In the present case, Gray's defense attorneys did, in fact, present a case in mitigation for the jury to consider.
21. At the sentencing phase of the trial, defense counsel called Rosa Gallaspy and Luise Bradley to testify that they had watched Gray grow up and that he had no predisposition toward violence. Gray's attorney also called Roosevelt Jones, a local minister, and Hattie Morgan, a neighbor, to give similar testimony. Rodney Gray's mother, Annie Tatum, testified at the sentencing phase of the trial that her divorce from Rodney's father was a source of emotional trauma to Rodney and that the divorce adversely impacted his performance in school.
22. In regard to Gray's mental capacity, the trial court ordered that Gray be given a mental assessment, and forensic psychologist Charlton S. Stanley, Ph.D., issued a report that Gray possessed a full scale IQ score of 80. The report characterized Gray as “dull normal,” but not as mentally retarded. Upon the basis of Dr. Stanley's report, trial counsel were not deficient according to the Strickland standard in failing to offer further evidence of mental retardation. Evidence that Gray was “dull normal” would have had little if any persuasive effect on the jury in mitigation. The issue of failure to present mitigating evidence is a close call, but according to the evidence presented, Gray's trial counsel were not ineffective according to the Strickland standard.
G. Failure to present a meaningful defense
23. Gray's final claim of ineffective trial counsel is based on counsel calling only five defense witnesses and in not having Gray testify in his own behalf. Decisions regarding which witnesses to call are decidedly within the realm of trial strategy. King v. State, 679 So.2d 208, 211 (Miss.1996). Gray offers no affidavits, documents or other evidence to support this claim as required by Miss.Code Ann. § 99-39-9(1)(e). Furthermore, the record discloses that the trial court explained to Gray in great detail that he had a constitutional right to testify in his own behalf but he voluntarily chose not to do so. The claim of ineffective assistance of counsel in failing to present a meaningful defense is without merit.
24. Inasmuch as all the alleged instances of ineffective assistance of counsel are without merit, it follows that the entire issue is without merit.
II. Mental Retardation within the meaning of Atkins v. Virginia
25. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), held that execution of a mentally retarded prisoner constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the U.S. Constitution. The United States Supreme Court has held that the Eighth Amendment is incorporated by the Fourteenth Amendment. Robinson v. Cal., 370 U.S. 660, 667, 82 S.Ct. 1417, 1421, 8 L.Ed.2d 758 (1962). The Atkins Court held the death penalty to be “excessive” as applied to mentally retarded inmates and found that the Constitution “places a substantive restriction on the State's power to take the life” of a mentally retarded prisoner. Atkins, 536 U.S. at 321, 122 S.Ct. 2242. The Court found that there existed a national consensus which called into question “the relationship between mental retardation and the penological purposes served by the death penalty.” They further recognized that “clinical definitions of mental retardation require not only sub-average intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id. at 317-18, 122 S.Ct. 2242. Furthermore, the Supreme Court stated: Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. Id. at 317-18, 122 S.Ct. 2242.
26. Determining who is mentally retarded for purposes of this prohibition has been left to the individual States. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 399, 405, 416-417, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335. Atkins, 536 U.S. at 317, 122 S.Ct. 2242. This Court has adopted the definition of mental retardation as promulgated by the American Psychiatric Association [APA], which defines mental retardation as follows:
The essential feature of Mental Retardation is significantly sub-average general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Atkins, 536 U.S. at 309, 122 S.Ct. 2242; Foster v. State, 848 So.2d 172, 174 (Miss.2003).
27. Based upon the evidence presented in the petition for post-conviction relief, in Gray's reply to the state's response to his petition,FN1 and the trial record, Gray has not established that he is entitled to a hearing on the issue of mental retardation. Gray provides neither affidavits of experts opining his mental retardation, nor is there any qualified opinion contained in the trial record, other than that of forensic and counseling psychologist, Charlton S. Stanley, Ph.D., who examined Gray before trial by order of the court to determine whether Gray was competent to stand trial and whether there were possible mitigating circumstances in the case. Among the several tests FN2 given by Dr. Stanley was the Wechsler Adult Intelligence Scale, which showed Gray's full scale IQ score of 80, Verbal IQ score of 81, and non-verbal IQ score of 81, all of which Dr. Stanley classified as “low dull normal.” A score on the Wechsler test of 80-81 is well above the maximum score for “mild” mental retardation as defined by the APA. Diagnostic and Statistical Manual of Mental Disorders. 42-43 (4th ed.2000). FN1. Gray's reply was filed December 31, 2003, and no further reply or supplementation was filed subsequent to this Court's definitive opinion, published on May 20, 2004, regarding the standards and procedures to be followed in order to obtain an evidentiary hearing in the trial court on the issue of mental retardation. See Chase v. State, 873 So.2d 1013 (Miss.2004).
FN2. These tests were administered in 1995, when Gray was 23 years old. There is no mention in the record before us that the Minnesota Multiphasic Personality Inventory-II was administered. See Foster, 848 So.2d at 174.
28. Instead, Gray's post-conviction relief counsel presents elementary and middle school grade records, none of which indicates that his IQ had been tested, or that he was in special education classes. Counsel also presented affidavits of Gray's immediate family members regarding the deficiencies in his adaptive skills as well as his poor performance in school. In addition there were affidavits from persons from the Mississippi Office of Capital Post-Conviction Counsel, and Ola Jones, identified by Gray's post-conviction counsel as one of Gray's former teachers. However, Jones's name does not appear in the school records where the names of all Gray's teachers are shown, nor does her affidavit state that she ever taught Gray. Rather, she states that she is currently principal of Bay Springs Elementary School, and that “From what I can recall, Rodney was in the special education program at Bay Springs Middle School between the grades of 4th and 8th. I am not sure at what point he was enrolled in the special education program but it would have been during that time period.” She also states in her affidavit that “I am not sure what his IQ tests scores were. I know that he had to have had a learning disability or he would not have been placed in the special education program.” Although she said that she “taught self-contained children” she did not say that she ever taught Gray. There is no explanation given as to why Jones, as the current principal of the same elementary and middle school attended by Gray from 1978-85, would give such vague statements rather than referring to the school records and providing specific information.
29. Gray's counsel bases his assertion of Gray's mental retardation, with onset before age 18, almost entirely on Jones's affidavit. The educational records reflect a child who at times struggled in school, but they do not offer any proof that Gray's difficulties in school were as a result of mental retardation. Furthermore, none of the affiants, other than Dr. Stanley, possess the requisite qualifications to determine mental retardation, and his nine page report of his evaluation of Gray nowhere contains any mention of mental retardation.
30. The Post-Conviction Collateral Relief Act places the burden upon Gray to prove that he is mentally retarded to such an extent that he may avoid the death penalty. Miss.Code Ann § 99-39-23(7) (Supp.2000). Gray has not met his burden, and this issue is without merit.
III. DNA evidence and the right to confront witnesses
31. Citing the confrontation clause of the Sixth Amendment, Gray asserts that the testimony of Melissa Smrz, a forensic serologist employed in the FBI laboratory, should have been stricken at trial because she was not the actual examiner who performed the testing on the samples. The FBI's DNA Laboratory performed tests on semen samples recovered from the victim's underwear. Smrz stated at trial that she supervised the sampling procedures which were actually performed by a lab technician. Smrz testified that the results showed the mathematical probability that the donor was someone other than Gray was 1 in 446,000,000. Gray alleges that he was denied his Sixth Amendment right to confront the witnesses against him because the lab technician was not available.
32. This objection was presented to the trial judge who found that Smrz was the head of her department and that the tests were performed under her direction and control. Gray, 728 So.2d at 56. On direct appeal, this Court considered this issue on the merits and affirmed the trial court:
In the case sub judice Gray was able to confront and cross-examine the expert who evaluated the autoradiographs and did the sizing procedure, Ms. Smrz. She based her opinions and testimony on the results of her examinations of the test results. This was permissible testimony under Miss. R. Evid. 703 and did not violate Gray's Sixth Amendment right to confront witnesses. He was able to cross-examine and confront Ms. Smrz. Therefore, this issue is without merit. Id. at 57. The issue of the admissibility of the DNA evidence having been previously raised and rejected is now procedurally barred by the doctrine of res judicata. Miss.Code Ann. § 99-39-21(3).
IV. Jury instructions and Tison v. Arizona
33. Gray argues for the first time that jury instructions given at the sentencing phase of the trial violated his Eighth Amendment rights because the instructions allowed the jury to impose the death sentence without finding that he intended to kill his victim. Gray claims that the instructions were given in contravention of the United States Supreme Court holding in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In that case, however, the Court held that imposing the death penalty in felony-murder cases upon defendants whose participation in the underlying felony was major and whose mental state was one of reckless indifference to the value of human life was not a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Id. at 157-58, 107 S.Ct. at 1688. In the present case, a challenge to the jury instructions could have been made at both trial and on direct appeal but since it was not, Gray is now procedurally barred from consideration pursuant to Miss.Code Ann. § 99-39-21(1). See Brown v. State, 798 So.2d at 491. Unless Gray can demonstrate cause for failure to raise this issue and actual prejudice resulting from the trial court's actions, the issue of improper jury instructions is without merit. Miss.Code Ann. § 99-39-21(1).
34. The jury was instructed in accordance with Miss.Code Ann. § 99-19-101(7) which provides: (7) In order to return and impose a sentence of death the jury must make a written finding of one or more of the following: (a) The defendant actually killed; (b) The defendant attempted to kill; (c) The defendant intended that a killing take place; (d) The defendant contemplated that lethal force would be employed.
It is proper to instruct a jury that it may consider all of the intent factors contained in Miss.Code Ann. § 99-19-101(7), yet may properly find only one of these factors, as the evidence permits. Jordan v. State, 786 So.2d 987, 1026 (Miss.2001). This Court has previously held that the jury can be instructed on all of these factors at the conclusion of the sentencing phase. Neither Tison nor its predecessor, Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), requires more than one of the above findings. Walker v. State, 863 So.2d 1, 26 (Miss.2003).
35. In order to return a death sentence, the jury must find beyond a reasonable doubt the existence of at least one of these factors. Id. There must, of course, be sufficient evidence to support the jury's finding of any such factors. Carr v. State, 655 So.2d 824, 838-39 (Miss.1995). The jury found that Gray actually killed Grace Blackwell. Accordingly, Gray cannot prove cause and actual prejudice under Miss.Code Ann. § 99-39-21(1) from his failure to raise this issue before the trial court or on direct appeal, and his claim fails for lack of merit.
36. Gray further alleges that the Mississippi death penalty statutes are unconstitutional in that they are applied to all defendants who are guilty of felony murder. This Court has held previously that Mississippi's capital murder scheme is not unconstitutional simply because it makes the death penalty a possible punishment for felony murder without a requirement to prove an intent to kill. See Simmons v. State, 805 So.2d 452, 507 (Miss.2001). This same argument has been rejected as it relates to depraved heart murder. Grayson v. State, 806 So.2d 241, 252 (Miss.2001). Gray's constitutional rights under the Eighth Amendment are safe-guarded since the factors contained in Miss.Code Ann. § 99-19-101(7) require that the jury find the requisite intent set forth in Enmund and Tison before a death penalty verdict can be returned. In the present case, the jury was properly instructed pursuant to Miss.Code Ann. § 99-19-101(7) and found all four of those factors. That is all that is required by the decisions of the United States Supreme Court and the federal constitution. Gray has simply failed to show the necessary cause and actual prejudice required by Miss.Code Ann. § 99-39-21(1) to overcome the procedural bar to consideration of this claim.
V. Form of the verdict
37. Gray next argues that the form of the sentencing verdict was defective for failure to include a written confirmation that the jury found the aggravating factors listed in Miss.Code Ann. § 99-19-101 beyond a reasonable doubt. This claim could have been raised at trial and on direct appeal, but was not. The matter is now procedurally barred from consideration for the first time on collateral review. Miss.Code Ann. § 99-39-21(1).
38. Without waiving the procedural bar, we determine that the issue is without merit. In the sentencing phase of capital trials, statutory aggravating circumstances must be unanimously found beyond a reasonable doubt. White v. State, 532 So.2d 1207, 1219 (Miss.1988). In the present case, State's Jury Instruction No. 2 specifically required that the jurors “must unanimously find, beyond a reasonable doubt that one or more of the preceding aggravating circumstances exists in this case to return the death penalty.” There is an abundance of case law stating that it is presumed that jurors follow the instructions of the court. Payne v. State, 462 So.2d 902, 904 (Miss.1984) (internal citations omitted).
39. The jury in Gray's trial returned a written verdict announcing that they had unanimously found the existence of the aggravating circumstances. Once a defendant has been convicted in the guilt phase of a capital trial, the presumption of innocence disappears. Delo v. Lashley, 507 U.S. 272, 278, 113 S.Ct. 1222, 1225-26, 122 L.Ed.2d 620 (1993). It necessarily follows that Gray's jury found the aggravating circumstances to exist beyond a reasonable doubt even though those particular words were not written on the face of the verdict. This issue is without merit.
VI. Cumulative Error
40. Next, Gray argues generically that the alleged preceding errors, taken as a whole, deprived him of a fair trial. This Court has previously held that “where there is ‘no reversible error’ in any part, ... there is no reversible error to the whole.” Byrom v. State, 863 So.2d 836, 847 (Miss.2003) (quoting McFee v. State, 511 So.2d 130, 136 (Miss.1987)). Since Gray has not yet shown any actual error by the trial court, there can be no cumulative effect and no adverse impact upon his constitutional right to fair trial. This issue is without merit.
VII. Cumulative Effect of the Failure to Make Certain Objections
41. Next, Gray contends there were five instances of ineffective assistance of counsel whose cumulative effect was to deprive him of a fundamentally fair trial. These alleged omissions include: (1) failure to object to the State's use of jury strikes for cause against African-Americans; (2) failure to object to the jury instructions S-3, S-4 and S-6; (3) failure to object to the testimony of Gray's cell mates; (4) failure to object to the prejudicial effect of pretrial publicity; and, (5) failure to submit jury instructions to weigh informant testimony with caution. Gray also argues that he was denied his fundamental rights due to his trial counsel's failure to cite authority concerning issues presented on direct appeal.
42. With regard to the first alleged instance of nonfeasance concerning the State's use of jury strikes, this particular claim has been previously discussed herein and found to be without merit. Also, the second claim regarding jury instructions S-3 and S-4 was raised on direct appeal and found to be without merit. Gray, 728 So.2d at 75-76. The record shows that trial counsel did in fact object to instruction S-6 although on grounds different from what Gray now asserts should have been the basis. Id. at 60-61. The decision must be attributed to trial strategy by defense counsel.
43. The third claim concerning the testimony of Gray's cell mates, Saunders and McCall, was raised and rejected on direct appeal. Although this Court employed a procedural bar on direct appeal, it nonetheless analyzed the merits of the claim and found them lacking. Id. at 71-72. As for the fourth claim of failing to defuse the potential adverse impact of pretrial publicity, defense counsel sought a change of venue as discussed previously on direct appeal. As analyzed earlier, this Court discussed the effect of local news coverage within that context and found no irrefutable presumption that Gray could not receive a fair trial. Id. at 67. This Court also addressed Gray's fifth instance of alleged misconduct pertaining to informant testimony on direct appeal and found the issue to be without merit. Id. at 72.
44. Gray is now procedurally barred by res judicata from relitigating the issues previously before this Court on direct appeal through the present petition for post-conviction relief. Miss.Code Ann. § 99-39-21(3). With no error to be found on the part of trial counsel in these enumerated instances, there can be no cumulative error to have deprived Gray of a fundamentally fair trial. Byrom, 863 So.2d at 847. Thus, this issue is without merit.
VIII. Aggravating Factors Not Charged in the Indictment
45. Next, Gray argues that his death sentence must be vacated because the aggravating circumstances of capital murder found by the jury were not included in the indictment. Gray relies on the rulings of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Apprendi and Ring, the Court held unconstitutional sentencing procedures where a judge rather than a jury determined whether there were aggravating circumstances sufficient to warrant imposition of the death penalty.
46. Specifically, in Ring the Court addressed the issue of whether the Arizona capital sentencing process as upheld in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), was constitutional under Apprendi. In Walton, the Supreme Court held that the Arizona capital sentencing process in which the jury decided guilt and the judge made findings on aggravating factors was constitutional. The Supreme Court in Ring overruled the Walton case stating:
[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona's enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury. Ring, 536 U.S. at 609, 122 S.Ct. 2428.
47. Despite Gray's argument, the Supreme Court's holding in Ring is limited in scope. The Court in Ring specifically stated that “Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Id. at 597 n. 4, 122 S.Ct. 2428. Unlike Gray, Ring did not contend that his indictment was constitutionally defective. Thus, the issue of whether the aggravating circumstances must be included in the indictment is not controlled by the holding in Ring. See Stevens v. State, 867 So.2d 219, 226-27 (Miss.2003).
48. A defendant is not entitled to formal notice of the aggravating circumstances to be employed by the prosecution and that an indictment for capital murder puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. Smith v. State, 729 So.2d 1191, 1224 (Miss.1998) (relying on Williams v. State, 445 So.2d 798 (Miss.1984)). The Court in Williams said:
We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant's contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment. Williams, 445 So.2d at 804-05. In addition, this Court has recently rejected similar arguments in Stevens v. State, 867 So.2d 219, 225-27 (Miss.2003). Thus, the issue of the omission of aggravating circumstances in the indictment is without merit.
IX. Death Sentence Disproportionate to the Offense
49. Finally, Gray asserts that his death penalty sentence was disproportionately imposed. On direct appeal, this Court conducted a proportionality review as required by the Eighth Amendment and specifically found that Gray's death sentence was not disproportionate. Gray, 728 So.2d at 78. Consequently, the issue is now procedurally barred from collateral review. Miss.Code Ann. § 99-39-21(3).
50. The Application for Leave to File a Petition for Post-Conviction Relief in the Trial Court filed by Rodney Gray is denied.
51. APPLICATION FOR LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.
Gray v. Epps, 616 F.3d 436 (5th Cir. 2010). (Habeas)
Background: Following affirmance of his capital murder conviction and death sentence, 728 So.2d 36, petitioner filed federal habeas petition. The United States District Court for the Southern District of Mississippi, Louis Guirola, Jr., J., 2008 WL 4793796, denied the petition, and petitioner appealed.
Holding: The Court of Appeals, Benavides, Circuit Judge, held that defendant was not prejudiced by counsel's presentation of mitigation evidence during sentencing phase of trial. Affirmed.
BENAVIDES, Circuit Judge:
Petitioner Rodney Gray (“Gray”), convicted of capital murder in Mississippi and sentenced to death, appeals the district court's denial of federal habeas relief. Gray contends that his counsel rendered ineffective assistance by failing to investigate and present mitigating evidence during the sentencing phase of trial. Concluding that the state court's adjudication of Gray's claims was not an unreasonable application of clearly established Federal law, we AFFIRM.
A. Factual History
On August 15, 1994, in Newton County, Mississippi, Grace Blackwell, the 79-year old murder victim, drove to her local bank and proceeded to the drive-through window. Arlene McCree was working as a bank teller, and Blackwell had been her customer since 1980. McCree thought Blackwell looked “terrible.” Usually, McCree and Blackwell would engage in small talk; however, on this occasion, Blackwell would not look at or converse with McCree. Instead, Blackwell simply stated “I need twelve hundred dollars.” McCree had to prompt Blackwell by asking her whether she wanted to cash a check or use a withdrawal slip. In response, Blackwell threw a blank check into the window tray. McCree could not see the backseat of the car because there were clothes “hanging in a very unusual manner.” Concerned by Blackwell's behavior, McCree asked Blackwell whether “something [was] wrong or ... someone [was] in the car with her.” Blackwell did not respond to the questions; instead, she attempted to mouth words to McCree, who could not read Blackwell's lips. After McCree made out the check for $1200, Blackwell signed it. Although McCree attempted to stall the transaction, she subsequently placed the money in the window tray, and Blackwell grabbed it. Blackwell then drove away saying “I'm hurrying, I'm hurrying.” McCree did not think that Blackwell was speaking to her. Believing Blackwell had been taken hostage, McCree called the Sheriff's Office.
A deputy sheriff was dispatched to Blackwell's home and found the front door open. Blackwell's car was not there and the “telephone wires [were] disconnected.” Meanwhile, Harry Jones was driving his car on Pine Bluff Road in Newton County and saw a brown Chrysler, which he later identified at trial as Blackwell's car, stopped in the road. He saw a man “wrestling with this lady.” Although he could not identify the woman, he identified Gray as the driver of Blackwell's car.
Later that same day, Lane McDill was driving to town on Newly RoadFN1 in Newton County and observed something lying “just off the bridge on the right-hand side of the road.” McDill stopped his vehicle and quickly discovered it was a deceased woman. He then drove to town and notified the police that there was a body at the bridge. As a result, law enforcement officers arrived at the scene, and the ensuing investigation revealed that Blackwell had been killed by a shotgun wound to the face. A forensic pathologist determined that Blackwell suffered a “series of injuries,” “including the presence of two shotgun wounds, as well as multiple scrapes of the skin, called abrasions, and lacerations, a cut, and contusions.” The lethal shotgun wound was a “contact shotgun wound with the muzzle of the shotgun placed against the area of the mouth.” The second shotgun wound “is consistent with having gone through an intermediate target scattering and striking the decedent over the left arm, left chest, and left cheek.” Blackwell's other injuries were consistent with either being struck by or pushed out of a vehicle. The forensic investigation also revealed that Blackwell had been raped and that the DNA analysis indicated that Gray was the perpetrator.FN2
FN1. Newly Road was formerly known as “Everett Store Road.” FN2. The “significance of [the] match is that there is a probability that selecting someone other than ... someone unrelated to [Gray] in the population, having the same profiles as that sample, would be less than 1 in 446,000,000 in Black, Caucasian, and Hispanic populations.”
Additionally, the Newton County Sheriff's Office interviewed Mildred Curry, who was Gray's girlfriend at the time. Curry told them that Gray had called from jail and informed her that there was money in her bathroom vent. A deputy sheriff searched her residence and found $1,123 in the bathroom vent. The search also uncovered the clothes and boots that Gray was wearing on the day of the murder.
B. Procedural History
In 1995, a Newton County, Mississippi grand jury returned an indictment that charged Gray with committing intentional murder while engaged in the commission of the crime of kidnapping and/or rape in violation of Miss.Code Ann. § 97-3-19(2)(e). A jury convicted Gray as charged. After a sentencing hearing, the jury unanimously found, among other things, that there were “insufficient mitigating circumstances to outweigh the aggravating circumstances” and that the “Defendant should suffer death.” The trial court sentenced Gray to death by lethal injection.
On direct appeal, the Mississippi Supreme Court affirmed Gray's conviction and sentence. Gray v. State, 728 So.2d 36 (Miss.1998). Gray applied for state post-conviction relief, which the Mississippi Supreme Court ultimately denied in a published opinion. Gray v. State, 887 So.2d 158 (Miss.2004). Gray subsequently filed a federal petition for writ of habeas corpus, which the district court denied in a memorandum opinion and order. The district court granted Gray a Certificate of Appealability (COA) with respect to the issue he now raises on appeal.FN3
FN3. Pursuant to Fed. R.App. P. 31(a), Gray's initial brief was due on December 9, 2009. Counsel obtained an extension of time until January 8, 2010. Counsel requested another extension of time, which was denied as moot when his brief was ultimately filed on January 11. On March 11, 2010, counsel submitted a motion for COA on additional issues as to which the district court denied a COA. The Clerk responded with a letter, advising that no action was being taken on the motion because it was filed out of time. Counsel has not asked us to revisit the Clerk's notice that no action would be taken. Even if the COA motion were considered timely filed, it fails to make a substantial showing of the denial of a constitutional right as to those issues. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, it is denied.
II. STANDARD OF REVIEW
Gray filed his 28 U.S.C. § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Pursuant to the federal habeas statute, as amended by AEDPA, we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).
III. INEFFECTIVE ASSISTANCE CLAIM
Gray argues that his Sixth Amendment right to effective assistance of counsel was violated during the sentencing phase of his trial. He contends that his trial counsel failed to adequately investigate and present mitigating evidence with respect to his family history and educational and mental health background at sentencing. More specifically, the district court granted a COA as to the claim of ineffective assistance based on counsel's failure to request their own court-appointed psychiatrist to offer mitigating evidence and counsel's failure to present the following:
(a) evidence of the poverty of Gray's family during his childhood; (b) evidence of the lack of support for Gray in his childhood, leading to low grades and other problems; (c) evidence of the psychological factors and condition suffered by Gray at the time of the alleged offense; (d) evidence of Gray's dull normal intelligence, and (e) adequate character testimony when family members, friends and neighbors were available to do so, when witnesses were available and willing to offer helpful testimony.
To establish ineffective assistance of counsel, Gray must show (1) defense counsel's performance was deficient and (2) this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must find that trial counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Id. The Supreme Court instructs courts to look at the “norms of practice as reflected in the American Bar Association and the like” and to consider “all the circumstances” of a case. Id. at 688, 104 S.Ct. 2052. While “[j]udicial scrutiny of counsel's performance must be highly deferential,” Gray can demonstrate deficient performance if he shows “that counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. However, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” United States v. Webster, 392 F.3d 787, 793 (5th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Strickland's “prejudice” prong requires a reasonable probability that, but for the deficient performance of his trial counsel, the outcome of his capital murder trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
A. Performance Prong
As previously set forth, Gray contends that trial counsel rendered ineffective assistance by failing to investigate and present substantial mitigating evidence during the sentencing phase of his trial. In determining whether trial counsel's performance was deficient, our “focus [is] on whether the investigation supporting counsel's decision not to introduce [additional] mitigating evidence of [a petitioner's] background was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
Thus, we must consider the reasonableness of trial counsel's investigation. The record reveals that, prior to trial, Gray's counsel filed a motion for a psychiatric examination of Gray. In the motion, counsel averred that they had reason to believe that Gray was suffering from “some mental disease, injury or congenital deficiency which could render [him] incapable of preparing a defense and standing trial.” Counsel further averred that they had reason to believe that Gray might be “incapable of intelligently participating in the process of this cause.” The trial court granted the motion, appointing Dr. Charlton Stanley, Ph.D, a forensic psychologist, and Dr. Donald Guild, M.D., a psychiatrist, to examine Gray “to determine his present ability to stand trial and assist his attorneys in his defense; and further examine him to determine his ability to know the difference between right and wrong and to understand the nature and quality of his actions at the time of the alleged offense.”
After Gray was examined, Dr. Stanley issued a 9-page report, summarizing the test results and conclusions. This report will be more fully set forth in Section III. B., infra; however, the following is a summation of the report. The report provided that Gray had a full scale IQ score of 80, which is classified as low dull normal. Dr. Stanley found that Gray was very cooperative during the testing. Gray was found to be an “antisocial type,” with an “undeveloped or underdeveloped conscience.” Gray is depressed, has “very poor impulse control and has had some suicidal ideation.” Gray appears to have Attention Deficit Disorder and mild dyslexia. Gray's neuropsychological test result has a “pattern often associated with some residual artifacts from drug use, although the attention deficit and dyslexia present a similar picture.” Dr. Stanley concluded Gray did not appear to have any “significant ‘brain damage’ of a type usually referred to as Organic Brain Syndrome.” Gray was found to be competent to assist his lawyer in preparing a defense. Gray did not meet the test for insanity under the M'Naghten Rule. This report was furnished to defense counsel, the prosecutor, and the trial court.
Gray contends that this report should have spurred his counsel to conduct further investigation. Gray further contends that his defense counsel's investigation is very similar to an investigation that the Supreme Court found to constitute ineffective assistance. See Wiggins, 539 U.S. at 523-34, 123 S.Ct. 2527. As in the instant case, defense counsel arranged for a psychologist to examine Wiggins. Id. at 523, 123 S.Ct. 2527. The psychologist concluded that Wiggins “had an IQ of 79, had difficulty coping with demanding situations, and exhibited features of a personality disorder.” Id.
Although we agree with Gray that his psychologist's report was similar to Wiggins's report, we do not agree that the psychological report is what the Supreme Court relied upon to conclude that reasonable counsel would have conducted further investigation into Wiggins's background. In Wiggins, the Supreme Court explained that a presentence report and Social Services documents gave some indication of Wiggins's horrible childhood. Id. at 523-25, 123 S.Ct. 2527. The Supreme Court found that the limited scope of counsel's investigation was unreasonable in light of what counsel discovered in those documents-not with respect to the contents of the psychologist's report. Id. at 525, 123 S.Ct. 2527. The Social Services documents revealed that Wiggins's “mother was a chronic alcoholic; Wiggins was shuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him and his siblings alone for days without food.” Id. Based on this information, reasonably competent counsel should “have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner's background.” Id.
Additionally, however, the Supreme Court also recognized that it was standard practice in Maryland in 1989 to obtain a social history report. Id. at 524, 123 S.Ct. 2527. Indeed, although the Public Defender's office had funds available to pay a forensic social worker, Wiggins's counsel failed to request such a report. Thus, the Supreme Court found counsel's failure to adequately investigate Wiggins's family and social history in pursuit of mitigating evidence constituted inadequate performance. Id. at 534, 123 S.Ct. 2527.
In the instant case, Gray asserts that his counsel's only contact with his family was one interview with Gray's mother prior to trial. That assertion cannot be entirely correct because Rosa Lee Gallapsy, Gray's mother's first cousin, testified at Gray's sentencing hearing. Although Gray contends that his counsel did an inadequate investigation into his family and social history, without affidavits from defense counsel, we are not certain of the full extent of counsel's investigation. Thus, we are at a disadvantage in determining the reasonableness of the scope of the investigation, which is the focus of the performance prong inquiry. Wiggins, 539 U.S. at 522-23, 123 S.Ct. 2527. Further, without statements from counsel, we can only speculate about the basis for their strategic decisions made with respect to putting on their case in mitigation at sentencing. The Supreme Court has explained that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be the case, that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Because we find it easier to dispose of the instant claim based on lack of prejudice, we turn to the prejudice inquiry.
B. Prejudice Prong In the context of a claim that counsel failed to discover and present mitigating evidence, to determine whether a petitioner has shown the required prejudice, “we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. Thus, we will first set forth the mitigating evidence admitted at trial, the mitigating evidence Gray has submitted during habeas proceedings, and the aggravating evidence presented at trial. Then we will reweigh all the mitigating evidence against the aggravating evidence to determine whether Gray has shown that, had counsel presented all the available mitigating evidence, there is a reasonable probability that a juror would have found that the mitigating evidence outweighed the aggravating evidence.
1. Mitigating Evidence Presented at Sentencing Rosa Lee Gallapsy, Gray's mother's first cousin, testified at Gray's sentencing hearing. Gallapsy testified that she had known Gray “all his life.” Gallapsy's son and Gray were friends and Gray was “always down to [her] house, or we [were] over to his house.” She further testified that she knew Gray well and had never seen him behave violently. She described Gray as “respectable” and “just a normal child.” In addition to Gallapsy, Gray's counsel called Louise Bradley to testify at sentencing. She testified she had known Gray for twelve years and that he was “in [her] house every day” and her grandson went to school with Gray. She described Gray as “just a real nice young man, because [she] didn't have any trouble whatsoever out of him.”
Gray's counsel also called Roosevelt Jones, a local minister, who testified that he owned a body shop business. Gray would stop by the shop and talk to Jones. Gray “never gave [him] any trouble.” Jones never observed Gray being violent but he “heard people talking.” Gray's counsel next called Hattie Morgan, who lived next door to Gray's parents. She testified that Gray had “been in the neighborhood all his life.” Morgan had known Gray “all his life.” Morgan testified Gray “was real nice and polite and never bothered nothing [she] had or said anything to [them].” Gray was a “normal boy” and never violent.
Finally, Gray's counsel called Annie Tatum, Gray's mother, to testify at sentencing. Tatum testified that her son was “normal.” He was “not rebellious” or violent. Tatum and Gray's father separated when Gray was six years old and divorced several years later. Gray “couldn't really deal with it.” His parents' separation adversely affected his behavior at school. Gray “would always do things that would disturb the class, so that he could go to the office.” The principal “would say [Gray] wasn't no problem” if he stayed in the office. Tatum asked the jury to give her son “[l]ife imprisonment rather than death.”
2. Mitigating Evidence Not Presented at Trial
a. Lay witnesses
In addition to the testimony offered in mitigation at sentencing, Gray contends that counsel should have called the following witnesses: his three sisters, Stephanie Wilson, Melissa Jones, and Yolanda Wheaton; and Ola Jones, who had been a teacher at Gray's school. “[T]o prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.2009).
First, we note that Gray did not provide an affidavit from either Melissa Jones or Yolanda Wheaton indicating that they would have testified at his trial. Instead, with respect to those two uncalled witnesses, Gray has provided affidavits from Tomika Harris, an investigator, and Deirdre Jackson, a paralegal, both of whom were working for Gray's habeas counsel. Although these affidavits contain hearsay statements that Gray's sisters made about Gray, there is no statement from the sisters providing that they would have testified at Gray's trial. This record, therefore, does not allow us to conclude that these two sisters would have testified as witnesses at Gray's trial. Day, 566 F.3d at 538; see also Lincecum v. Collins, 958 F.2d 1271, 1280 (5th Cir.1992) (explaining that this Court is “loathe to accept the self-serving statement of habeas counsel as evidence that other persons were willing and able to testify” in mitigation at a defendant's trial).FN4
FN4. We note that these two sisters' hearsay statements are similar to the statements of Gray's mother, Annie Tatum, and third sister, Stephanie Wilson, which are discussed below.
Gray did submit an affidavit executed by Ola Jones. In her affidavit, Jones does not state that she would have been available to testify at Gray's trial. In any event, Jones does not provide much mitigation evidence in her affidavit. She states that Gray was enrolled in the special education program sometime “between the grade of 4th and 8th.” Jones did not know Gray's IQ score but stated that “he had to have had a learning disability or he would not have been placed in the special education program.” Jones referred to Gray as a “loner” and said she witnessed him “having tantrums in class and in the hallway.”
Stephanie Wilson, Gray's older sister, did execute an affidavit; however, she did not expressly state that she would have testified on Gray's behalf at his trial. She did state that she “never was interviewed by any of [Gray's] attorneys and I feel that they did not do all that they could have done to represent him in court.” Although we are not persuaded that this statement carries Gray's burden of demonstrating that Wilson would have testified at his trial, we will assume for purposes of this appeal that she would have done so. Wilson's affidavit also provided that, as a child, Gray could not take care of himself or do basic chores. He did not like school and had few friends. Also, he had difficulty sleeping, exhibited impulsive behavior, and could not maintain employment.
As set forth previously, Gray's mother, Annie Tatum, did testify during sentencing at his trial. Nonetheless, Gray contends that counsel should have questioned Tatum about his childhood behavioral problems, his placement in the special education program, a psychological evaluation of him, and his inability to attend to basic chores or hold employment.
b. Mental Health Center Records
In addition to these affidavits, Gray submitted records obtained from the Weems Community Mental Health Center. Gray contends that counsel should have offered evidence from the records in mitigation at sentencing. He also contends that, based on these records, counsel should have moved for the appointment of a psychiatric expert to help develop the evidence for presentation at sentencing. These records show that when he was ten years old his mother brought him to the center because he had been “[e]xhibiting continual violent behavior at school and expressing anger inappropriately.” FN5 Gray's mother reported no problems at home but she had received complaints from the school about his behavior. She also reported that he had no developmental problems and had a “normal childhood.” Gray's mother also thought that his behavior at school may be related to his parents' marital problems. The social worker indicated that Gray appeared healthy and was “quite well-behaved during [the] interview.” The mother was given behavioral management techniques to use with Gray. Gray received both individual and family counseling. After Gray's behavior improved and stabilized, he was discharged from treatment. A year later, Gray was referred to the center because he had been stealing from family members and had behavioral problems. The listed diagnosis was “Conduct Disorder, Socialized, Non-aggressive.” Gray was able to complete a restitution plan, and his mother followed through with a behavior management plan.
FN5. Also contained in these records is a letter from Gray's principal to his mother. It provides as follows: [Gray] is suspended Thursday, December 2, 1982. [Gray] went into a classroom without permission and hit a girl student in the face. I am suggesting that you discuss [Gray's] continual violent behavior at school. He is too loud and easily loses his temper. This usually results in a physical outburst with [Gray] hitting, kicking or choking someone. This type of behavior will not be tolerated. Please come to school Friday with [Gray] for a conference. Several years later, sixteen-year old Gray returned to the center after he shoplifted a jacket. Gray's diagnosis was listed as “Conduct Disorder, Soc. Aggressive.” His mother reported that Gray had been suspended from school twice and that, during middle school, she had had several conferences due to his “rebelling against the authority of his teachers.” The social worker noted that Gray had a “blank affect and a hesitant manner.” The notes also provide that Gray did not appear depressed and gave no indication that he understood the “gravity of his situation. Memory is intact. He is probably functioning in a borderline intellectual range.” Although Gray was scheduled for counseling, his subsequent arrest for theft precluded the treatment.
c. Psychologists' Reports
Gray also submitted to the district court an affidavit executed by Daniel H. Grant, Ed.D, a psychologist who reviewed Gray's psychological record, including Dr. Stanley's report, school records, testimony from Gray's sentencing hearing, and the affidavits that Gray submitted during habeas proceedings. In his affidavit, Dr. Grant criticized Dr. Stanley's report (which had been done prior to trial),FN6 stating that Dr. Stanley's “opinions were inconsistent with [Dr. Stanley's] findings.” Dr. Grant concluded that “the state failed to administer all of the tests necessary to determine whether some sort of neurological condition either prevented Mr. Gray from controlling an impulse or prevented him from fully perceiving the wrongness of the acts for which he was convicted.”FN7
FN6. As previously set forth, Dr. Stanley's report provided that Gray had an IQ score of 80. The report also provided that Gray “sees the world in an overly personalized, peculiar and idiosyncratic fashion. This suggests he will have difficulty maintaining adequate social relationships for an extended period of time.” Various anxiety and depression tests were administered and his scores were consistent with marked depression. The report stated that Gray had “suicidal ideation, poor self-concept, and much hostility turned inward.” Dr. Stanley recommended that Gray be placed on suicide precautions. Gray reported to his examiners that “Sexually, I like older women.”
Additionally, in light of a possible learning disability and self-reported forgetfulness, a neuropsychological battery was administered. Gray's memory functioning was somewhat lower than his IQ, suggesting some genuine memory issues. Dr. Stanley concluded that Gray likely does have an Attention Deficit Disorder. Gray's low scores on the Stroop Color-Word test could indicate dyslexia or some atrophy of the prefrontal areas caused by chronic drug abuse. However, Gray's scores are “more often associated behaviorally with poor impulse control than anything else.” Gray's scores on the Wisconsin Card Sorting Test were “more typical of the prefrontal dysfunction than anything else, and is often associated with poor impulse control as well as Attention Deficit Disorder.” The Luria-Nebraska Neuropsychological Battery score was used to examine statistical indicators of brain dysfunction. Four of the five indicators fell within the abnormal range, indicating “a fairly high likelihood of brain dysfunction, unless confounding factors such as drugs could account for the scores.” The errors Gray made on that battery of tests were “quite consistent with a learning disability, probably Attention Deficit Disorder and Hyperactivity.” However, Dr. Stanley could not rule out any “artifacts associated with previous use of drugs.” Dr. Stanley's “overall assessment of the neuropsychological battery is that there are some abnormal scores, but they can be accounted for by a learning disability which is probably chronic and endogenous. There is no history of a clinically significant head injury. Specifically, the neuropsychological tests are consistent with Attention Deficit.” The Carlson Psychological Survey indicated that Gray is “markedly antisocial,” and although he may appear cooperative, “beneath this exists characteristics of impulsivity, intolerance, hostility, aggression, and irrational behavior.” Dr. Stanley concluded that Gray was “disturbed,” but noted that Gray's “motivation for psychological or psychiatric treatment will be remarkably low.” He further concluded that Gray needed a highly structured environment. FN7. Dr. Grant's affidavit further provided that:
Those tests did not fully investigate whether Mr. Gray had an impaired ability to conform his conduct to the requirements of the law. They also did not take into consideration his numerous emotional and psychological problems, his difficult childhood, depression, suicidal tendencies, anxiety, learning disabilities, and low intelligence as regards their effect upon his behavior. The state expert, Dr. Stanley, performed tests primarily to determine competence to stand trial, and not determine mitigating circumstances. A neuropsychologist is needed in this case. Neuropsychological tests such as the Halstaid-Reitan and Luria-Nebraska do not appear to have been properly interpreted, regarding the existence of organic brain dysfunction and how the deficits could be mitigating.
Relying on Dr. Grant's above-quoted affidavit, Gray requested the district court to authorize funding for a forensic psychologist with expertise in neuropsychological testing to examine Gray and determine whether he was mentally retarded. The district court granted the motion authorizing the funding, and Dr. Gerald O'Brien, a clinical and forensic psychologist, was chosen as the expert. Dr. O'Brien interviewed Gray and administered psychological tests. In the interview, Gray reported to Dr. O'Brien that he slept too much but denied any suicidal thoughts. He reported no family history of psychological or substance abuse problems. Gray stated that he had taken special education classes in fourth grade and then “tested out.” He admitted to disruptive behavior in class and that he dropped out of school in the ninth grade. Gray stated that when he was 16 years old he was sent to “Youth Court” for burglary and shoplifting.
Dr. O'Brien concluded that Gray's “current tested Full Scale IQ is likely to be in the 86-93 range.”FN8 On the screening test for the Luria-Nebraska Neuropsychological Battery, Gray had an error score of 5, “well within the cutoff score (8), suggesting that if the entire neuropsychological test battery were administered he would be unlikely to show significant specific or generalized neuropsychological deficits.” Gray achieved a score of 14 (out of 21) on the 21 Word Test. That is considered a “normal result.” With respect to the Personality Assessment Screener, Gray's “overall score was within the normal range, suggesting low potential for significant emotional or behavioral problems.” Dr. O'Brien also administered the Personality Assessment Inventory for comparative purposes and Gray produced a “generally valid profile. The clinical results included a significant elevation on one scale only, suggesting suspiciousness, hostility, and hypervigilance in his relations with others.” However, Dr. O'Brien attributed the elevated scale to Gray's current circumstances on death row-not significant psychopathology. Further, Dr. O'Brien concluded that Gray “is currently functioning in the low average range intellectually, even allowing for lower Flynn-corrected test scores from 1995, and second-hand reports of past school performance problems.... There are also no indications of significant emotional or psychological difficulties that cannot be explained by his current environment and legal situation.”FN9 Dr. O'Brien concluded that Gray's current intellectual functioning falls in the low average range, but “he may have functioned at a slightly lower level” prior to incarceration. Gray is not considered mentally retarded. Various “test results and clinical observations do not indicate significant emotional or psychological difficulties, although there are suggestions of current suspiciousness and hostility in his dealings with other people.”
FN8. With respect to the WAIS-III test, Gray scored a Verbal IQ of 89, Performance IQ of 90, for a Full Scale of 89. These scores placed his “overall intellectual functioning in the low average range.” Gray scored within the average range on the SHIPLEY test, which translated to an estimated (WAIS-R) IQ of 96. With respect to the WRAT4 test, his achievement scores were: reading (90) at grade level 10.2; and sentence comprehension (87) at grade level 9.9. FN9. The “Flynn Effect” refers to the theory that average IQ scores in populations artificially increase over time. In re Salazar, 443 F.3d 430, 433 (5th Cir.2006). However, the Flynn Effect “has not been accepted in this Circuit as scientifically valid.” In re Mathis, 483 F.3d 395, 398 n. 1 (5th Cir.2007). The Mississippi Supreme Court has not addressed the scientific validity of the Flynn Effect.
3. Aggravating Evidence at Trial
At the beginning of the sentencing phase of Gray's trial, the prosecutor moved “to allow the State to bring forward all evidence that was produced at the guilt phase of the trial and to incorporate that evidence in the sentencing phase, to include all witness testimony and all exhibits that were introduced through these witnesses.” The trial court granted the motion. The aggravating evidence offered during the guilt phase of trial included evidence that Gray kidnapped 79-year old Grace Blackwell from her home, forced her to drive to her bank to withdraw $1200, raped her, shot her twice with a shotgun, and ran over her with her vehicle. Blackwell's car had blood “all over the passenger side ... both inside and outside.” Gray, 728 So.2d at 43. The front of the car had been damaged and “[t]here was blood and tissue on the front, across the hood, windshield, and down the passenger side of the vehicle.” Id. Blackwell's body was found lying beside the road. As the district court noted, the injuries to Blackwell's body were horrific. “She had lacerations on her leg and facial area, severe wounds to her mouth and back side of her head, along with a gash to the back of her head.” Gray, 728 So.2d at 43. “The lethal injury was a contact shotgun wound to the mouth.” Id. The non-lethal shotgun injury was to the left side of her face, chest and left arm. Id. “There were multiple small entrance wounds indicating secondary missile pattern injury.” Id. On the right side of her body she had “large scrapes of skin as if she slid on a hard object.” Id. at 44. “There was also an abrasion or scrape of one inch to the labia majora or vaginal vault, which indicated forceful sexual penetration.” Id. There was testimony that “[i]t would have taken a period of time to die, as the bleeding was from secondary vessels.” Id.
During the sentencing phase, the prosecutor called three witnesses, the victim's only child, Gerry Martin, and the victim's two granddaughters, Crystal Moulds and Amber Arnold. The witnesses were all very close to the victim. They testified that Blackwell had lived with her daughter and helped her raise her children. They testified that Blackwell was a devoted mother, grandmother, and great-grandmother who helped them in anyway she could. They testified about the pain of losing her and how it had devastated the family. They were deeply saddened that her great-grandchildren would grow up without her.
4. Reweighing of Evidence
As previously set forth, in determining whether Gray has shown prejudice, “we reweigh the evidence in aggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. In view of the aggravating evidence with respect to the murder, kidnapping, and rape, we are not persuaded that, had defense counsel presented the currently proffered evidence in mitigation, there is a reasonable probability of a different outcome.FN10 We certainly are not persuaded that the Mississippi's Supreme Court's conclusion that the new evidence “would have had little if any persuasive effect on the jury in mitigation” is unreasonable. Gray, 887 So.2d at 168.
FN10. In other words, even if we were reviewing this claim de novo, we would find no Strickland prejudice.
The new evidence portrays Gray as either dull normal or low average intellectual functioning. He behaved inappropriately and sometimes violently at school.FN11 Gray was in special education for an unspecified period of time before he “tested out.” He quit school after ninth grade. He shoplifted and stole from his family. He was unable to accomplish basic chores and had learning disabilities such as Attention Deficit Disorder and mild dyslexia. At the time of trial, he was depressed and having suicidal thoughts. Gray is “markedly antisocial” and “disturbed,” with an “undeveloped or underdeveloped conscience.” Although Gray points to Dr. Grant's affidavit criticizing Dr. Stanley's report, Gray fails to even acknowledge Dr. O'Brien's report which concludes that Gray was unlikely to show significant specific or generalized neuropsychological deficits. Dr. O'Brien found that Gray had low potential for significant emotional or behavioral problems. Unlike the expert opinions relied upon by Gray, Dr. O'Brien had actually interviewed Gray and administered the tests. Although Gray contends that an investigation would have revealed severe psychological or neurological problems, Dr. O'Brien's conclusions refute that contention. Cf. Blanton v. Quarterman, 543 F.3d 230, 239 (5th Cir.2008) (explaining that petitioner's claim of organic brain damage was “persuasively rebutted” by the state's psychiatrist).FN12
FN11. At trial, his mother testified that her divorce from his father was difficult for Gray. She testified that it affected his behavior at school in that he “would always do things that would disturb the class, so that he could go to the office.” However, she did not testify as to his violent behavior.
FN12. As previously noted, Gray also contends that counsel's failure to request a court-appointed expert to assist in presenting the case in mitigation constitutes ineffective assistance. However, in the proceedings below, the district court authorized funds to have an expert conduct further neuropsychological testing. Gray's counsel had Dr. O'Brien conduct the tests, and his conclusions demonstrate that Gray cannot show prejudice based on counsel's failure to request a court-appointed expert.
Gray's mother's affidavit provided that Gray could not maintain employment or accomplish basic chores. He had difficulty dealing with his parents' divorce and behaved violently at school on occasion. This evidence in mitigation pales in comparison to the type of powerful mitigating evidence that the Supreme Court has opined would have a reasonable probability of causing a juror to find that the mitigation evidence outweighed the aggravating evidence. Wiggins, 539 U.S. at 535, 123 S.Ct. 2527; Williams, 529 U.S. at 395, 120 S.Ct. 1495; see also Blanton, 543 F.3d at 239 (explaining that “the mitigating evidence presented by [petitioner] during the state habeas proceeding was not nearly as strong as that submitted by petitioners in recent cases in which the Supreme Court has found prejudice”). For example, “Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care.” Wiggins, 539 U.S. at 535, 123 S.Ct. 2527. Wiggins was at times homeless and had “diminished mental capacities.” Id. The Supreme Court explained that Wiggins had the “kind of troubled history” it has “declared relevant to assessing a defendant's moral culpability.” Id. Concluding that the available mitigating evidence “ ‘might well have influenced the jury's appraisal’ of Wiggins' moral culpability,” the Supreme Court held that he had shown Strickland prejudice. Id. at 538, 123 S.Ct. 2527 (quoting Williams, 529 U.S. at 398, 120 S.Ct. 1495).
Similarly, in Williams, the Supreme Court described Williams' childhood as “nightmarish.” 529 U.S. at 395, 120 S.Ct. 1495. “Williams' parents had been imprisoned for the criminal neglect of Williams and his siblings.” Id. “Williams had been severely and repeatedly beaten by his father [and] 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).” Id. Additionally, “Williams was borderline mentally retarded and did not advance beyond sixth grade in school.” Id. (internal quotation marks and citation omitted). There were prison records available demonstrating that Williams had assisted in cracking a drug ring in prison and returned a guard's missing wallet. Id. at 396, 120 S.Ct. 1495. In light of all the available mitigating evidence, the Supreme Court concluded that Williams had shown a reasonable probability of a different outcome at sentencing. Id. at 399, 120 S.Ct. 1495.
In the instant case, there is no allegation of abuse. Indeed, in the proffered mental health records, Gray's mother describes his childhood as “normal.” Moreover, Gray cannot show prejudice because much of the new evidence is “double edged” in that it could also be interpreted as aggravating. See Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir.2000) (holding that petitioner could not demonstrate Strickland prejudice because the evidence was “double edged in nature”). For instance, Dr. Stanley described Gray as “markedly antisocial” and “disturbed.” The records list Gray's diagnosis as “Conduct Disorder, Soc. Aggressive” and provide evidence that he hit a girl in the face in the classroom. We are not persuaded that Gray's new evidence has a reasonable probability of influencing the jury's decision regarding his moral culpability.
We recognize that reweighing the evidence is a difficult inquiry. See Tucker v. Johnson, 242 F.3d 617, 623 (5th Cir.2001). Nonetheless, we are not persuaded that the Mississippi Supreme Court's conclusion that the newly proffered evidence does not demonstrate prejudice is unreasonable.
Accordingly, for the above reasons, the district court's judgment is AFFIRMED.