Condemned inmate Gerald James Holland apologized to the family of his victims in his final statement before being executed. “I want you to know I am sorry,” said Holland, who blamed his actions on alcohol, despair and his temper. Holland raped and killed 15-year-old Krystal Dee King of Gulfport in 1986.

Earlier in the day, Corrections Commissioner Chris Epps said Holland had accepted his fate. At 6:14 p.m., Holland was pronounced dead. The victim’s family showed little emotion during the execution.

Holland's attorney Steven Orlansky visited with him at 3 p.m. that his pleas for clemency had been denied by the governor and U.S. Supreme Court. Orlansky was Holland's only visitor today and he made no telephone calls. Holland, 72, was talkative all day, Epps said earlier.

For his last meal, he requested a 14 ounce T-bone steak, baked potato, brussel sprouts, salad, apple pie and a liter of Pepsi. Epps said Holland ate most of his last meal. Holland has donated his body to the state and he will be buried on the prison grounds.

Jackson Clarion-Ledger

PARCHMAN — It took nearly 24 years, but a measure of justice came for the family of Krystal Dee King when Gerald James Holland was put to death Thursday evening. Holland killed King on Sept. 12, 1986, the day she was to celebrate her 15th birthday.

He apologized to her sister, Marcie Walker, who was 11 when Krystal was killed. "I want you to know I'm sorry ... It was because of alcohol, despair and temper," Holland said moments before he was administered the lethal injection. He was pronounced dead at 6:14 p.m.

Walker and her twin sister, Malissa King Adams, spoke to the media after Holland's execution. They held a picture of the smiling teenager with flowing, shoulder-length blond hair. "We had 11 years with our sister," Walker said. "I'm not having nightmares anymore." The pair called Holland a monster for what he did to their sister. The victim's mother, Kathy King, of Perkinston, said she did not want to see the execution but sent a handwritten letter. In that letter, she said "24 years ago, my daughter Krystal was stabbed, beaten, raped and finally suffocated to death by Mr. Holland. She was just a child. Tonight, Mr. Holland finally received what he should have gotten 20 years ago." But she said the execution was not justice because it could not bring her child back, although it ended the family's lengthy nightmare.

To the end, Holland, 72, was talkative and expressed regret for killing Krystal King, Mississippi Corrections Commissioner Chris Epps said. Earlier in the day, Gov. Haley Barbour refused Holland's request for clemency. The U.S. Supreme Court also rejected any appeal for Holland. His attorney, Steven Orlansky, of Jackson, gave him the news late Thursday afternoon.

Afterward, Holland told Epps, "I got the news, but it wasn't good news." Epps, who has witnessed 13 executions, said Holland knew his chances of avoiding death were slim to none. But Epps said he did not get the sense Holland was remorseful. "He admitted killing Krystal, but he didn't give a reason why," Epps said. Holland also denied raping the teenager, but tests revealed she was raped at least twice. Family members of Holland visited him last week, but none was present on his final day. His sister, brother, sister-in-law and nephew were on his visitation list. But Holland requested none witness the execution. He didn't even want his attorney present.

Mississippi State Penitentiary Chaplain James Whisnant was the only person Holland wanted with him at the execution. For his last meal, Holland consumed a 14-ounce T-bone steak, baked potato, brussels sprouts, salad and apple pie. He drank a liter of Pepsi. Holland had been married twice, but Epps said he did not appear to have close family ties.

King's body was found in a shallow grave near Saucier in northern Harrison County. Holland's roommate led authorities to her grave. Jerry Douglas lived at the same rooming house as Holland. Published reports said King's nude body was recovered beneath about 1 1/2 feet of sand. A bed sheet, plastic garbage bags, chunks of cement, and a cement bag were on top of the body. King was a runaway at the time. She went to the rooming house where Holland lived to meet someone who apparently was not home, according to authorities.

Holland initially claimed in an audio-taped confession that King was accidentally stabbed when he tried to take a knife from her during a scuffle. But an autopsy showed she was beaten about the face and raped about an hour before her death. Her underwear had been stuffed down her throat and she had been strangled to death with a piece of her shirt, New Orleans pathologist Paul McGarry testified at Holland's trial in 1987. King had been a ninth-grade student at Central Junior High in Gulfport. Holland once worked as a janitor at the federal courthouse in Gulfport.

At trial, Orlansky argued Holland suffered from a brain injury caused when he was a teenager. In a statement to The Clarion-Ledger, Orlansky said Thursday that Holland was remorseful. "Gerald's actions on Sept. 12, 1986, were the horrific results of anger and frustration related to his divorce, which just had been finalized, fueled by extreme alcohol abuse throughout the preceding day and night. He was immediately consumed with remorse as evidenced by his crying throughout the next day and asking one of the arresting officers to shoot him. "He has consistently expressed that remorse to me throughout the years that I have known him, and would have done anything if he could turn back the clock to give back the young life he took," Orlansky said. Holland requested his body be released to MDOC. He will be buried on prison grounds in a casket constructed by inmates, Epps said. To embalm and bury Holland will cost about $300, he said.

Epps said as many as five more executions could be scheduled for the remainder of this year.

TIMELINE

•Sept. 12,1986: Krystal Dee King, 15, is beaten, raped and strangled to death in Harrison County.
•Sept. 15, 1986: King’s body is found in a shallow grave in northern Harrison County near Saucier. Gerald James Holland is arrested.
•Dec. 10, 1987: An 11-woman, one-man jury in Natchez convicts Holland of capital murder. Case moved because of pretrial publicity.
•Dec. 11, 1987: The jury gives Holland a death sentence.
•September 1991: Miss. Supreme Court upholds Holland’s conviction but throws out death sentence, ordering new sentencing hearing.
•April 1993: A jury resentences Holland to death.
•October 1998: The U.S. Supreme Court refuses to hear Holland’s appeal.
•March 2005: The U.S. Supreme Court again refuses to hear Holland’s appeal.
•July 15, 2008: U.S. District Judge W. Allen Pepper dismisses the lawsuit by Holland and others on the lethal injections question.
•September 2009: The 5th U.S. Circuit Court of Appeals rejects Holland’s argument his rights were violated during resentencing.
•April 19, 2010: The U.S. Supreme Court declines to hear an appeal from Holland.
•May 6:The Mississippi Supreme Court sets Holland’s execution for May 20.
•May 6: 16 death row inmates file a lawsuit saying their state-appointed attorneys were untrained, inexperienced and overwhelmed.
•May 13: The Mississippi Supreme Court agrees to allow a psychiatric evaluation of Holland.
•Tuesday: The Mississippi Supreme Court rejects another motion to halt Holland’s execution.
•Thursday: Holland is executed after Gov. Haley Barbour denies his request for clemency and the U.S. Supreme Court denies request for stay.

IN PRISON

During his nearly 23 years in the custody of the Mississippi Department of Corrections, Gerald James Holland had at least nine infractions. Among the reasons he was cited were possession of unauthorized items on several occasions, refusing to remove towels from cell bars and window, intentionally flooding cell commode and refusing a staff order to get a haircut.

Mississippi Department of Corrections

Mississippi Department of Corrections
Offender Data Sheet
Inmate: GERALD JAMES HOLLAND
Offender Number: 46631
Date Of Birth: 08/14/1937
FBI#: 919955B
Height: 6'00"
Weight: 180 lbs
Hair Color: GREY OR PART
Complexion: FAIR
Race: WHITE
Sex: MALE
Eye Color: GREEN
Build: MEDIUM

1 HOMICIDE- 04/02/1993 ADAMS DEATH
2 ESCAPE-JAIL 05/13/1988 HARRISON 5 YEARS

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

Hattiesburg American

"Another inmate put to death; Second execution this week in Mississippi," by Jack Elliott Jr. (Associated Press • May 21, 2010)

PARCHMAN - Gerald James Holland, convicted for raping and killing a 15-year-old girl, was put to death by lethal injection Thursday in the state's second execution in as many days.Holland was declared dead at 6:14 p.m., said Tara Booth, a spokeswoman for the Department of Corrections. Holland, who was the oldest prisoner on death row at 72, was convicted of raping and killing Krystal King, 15, of Gulfport on her 15th birthday in 1986.

Holland's victim's sister, Marcie Walker of Wiggins, and a brother-in-law, Timothy Adams of Gulfport, planned to witness Holland's execution, Corrections Commissioner Chris Epps said beforehand. Holland wanted no family members or his attorneys to witness the execution and no relatives had visited with him early Thursday. "He had not talked about any hope this week," Epps said. "I think he kind of figured this was the end."

For his last meal, Holland requested a medium-rare steak cooked with onion and garlic; a baked potato with cream cheese, bacon bits and chives; salad with bleu cheese dressing; Brussels sprouts with jalapeno cheese sauce; apple pie and a 1-liter Pepsi. He requested a sedative before the execution and was to be given Valium. He asked to be buried at the penitentiary.

Court documents and Holland's conversations with prison officials detail some of the circumstances leading up to the slaying, although Holland did not admit to raping the girl. King and a friend went to Holland's home on Sept. 11, 1986, the day before King's 15th birthday. Epps said Holland told him he had been drinking heavily at home that night. Court records show Holland's wife and daughter left him in July or August, and that he had talked about his divorce to King and her friend. Epps says Holland claims he received a letter about his divorce being final the same day King came over. King was killed the next morning. Prosecutors said she was raped, beaten and stabbed, and an autopsy showed the cause of death was asphyxiation from a ligature placed around her neck and clothing stuffed down her throat.

But Holland originally claimed her death was an accident. He and another man, Jerry Douglas, disposed of the body. Douglas reported the slaying to police and testified against Holland at trial.

Holland was convicted of capital murder and the underlying crime of rape in 1987 and was sentenced to death. The Mississippi Supreme Court in 1991 upheld Holland's conviction but threw out the death sentence. He was re-sentenced to death in 1993 by a Harrison County jury. The Mississippi high court upheld the second death sentence in 1997. In your voice|Read reactions to this story Newest first Oldest first landlord11 wrote:

ProDeathPenalty.com

MSDigitalDaily.Com

"Delay looms as big issue in execution cases," by Leilani Salter. (5/24/2010 7:28:50 AM)

After all, outside the environs of Mississippi State Penitentiary at Parchman, there are car wrecks, house fires, shootouts and more exposure to the ravages of drugs and alcohol. Inside, where Holland and Woodward were both sent for raping and murdering young women 24 years ago, is comparatively safe. Fate knows whether their lives were extended or shortened by their crimes. We never will.

We can know this: Before being put to death by the state of Mississippi last week, Woodward had reached the age of 62. That’s more than 2 1/2 times the lifespan of Rhonda Crane, who was 24 when she was kidnapped, abused and shot in the head in Perry County. And before being put to death last week, Holland had reached the age of 72. That’s almost five times the lifespan of Krystal King, who was sodomized and strangled in Biloxi on her 15th birthday.

Holland, by the way, was senior among Mississippi’s Death Row inmates, but was not the oldest person executed in that state. John Nixon got that distinction five years ago when, at 77, he was administered a lethal injection for crimes committed 20 years earlier.

People support or oppose the death penalty for myriad reasons. Supporters say it is a deterrent, will reduce crime, that the severity of a punishment should match the severity of a crime. They say rehabilitation fails. Killers, especially killers who are a continuing threat to the public, deserve what they get. And they claim backing by the Bible. Opponents say it is not a deterrent, that rehabilitation can work, that the risk of executing innocent people is too high and that racial prejudice cannot be eliminated from trials and sentences. Some claim life in prison is actually more severe — forcing killers to remember their acts daily. And, as with supporters, they point to Scripture.

Cost is an issue raised by both sides. Supporters point to the expense of housing, guarding and feeding a person serving life without parole. Opponents point to the costs of the many appeals and processes that precede executions. Some arguments can be proved one way or another. For instance, it is true that no person, after execution, has been a repeat offender. Most people imprisoned and released after heinous crimes don’t, but some strike again. Race is a factor that can be examined only in statistical terms. From 1817 until 1972 when the U.S. Supreme Court declared executions unconstitutional, Mississippi executed 351 people, a rate of just over 2 per year. A racial breakdown was not available, but it’s probably safe to say black people were disproportionately represented.

Since the U.S. Supreme Court defined what it would take to make a death sentence constitutional — and Mississippi passed such a law in 1977 — there have been an even dozen executions, a rate of about one every three years. All have been men; three black and nine white. As for the whole Death Row population, there are 55 men and three women; 26 white, 31 black and one Asian.

Regarding innocence, three men sent to Death Row in Mississippi in the past 33 years have been released due to wrongful convictions. For Woodward and Holland, there was no question of guilt. Both did the crimes for which they were administered lethal injections.

But what is increasingly an issue — perhaps even a constitutional question — is how long is too long? Will the day come when courts will rule that death sentences are automatically converted to life without parole if the state doesn’t carry out a sentence within a fixed amount of time? Some will say the constant delays are a strategy by death penalty opponents. Perhaps that’s accurate. The longer they can keep their clients alive, the better the chances states or the Supreme Court will outlaw executions. When the court did that in 1972, hundreds of death sentences were commuted by states.

In Mississippi today, based on the two executions carried out last week, the average length of time between crime and the ultimate punishment increased to 15 years. And even though he was the oldest person on Death Row at Parchman, Gerald James Holland had not been there the longest. That distinction belongs to Richard G. Jordan. He turns 64 on Thursday and has spent 34 years — more than half his life — awaiting execution.

Holland v. State, 587 So.2d 848 (Miss. 1991). (Direct Appeal)

Defendant was convicted in the Circuit Court, Harrison County, Kosta N. Vlahos, J., of murder and rape and sentenced to death, and he appealed. The Supreme Court, Prather, J., held that: (1) defendant was not entitled to instruction on manslaughter as lesser included offense; (2) defendant's confession was properly admitted; (3) State adequately complied with discovery request; but (4) defendant was prejudiced by jury's premature deliberations on sentence. Conviction affirmed and sentence reversed and remanded. Hawkins, P.J., dissented in part and filed an opinion.

PRATHER, Justice, for the Court:

I. INTRODUCTION

In September 1986, Gulfport police arrested 49-year-old Gerald James Holland for the murder of 15-year-old Krystal D. King. The Harrison County Grand Jury subsequently indicted Holland for capital murder and the underlying felony of rape. Venue changed to Adams County, where a jury in December 1987 found Holland guilty and sentenced him to death. Holland appealed. This Court affirms the conviction, overturns the death sentence, and remands for re-sentencing.

A. The Facts
1. Around 8:00 p.m. on a warm Thursday evening-September 11, 1986-21-year-old Willie Boyer ran into his friend, Krystal King, at the Biloxi Beach Arcade. They “hung out” at the arcade until around 9:30-at which time they decided to stroll down to the beach and drink a six-pack of beer. Hours passed; midnight arrived; and the beer ran out. Krystal asked Willie to drive her to a house, unfamiliar to him, located on Burton Avenue in Gulfport. “Jerry” Holland, the appellant in this case, owned this house.

2.
Jerry Holland had not lived in Gulfport all his life; he grew up in his birthplace, Los Angeles, with his mom, dad, two younger brothers, and a younger sister. His dad worked various jobs-as an electrician, truck mechanic, and other positions involving general maintenance. His mom was a homemaker.

During the latter half of his teen-aged years, Holland moved with his family to Memphis where he completed his high-school education and received a “certificate of credits.” He left home at the age of twenty-one, and survived by working odd jobs. Holland explained: “[A]s I got older, I worked selling shoes, [became a] dental technician, and got into the electrical trade and stayed in it most of the time.” He accumulated over twenty years' experience as an electrician-with some vocational training in this field. He “lived and worked in different places,” married and divorced twice, fathered five children, and ran afoul of the law. His criminal record includes convictions for burglary, larceny (auto theft), and rape of a child. He received a four-year term in a Texas prison for the rape; however, he served only one year before being paroled in 1976. He moved to Gulfport in 1981. Five years later, his and Krystal's path crossed.

By that time, in June or July 1986, Holland's second wife had left him and taken their only child, Ina, with her. He was doing “contract work” on and off, and he had secured a roommate, 21-year-old Jerry Douglas, who introduced him to Krystal.

3.
On the night when Boyer drove Krystal to Burton Avenue, Holland had been drinking. This was not out of character for Holland. He had, as of August 1, become a drinker of at least a “six-pack” of beer a day-which he attributed to his “despondence” over his then-pending divorce. Boyer “remember [s] seeing [Holland] have ... one [beer] the whole time [he] was there,” and he “did not appear ... to be intoxicated or drunk.” Boyer himself “had a little bit of tequila and a beer,” and Krystal abstained completely. Meanwhile, Douglas and 19-year-old Carter Fugate, who had only recently moved in, slept soundly in their bedrooms; they had been in bed since 11:00 p.m.

Boyer and Krystal's visit lasted for a couple hours-during which time they watched “David Letterman” (a T.V. talk show) and listened to Holland small-talk about his divorce and the “divorce papers” which he had just received in the mail. Around 2:30 a.m., Boyer decided to leave, and Krystal remained behind. That was the last time Boyer saw her alive.

<4.
Later in the night-between 3:20 and 3:30 a.m.-a “bump” awakened Douglas: DOUGLAS: I got up to go to the bathroom and to get a drink of water. I opened my bedroom door, the lights in the house was on, the front door standing wide open. .... I heard another noise outside the front door.... [I] looked through the ... door and I saw [Holland] bent over a black object on the ground. I looked at him and asked him, “Jerry, what is going on?” And he looked back up at me and says, “Go back to bed you don't want to know.” Vol. IX, at 1401-02. Douglas then went into the kitchen and peered out the window: “I saw him roll[ ] this object into the back of his pick up truck and it made a loud thud sound when it hit the bed of the truck.”

Holland returned to the house and, once inside, Douglas noticed that “he had a wild look on his face, his eyes were very big and glassy looking, and he was shaking.” At that point, Holland confessed: “My God, I killed her [Krystal], I killed her.” Id. at 1402. According to Douglas, Holland then explained that he and Krystal had had sex on the couch-after which she picked up his “razor-sharp” hunting knife located nearby and “started playing with it.” Holland and Krystal “winded up going into his bedroom and she [continued to] play with the knife.” Holland “took the knife from her and the next thing he knew it was in her chest.” “[H]e had stabbed her.”

Douglas noted that Holland changed his story a few minutes later: Holland told him that he and Krystal were “wrestling around on the bed and [she] rolled off the bed and she fell onto the knife.” Holland also told him that “he mutilated the body to cover up the stab wounds” and to “make it look like a sex fiend had done it.” And he explained that he had placed the body in his truck “to ... bury it and try and cover everything up.” Douglas, under duress, accompanied Holland to bury Krystal's body. Douglas later contacted the Gulfport Police Department and informed homicide detectives-including Wayne Payne and Glen Terrell-about the murder. Upon hearing Douglas' story, the detectives acquired arrest and search warrants.

At approximately 11:20 a.m. on September 12, 1986, a Gulfport Police Department S.W.A.T. Unit executed the warrants; the Unit entered Holland's home, arrested him, and read him his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694, 726 (1966). Detectives Payne and Terrell read Holland his rights three more times at the police station. Holland decided to waive them and confess.

HOLLAND: We had ... I think we had sex. I was pretty much drunk.... I don't even know if we did it or not and she was sitting in my lap and ... she saw my goddamned hunting knife. She started playing with it and she said let's go to bed, I'm sleepy. I said are you going to sleep on the couch or do you want to sleep with me? She says I'll sleep with you, so we went to the bedroom and she ... still had that goddamned knife in her hand. She was messing around with it like Zorro and all that bullshit. Typical kid at that point, I mean. .... I was dodging [the knife] ... and I grabbed her wrist and I was going to take it away from her before one of us got hurt with it and then I bumped into her chest and she says I'm dead. Then things got kind of black there for a minute.

After confessing, Holland accompanied detectives to the burial site; they exhumed the body. An autopsy conducted by Dr. Paul McGarry revealed that Krystal had been brutally battered. McGarry described her injuries and their sequence. The first injuries were of the face, over the sides of the face, over the center of the face, the lips, over the nose, the eyes, they were more swollen, they were the most advanced. About the same time frame, next in line, the injuries of the arms, forearms, wrists, knees, shins. In that same time pattern, the injuries to the genital region, the stretching and scraping and tearing of the vagina and rectal tissues.... These are produced by forceful penetration of the vagina and rectum by a structure that is able to distend and stretch and tear in a symmetrical pattern. In other words, a round-a roughly round structure penetrating and stretching the vagina and stretching the anus and rectum.... In order to produce these injuries all the [sic] around the edge, it has to be something not as firm and unyielding as a metal or wooden instrument. It has to be a part of a human body or something with that same texture consistency[-like a] male sex organ.

Next is the stab wound of the chest which went through the heart and through the aorta. Next after that is the ligature around the neck, the tying of the shirt tightly around the neck catching the hair in the shirt. Next is the blow to the back of the head which caught the hair that was in the ligature in that position and the last injury ... a pair of underpants ... was stuffed down the throat, down as far as the voice box.... Vol. XII, at 2184-85. McGarry stated that Krystal probably remained conscious during the entire ordeal until, finally, “she died of asphyxiation because of the ligature placed around her neck which closed off her airway, and the stuffing of clothing down her throat that obstructed her windpipe.” She probably did not die from the stab wound; indeed, she could have lived “as long as several hours” after being stabbed had she not been strangled. The stab wound did, however, contribute to her death. The mutilation of her genital area occurred post-mortem.

5.
On November 17, 1986, a grand jury returned an indictment against Holland for killing Krystal with “malice aforethought” while “engaged in the commission of the crime and felony of rape.” See MISS.CODE ANN. § 97-3-19(2)(e) (1972). The Grand Jury later re-indicted him for the same crime but as an habitual offender. Id. § 99-19-83 (1990 Supp.). On November 30, 1987-after numerous hearings on pre-trial motions-Judge Kosta N. Vlahos held trial at the Adams County Circuit Court.FN1 Twelve days later, the trial concluded. The jury found Holland guilty as charged and sentenced him to death. FN1. Holland had filed a motion in the Harrison County Circuit Court for a change of venue, which Judge Vincent Sherry had granted.

B. The Issues

Holland appealed and presented numerous issues for disposition. These issues are addressed in the next section.

II. ANALYSIS

Before embarking on the analysis, this Court is reminded of its “commitment to heightened scrutiny” in capital cases. “All doubts should be resolved in favor of the accused.” See Jones v. State, 461 So.2d 686, 690 (Miss.1984) (“We reaffirm at the outset our commitment to heightened scrutiny on appeal in cases where the sentence of death has been imposed.”) (discussing Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 3760, 33 L.Ed.2d 346, 388 (1972) (Stewart, J., concurring), and its progeny); Mackbee v. State, 575 So.2d 16, 23 (Miss.1990) (“[I]n a capital murder case ... all doubts should be resolved in favor of the accused.”) (quoting Mease v. State, 539 So.2d 1324, 1330 (Miss.1989); Fairchild v. State, 459 So.2d 793, 801 (Miss.1984); and Gambrell v. State, 92 Miss. 728, 736, 46 So. 138, 139 (1908)).

A. Pre-Trial Issue
1. Issue: Whether Holland's confession should have been excluded?FN2

FN2. Holland's discussion of this issue involves a contention that the allegedly-improper custodial interrogation which led to his incriminating statements violated both his fifth and sixth amendment rights to counsel. In view of the facts, the sixth amendment has no application in this case. See Arizona v. Roberson, 486 U.S. 675, 685, 108 S.Ct. 2093, 2100, 100 L.Ed.2d 704, 715-16 (1988) (discussing subtle distinctions between the fifth and sixth amendment rights to counsel); State v. McNeil, 155 Wis.2d 24, 454 N.W.2d 742, 745-79 (1990) (same); State v. Stewart, 113 Wash.2d 462, 780 P.2d 844, 846-53 (1989) (same).

Holland filed a motion to suppress his confession; he based his motion on the failure of Detectives Payne and Terrell to cease all custodial interrogation after he had allegedly invoked his right to an attorney. The trial judge held a lengthy suppression hearing and then issued an opinion in which he declared the confession admissible:

OPINION AND ORDER

On a former day a Motion to Suppress was heard. Present were the Defendant, Gerald James Holland; his attorneys, Earl Stegall and Lisa Dodson; and the District Attorney, Cono Caranna and his assistant, Margaret Alfonso. After hearing the evidence and arguments of the attorneys, cases were submitted to the Court and the motion was taken under advisement. . . . . . The Defendant contends that the statements of the Defendant and resulting physical evidence are not admissible because the Defendant made a non-ambiguous request for an attorney prior to giving his taped statement. The more credible evidence does not support this contention. Although there was a conflict in the testimony concerning the issue of an attorney, the Court finds beyond a reasonable doubt that the Defendant did not ask for an attorney nor did he invoke his right to an attorney prior to giving his taped statement. The Defendant was mirandized orally and by writing. He then asked, “Don't you think I need a lawyer?” The officer responded by again advising the Defendant of his right to an attorney-his constitutional right to an attorney; and that, if he did not want to talk to them he did not have to; that there were two sides to every story, they had heard one side and they wanted to hear his side. The Defendant responded, “Ok” he would talk to them.

In Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.[2d] 920 (1987), the United States Supreme Court was confronted with the admissibility of an oral confession. The Defendant, after being mirandized, had clearly stated that he would not make a written statement without an attorney, yet, he agreed to and did give them an oral confession. In reversing the Connecticut Supreme Court and holding that the oral confession was admissible, Justice Rehnquist in a 7/2 decision stated at page 927:

The fundamental purpose of the Court's decision in Miranda was “to assure that the individual right to choose between speech and silence remains unfettered throughout the interrogation process” ... “Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities.” (emphasis added) Having been properly warned, the Defendant exercised his own volition and decided to make a statement to the authorities. The proof further established beyond a reasonable doubt that the Defendant was Mirandized, that he understood his rights, that he freely signed a waiver of his rights; that the Defendant freely, voluntarily, knowingly and intelligently waived his constitutional rights without any threats, promises or coercion by the officers. Vol. I, at 75-77.

When validity of a confession is challenged on appeal, an initial inquiry must be conducted. This Court must determine whether the trial judge applied proper legal standards in his evaluation of facts. For example, the judge must have required the State to prove “all facts prerequisite to admissibility beyond a reasonable doubt.” Jones, 461 So.2d at 697; Neal v. State, 451 So.2d 743, 753 (Miss.1984); Stevens v. State, 228 So.2d 888, 889 (Miss.1969); Dover v. State, 227 So.2d 296, 300 (Miss.1969); Harvey v. State, 207 So.2d 108, 115 (Miss.1968). If the judge applied the proper standards, then this Court must determine from a review of the entire record whether the fact-finding is supported by substantial evidence. Jones, 461 So.2d at 697; Neal, 451 So.2d at 753 (employing both “clearly-erroneous” and “substantial-evidence” standards of review); see Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1, 8 (1976) (review of record not limited to evidence before trial judge at suppression hearing). If the judge applied proper legal standards and his factfinding is supported by substantial evidence, then this Court may not disturb his decision to validate the confession. Jones, 461 So.2d at 697.

(a) Parties' Contentions
In the case sub judice, neither Holland nor the State disputes the trial judge's fact-finding. Accord Appellant's Brief at 27 (“[T]here is no factual dispute; the issue presented is essentially a legal question.”). Indeed, no one seems to dispute the judge's citation of law. The dispute, in essence, is whether the judge reached the right conclusion after applying relevant law to the undisputed facts. Holland contends the judge should have concluded: (1) that his question-“Don't you think I need a lawyer?”-constituted an unambiguous request for an attorney and, therefore, the officers should have ceased interrogation; alternatively (2) that his question constituted an ambiguous request and, therefore, the officers should have ceased interrogation except for that intended to clarify. Holland adds that, because improper interrogation did not cease, his “subsequently-obtained confession should be deemed inadmissible.” Appellant's Brief at 22-28. The State of course rejects Holland's contention and, basically, concurs in the trial judge's conclusion. Appellee's Brief at 17-21. Resolution of this dispute will entail an in-depth, step-by-step analysis of both evidence and relevant law. (b) Step-By-Step Analysis of Relevant Law (i) Step One: Was Holland's Question Ambiguous? The first step will require a determination of whether Holland's question constituted an ambiguous invocation of his right to an attorney. [2] [3] The constitutional principles governing custodial interrogation are well-established. One principle dictates that custodial interrogation must be preceded by advice to the putative defendant (hereinafter “defendant”) regarding the Fifth Amendment rights to remain silent and to have an attorney present. Miranda, 384 U.S. at 479, 86 S.Ct. at 1639, 16 L.Ed.2d at 726. If the right to remain silent is invoked, “the interrogation must cease.” If the right to have an attorney present is invoked, “the interrogation must cease until [one] is present.” Id., quoted in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1880, 68 L.Ed.2d 378, 386 (1981); see also Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488, 493-94 (1984) ( per curiam ) (This is a “rigid prophylactic rule.”). Under either circumstance, interrogation may commence or resume in the absence of an attorney if the defendant: (1) “initiated further discussions with the police”; and (2) “knowingly and intelligently [and voluntarily] waived the right ... invoked.” Smith, 469 U.S. at 95, 105 S.Ct. at 492, 83 L.Ed.2d at 494; United States v. Gotay, 844 F.2d 971, 976 (2d Cir.1988).

The right to have an attorney present must be “specifically invoked.” Edwards, 451 U.S. at 482, 101 S.Ct. at 1884, 68 L.Ed.2d at 385. This may be accomplished “in any manner and at any stage of the process.” Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612-13, 16 L.Ed.2d at 706-07. And courts must “give a broad, rather than a narrow, interpretation to a defendant's request for counsel,” and this principle applies “whether the defendant's request is explicit or equivocal.” Towne v. Dugger, 899 F.2d 1104, 1106 (11th Cir.1990) (quoting Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1406, 89 L.Ed.2d 631, 640 (1986)).

If a defendant makes equivocal or ambiguous utterances which could be interpreted as an invocation, then the trend is to require cessation of interrogation except for strictly-limited inquiry for clarification purposes. Gotay, 844 F.2d at 974 (“The trend ... is to adopt that when a suspect makes an equivocal statement that can arguably be construed as a request for counsel, interrogations must cease except for narrow questions designed to clarify the earlier statement and the suspect's desire for counsel.”); see Towne, 899 F.2d at 1106; United States v. Porter, 776 F.2d 370 (1st Cir.1985), cert. denied, 481 U.S. 1048, 107 S.Ct. 2178, 95 L.Ed.2d 835 (1987); United States v. Cherry, 733 F.2d 1124, 1130-31 (5th Cir.1984), cert. denied, 479 U.S. 1056, 107 S.Ct. 932, 93 L.Ed.2d 983 (1987); United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985).FN3 This Court has joined the trend by permitting an interrogator to clarify ambiguous utterances. See, e.g., Kirkland v. State, 559 So.2d 1046, 1048 (Miss.1990); Berry v. State, 575 So.2d 1, 5-8 (Miss.1990). FN3. Notably, one federal circuit court has held that an ambiguous utterance means all interrogation must cease- including that intended to clarify. See Maglio v. Jago, 580 F.2d 202, 205 (6th Cir.1978).

“Precedents do not establish a bright line rule for determining what sorts of statements amount to equivocal requests for an attorney.” Towne, 899 F.2d at 1106; see Robinson v. Borg, 918 F.2d 1387, 1391 n. 4 (9th Cir.1990) (“The totality of circumstances test, which is used to determine whether an accused has ‘knowingly and voluntarily’ waived his Miranda rights, has no role in the determination of whether an accused's request for counsel is clear or equivocal.”) (quoting Owen v. Alabama, 849 F.2d 536, 539 (11th Cir.1988)). This determination is critical, though, because incriminating information is inadmissible evidence if elicited after ambiguous utterances and prior to clarification. Gotay, 844 F.2d at 975; Fouche, 776 F.2d at 1405 (citing cases); Anderson v. Smith, 751 F.2d 96, 104 n. 9 (2d Cir.1984).

In the case sub judice, the trial judge found that Holland had asked the detectives: “Don't you think I need a lawyer?” The judge then applied the law to this fact-finding and seems to have concluded that Holland's question constituted a declination of his right to have an attorney present. This conclusion is inconsistent with case law. As noted, precedents do not establish a bright-line rule for determining whether an utterance is ambiguous, and the United States Supreme Court has twice expressly declined to address the issue. Towne, 899 F.2d at 1106; see Connecticut v. Barrett, 479 U.S. 523, 529 n. 3, 107 S.Ct. 828, 832 n. 3, 93 L.Ed.2d 920, 928 n. 3 (1987); Smith, 469 U.S. at 96, 105 S.Ct. at 493, 83 L.Ed.2d at 494; see also Gotay, 844 F.2d at 974-75 (“The Supreme Court has not defined ‘ambiguity’ in this context or ruled on the consequences thereof.”). Precedents do, however, establish that questions such as the one posed by Holland are ambiguous and require clarification.

The recent case- Towne v. Dugger, 899 F.2d 1104 (11th Cir.1990)-is particularly instructive. In Towne, the Eleventh Circuit held that the defendant's question-“Officer, what do you think about whether I should get a lawyer?”-was ambiguous and required clarification. Id. at 1107-08 (citing cases in which an “interrogating officer was asked by the defendant for advice on whether he should exercise his right to get an attorney”). The Court explained that “[s]uch questions reveal to the interrogating officer that the defendant is contemplating exercising his right to have an attorney present, and under [established case law], the officer should clarify the defendant's wishes before proceeding further.” Id. at 1109 (citing cases); see Norman v. Ducharme, 871 F.2d 1483, 1486 (9th Cir.1989) (defendant's question-“[Do you think I] should see a lawyer?”-deemed ambiguous); U.S. v. Fouche, 833 F.2d 1284 at 1286-87 (9th Cir.1987) (defendant's question-“What should I do?”-deemed ambiguous).FN4

FN4. The Minnesota Supreme Court recently opined that a murder suspect's utterance during questioning-“... I'm just going to need me a good lawyer, ya know ...”-was neither ambiguous nor unambiguous because it was “fleeting,” “off-hand,” “in mid-sentence,” and “about his future need for a good attorney.” Thus, the Court held that the interrogators' subsequent questioning about the murder, which led to a confession, was proper. State v. Hale, 453 N.W.2d 704, 708 (Minn.1990); compare with Robinson v. Borg, 918 F.2d 1387, 1391-93 (9th Cir.1990) (construing the following utterance as unambiguous: “I have to get me a good lawyer, man. Can I make a phone call?”).

Questions like Holland's are not only to be characterized as ambiguous-not only as a matter of law-but also as a matter of definition. Accord Knight v. State ex rel. Moore, 574 So.2d 662, 668 (Miss.1990) (“disposition of the issue ... require[s] comprehension of the ‘popular use of the word as shown by the dictionaries' ”) (quoting O.W. Holmes' opinion in Commonwealth v. Wright, 137 Mass. 250, 251-52 (1884)). Definitionally, a “question” is “[a]n expression of inquiry that invites or calls for a reply” or “a subject or point open to controversy [or] under discussion or being considered.” THE AMERICAN HERITAGE DICTIONARY 1015 (2d ed. 1985). Conversely, a “declaration” is “[a]n explicit or formal statement or announcement”). Id. at 372. Thus, when a suspect poses a question, interrogators should be permitted to respond for purposes of clarification; this plain-English or common-sense approach is consistent with the sound law pronounced in Towne and numerous other cases. FN5 See, e.g., Robinson v. Borg, 918 F.2d 1387, 1391 (9th Cir.1990) ( “In analyzing a defendant's request for counsel, we take a defendant's words ‘understood as ordinary people would understand them.’ ”) (quoting Barrett, 479 U.S. at 529, 107 S.Ct. at 832, 93 L.Ed.2d at 928).

FN5. The Ninth Circuit Court of Appeals considers “conditional” utterances to be unambiguous invocations to Fifth Amendment rights. Robinson v. Borg, 918 F.2d 1387, 1392 (9th Cir.1990). The following is an example: SUSPECT: Can I talk to a lawyer? At this point, I think you're looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect? Smith v. Endell, 860 F.2d 1528, 1531 (9th Cir.1988). On the other hand, the Ninth Circuit noted that utterances inhering the word-“might,” “maybe,” or “perhaps”-would generally be deemed ambiguous. Robinson, 918 F.2d at 1393 (citing cases). In sum, Holland's question constituted an ambiguous invocation as a matter of law and as a matter of definition.FN6 With the foregoing in mind, this Court must now determine whether the police detective responded to Holland's ambiguous invocation within constitutional parameters. That is, did the detective tailor his response solely for the purpose of clarifying the ambiguity?

FN6. Further support for the conclusion that Holland's question does not rise to the level of an unambiguous invocation is the fact that courts have consistently “avoid[ed] attributing a talismanic quality to the word ‘attorney’ falling from a suspect's lips.” United States v. Porter, 764 F.2d 1, 18 (1st Cir.1985). In other words, “any mention of an ‘attorney’ is not necessarily an invocation of the right to counsel or even an equivocal request for present representation.” Id. (citing several cases); see also Norman v. Ducharme, 871 F.2d 1483, 1486 (9th Cir.1989) (“Mere mention of an attorney does not constitute an equivocal request for counsel, as the word ‘attorney’ is not talismanic.”) (citing cases); State v. Hale, 453 N.W.2d 704, 708 (Minn.1990) (“[N]ot every mention of the word ‘lawyer’ or ‘counsel’ or ‘attorney’ by a suspect ‘arguably’ suggests that the suspect wants a lawyer before submitting to further questioning.”) (citing cases).

ii. Step Two: Did the Detectives Clarify Holland's Question?
As discussed, an ambiguous utterance means that any subsequent interrogation “must be limited to attempts to clarify and must not coerce or intimidate the suspect into waiving his rights.” Fouche, 833 F.2d at 1287 (citing Nash v. Estelle, 597 F.2d 513, 517-18 (5th Cir.) (en banc), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979)); see Owen, 849 F.2d at 539 (“When a defendant makes an equivocal request for an attorney during a custodial interrogation, ‘the scope of the interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it is clarified.’ ”) (quoting Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979) (emphasis omitted); Terry v. LeFevre, 862 F.2d 409, 412 (2d Cir.1988) (“ ‘[W]hen a suspect makes an equivocal statement that arguably can be construed as a request for counsel, interrogation must cease except for narrow questions designed to clarify the earlier statement and the suspect's desire for counsel.’ ”) (quoting Gotay, 844 F.2d at 975); accord United States v. Pena, 897 F.2d 1075, 1081-82 (11th Cir.1990) (discussing analogous law pertaining to ambiguous invocation of right to remain silent) (citing cases); Delap v. Dugger, 890 F.2d 285, 290 (11th Cir.1989) (same).

Of utmost import, an interrogator's “behavior” must not exceed the limits of permissible clarification. Courts have concluded that determining the propriety of such behavior is “essentially a factual issue” that requires “review under a clearly erroneous standard.” See, e.g., Fouche, 833 F.2d at 1286; United States v. McConney, 728 F.2d 1195, 1200-02 (9th Cir.) ( en banc ), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The “critical factor” in determining the validity of the government's behavior is “whether a review of the whole event discloses that the interviewing agent has impinged on the exercise of the suspect's continuing option to cut off the interview.” Fouche, 833 F.2d at 1287 (quoting Nash, 597 F.2d at 518); see Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989) (“An officer's attempt to seek clarification of an ambiguous statement is not generally construed as interrogation for Miranda purposes if the question does not ‘enhance the defendant's guilt or raise the offense to a higher degree.’ ”) (quoting W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE 514 (1984)); Christopher v. State of Florida, 824 F.2d 836, 842 (11th Cir.1987) (Clarification may not include “questions that, though clothed in the guise of ‘clarification,’ are designed to, or operate to, delay, confuse or burden the suspect in his assertion of his rights.”) (footnote omitted), cert. denied, 484 U.S. 1077, 108 S.Ct. 1057, 98 L.Ed.2d 1019 (1988).

In the case sub judice, the trial judge did not reach the “clarification” issue because he found that Holland's question or utterance constituted an unambiguous waiver of rights. The judge did, however, make a relevant fact-finding with which Holland does not dispute: The officer responded [to Holland's question] by again advising him of his right to an attorney-his constitutional right to an attorney; and that, if he did not want to talk to them he did not have to; that there were two sides to every story, they had heard one side and they wanted to hear his side. The Defendant responded, “Ok” he would talk to them. Vol. I, at 75-77. Immediately following Holland's decision to waive his rights and “talk to them,” the officers again advised Holland of his rights-which he again waived before confessing. Thus, the officers did not overreach or wander into un constitutional territory. They merely clarified Holland's ambiguous question by twice explaining his option to exercise his Miranda rights or to relate his “side of the story.” The latter option prevailed; Holland decided he “would talk to them.” FN7

FN7. Compare with Robtoy v. Kincheloe, 871 F.2d 1478, 1479 & 1482-83 (9th Cir.1989) (To clarify a murder suspect's ambiguous request-“Maybe I should call my attorney”-the interrogator explained that “if you want your attorney, this conversation ends right here.” The suspect said he “understood,” and the interrogator then told him that the “questioning would proceed and ‘if we arrived at a point [when he] didn't want to answer any questions, he didn't want to say anymore, or he wanted his attorney, to say so.’ ” The suspect said “okay” and confessed. Held: Clarification did not “impinge[ ] on the exercise of the suspect's continuing option to cut off the interview.); Owen, 849 F.2d at 539-40 (To clarify a murder suspect's ambiguous utterance-“I think I'll let ya'll appoint me one”-the interrogators “proceeded to question [him] about his involvement in the murder.” Held: Such questioning violated Miranda.); Fouche, 833 F.2d at 1286-89 (To clarify a robbery suspect's ambiguous utterance-“What should I do?”-the interrogator explained that he was not a lawyer, could not give legal advice, and wanted to know if he wished to make a statement about the robberies. Held: Proper clarification.); Thompson, 601 F.2d at 769 & 772 (To clarify a murder suspect's ambiguous utterance-that he “desire[d] to make a statement but ... that he first wanted to tell his story to an attorney”-the interrogators inaccurately advised that “an attorney could not relate [his] story to the police ... and that an attorney would probably advise him to say nothing.” Held: Clarification-which was “materially incorrect,” “presumptive,” and “persuasive”-was improper and overreaching.); Nash, 597 F.2d at 516 (To clarify a murder suspect's ambiguous utterance-“I would like to have an attorney, but I would rather talk to you”-the interrogator explained that he “had hoped that [they] might talk about” the crime, but that if he wanted an attorney, the interrogation would “have to stop right now.” Held: Proper clarification.); Berry v. State, 575 So.2d 1, 5 (Miss.1990) (To clarify a murder suspect's ambiguous utterance-“[I changed my mind,] I don't want to call [an attorney]”-the interrogators asked: “Well, are you still willing to talk to us?” Held: Proper clarification.); State v. Montez, 309 Or. 564, 789 P.2d 1352, 1356-59 (1990) (To clarify capital-murder suspect's ambiguous utterance-“I think I need a lawyer to talk about the rest of it so I don't get linked up”-an interrogator asked if “he was telling us that he wanted an attorney and did not want to talk to us anymore.” The suspect replied “no”-after which the interrogator repeated that he had a right to have an attorney present and asked “if that's what he wanted.” The suspect replied that “that is not what he wanted.” The interrogator then asked if he was “still willing to talk to us?” The suspect replied that he would “talk ... without one” and then related incriminating statements. Held: Proper clarification.); see also Hovland v. Blodgett, 914 F.2d 262 (9th Cir.1990) (unpublished opinion located in WESTLAW, database “Allfeds”) (The suspect responded to interrogators' questioning about a murder: “I think I have reached the point where I think I should be thinking about an attorney.” One of the interrogators then left the interrogation room, returned several minutes later, pointed to a telephone and telephone book within the suspect's reach, and told the suspect that “the Judge had authorized [the suspect] to open the phone book, call any attorney and ask him to be present at no expense to him.” The suspect “indicated he understood but took no further action.” The interrogators resumed questioning and the suspect confessed. Held: Admittedly, the interrogators did not “explicitly” clarify the suspect's ambiguous utterance before resuming questioning. Nonetheless, the waiver was valid because the suspect's own inaction constituted sufficient clarification of the ambiguity.).

In sum, Detectives Payne and Terrell's response, which culminated in Holland's decision to waive his rights, did not exceed constitutional parameters. With the foregoing in mind, this Court must finally determine whether Holland knowingly, intelligently, and voluntarily waived his rights.

iii. Final Step: Did Holland validly waive his rights?

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the [State]” to prove FN8 the validity of a defendant's waiver of his “privilege against self-incrimination and his right to retained or appointed counsel.” North Carolina v. Butler, 441 U.S. 369, 372-73, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 291-92 (1979) (quoting Miranda, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 706). FN8. As noted, validity of a waiver under Mississippi law must be proved beyond a reasonable doubt. See Section II(A)(1) of this opinion.

Specifically, Miranda requires proof that “the waiver [was] made voluntarily, knowingly and intelligently.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707, quoted in Nash, 597 F.2d at 518; see Edwards, 451 U.S. at 482, 101 S.Ct. at 1884, 68 L.Ed.2d at 385 (“[W]aivers of counsel must not only be voluntary, but also must constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege.”); Gotay, 844 F.2d at 976 (same) (citing Smith, 469 U.S. at 95, 105 S.Ct. at 492-93, 83 L.Ed.2d at 1494).

In short, “[a] waiver is voluntary if it is ‘the product of a free and deliberate choice rather than intimidation, coercion or deception.’ ” Moreover, “[a] waiver is knowing and intelligent if it is ‘made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.’ ” Grooms v. Keeney, 826 F.2d 883, 887 (9th Cir.1987) (quoting and citing cases) (emphasis added).

In the case sub judice, the trial judge concluded that the State met its burden- i.e., Holland voluntarily, knowingly, and intelligently waived his rights. Whether this conclusion is correct is a mixed issue of law and fact. Norman, 871 F.2d at 1486; Terrovona v. Kincheloe, 852 F.2d 424, 428 (9th Cir.1988). In other words: (1) if the judge based his finding upon appropriate principles of law; (2) and the finding is supported by the facts ( i.e., by substantial evidence); (3) then this Court may not reverse. Schmitt v. State, 560 So.2d 148, 151 (Miss.1990); cf. State v. Whitaker, 578 A.2d 1031, 1039 (Conn.1990) (“Where the trial court makes specific factual findings regarding [this issue], those findings are entitled to deference so long as they are supported by substantial evidence, but where, as here, the trial court has made no specific findings, we must review the evidence and make our own determination of the circumstances surrounding the defendant's waiver of his constitutional rights”).

First, the evidence gleaned from the record which arguably discredits the judge's fact-finding is summarized:

1. Holland had been drinking up until his arrest. See State v. Williams, 208 So.2d 172, 175 (Miss.1968) (holding that, if defendant was in “an acute, rampant state of intoxication equivalent to mania,” a waiver cannot be considered valid).

2. Holland had not slept for nearly 24 hours prior to waiving his rights. See Greenwald v. Wisconsin, 390 U.S. 519, 520-21, 88 S.Ct. 1152, 1153-54, 20 L.Ed.2d 77, 79-80 (1968) (Court considered lack of sleep a factor in its determination that confession not “the product of his free and rational choice”); Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944) (same); Neal, 451 So.2d at 756 (where this Court deemed significant the “evidence at the suppression hearing [which] reflect[ed] that Neal was fresh on the afternoon ... when he gave his confession” (emphasis added)).

3. Holland's periodic bouts of crying may be reflective of emotional instability, which could have impaired his ability to knowingly, intelligently, and voluntarily waive his rights. This point is not raised by Holland; nonetheless, it is relevant to the analysis of the validity of the waiver. Compare State v. Williams, 208 So.2d 172, 175 (Miss.1968) (where this Court deemed the waiver invalid in view of the defendant's “mental imbalance” and “maniacal” behavior), with Kniep v. State, 525 So.2d 385, 389 (Miss.1988) (where this Court considered, but rejected without comment, defendant's claim that she was so “emotionally distraught” and in such a “confused mental state” that her ability to “intelligently” waive her rights was impaired.); see also Whitaker, 578 A.2d at 1039 (emotional state deemed relevant).

The following is a summary of the evidence which supports the conclusion that Holland did have the requisite state of mind-despite his drinking and lack of sleep:

1. Holland repeatedly acknowledged that he understood his Miranda rights; he expressed this acknowledgement both orally and in writing (by signing the form). See Butler, 441 U.S. at 372-73, 99 S.Ct. at 1757, 60 L.Ed.2d at 291-92 (“An express written or oral statement of waiver of the right ... is usually strong proof of the validity of the waiver.” (emphasis added)); see also Neal, 451 So.2d at 753 (“[T]he mere giving of the Miranda warnings, no matter how meticulous, no matter how often repeated, does not [automatically] render admissible any inculpatory statement thereafter given by the accused.”).

2. He was 49 years old, has a high school and vocational education, and considers himself to be a “very intelligent person.” See Coleman v. State, 378 So.2d 640, 644 (Miss.1979) (Upon noting that “[a]ge and intelligence level are factors to be considered,” the Court concluded that a 16-year-old with a fourth-grade education could properly waive his rights.); Jones, 461 So.2d at 696 (educational background considered as a factor) (citing cases); cf. Williamson v. State, 330 So.2d 272, 276 (Miss.1976) (“[T]he will of a person who is of weak intellect may be more easily overcome than that of one who is more intelligent.”).

3. His criminal past provides him with some experience and knowledge about a suspect's Miranda rights. See Hovland v. Blodgett, 914 F.2d 262 (9th Cir.1990) WESTLAW, “Allfeds” database) (defendant's “past experience with the judicial system” factored into the court's decision that he “knew how to request counsel” and “knowingly waived his Miranda rights”).

4. Holland's intoxication nor lack of sleep impaired his ability to knowingly, intelligently, and voluntarily waive his rights: Five witnesses testified that Holland did not appear to be impaired by alcohol and did not slur his speech.FN9 See Kniep, 525 So.2d at 389 (Rejecting the defendant's claim that intoxication (and other specified factors) affected the voluntariness of her waiver, this Court cited the testimony of one witness who “noticed an odor of alcohol on [the defendant's] breath” but felt the defendant “appeared to know what she was doing and what she was talking about.”); Stevens, 458 So.2d at 728-29 (same); see also United States v. D'Antoni, 856 F.2d 975, 981 (7th Cir.1988) (“The defendant had been drinking and smoking marijuana during the past twenty-four hours.... The defendant himself, however, testified that he had had no alcohol in the five or six hours prior to the interview, and that he understood the detectives' questions.... We agree ... that the defendant's statements to the detectives were made voluntarily.”). FN9. The tape containing Holland's confession reveals no slurring or incoherence.

Holland testified that he had been a chronic drinker. See Stevens v. State, 458 So.2d 726, 728 (Miss.1984) (Rejecting the defendant's claim that his blood alcohol content of .16 “prevented” a proper waiver, this Court cited an expert's opinion that “chronic drinking” increases the body's ability to “degrade alcohol in the blood.”). Periodic bouts of crying aside, Holland was calm and cooperative “at all phases of the investigation”-particularly at the moment when he waived his rights. See, e.g., Appellant's Brief at 3. This is an important point since this Court once held that a defendant's waiver could not have been made “rationally, voluntarily and intentionally” because the evidence evinces “an acute, rampant state of intoxication equivalent to mania” and a “deranged and psychotic mental imbalance.” Williams, 208 So.2d at 175.

Holland's meticulous post-murder scheming aimed at “covering his tracks” to avoid arrest reflects a coherent, unimpaired state of mind. See generally Sections I(A)(4) & (5) of this opinion, supra; see also Vol. XIV, at 2489-90 (Holland's testimony).

5. Holland's lack of sleep did not impair his ability to waive his rights in view of the facts. Accord D'Antoni, 856 F.2d at 981 (defendant's lack of sleep for 24 hours preceding interrogation did not render waiver invalid-particularly since the defendant testified that he understood the detectives' questions and the interrogation was not “lengthy or arduous [ i.e., 30 minutes]”).

6. Holland's evidence of coercion or involuntariness is either unsubstantiated FN10 or insufficient FN11 and is contradicted by his taped confession containing the admission that no one has “threatened,” “intimidated,” or “promised [him] anything.” State's Exhs. 8 & 56.

FN10. Holland contended that the detectives “badgered” him, which led him to “give in” and confess. The record provides absolutely no evidentiary support for this allegation. FN11. Holland characterized Terrell's statement-“Douglas has told us his [story]; we'd like to hear [yours]”-as coercive. Terrell's statement simply does not evince coercion. Accord Nash, 597 F.2d at 519 (Nash uttered an ambiguous invocation of his right to have an attorney present, which the interrogator clarified: “Okay. I had hoped that we might talk about this [crime], but if you want a lawyer appointed, then we are going to have to stop [the interrogation] right now.” Held: Clarification not coercive. (emphasis added)).

Based upon the “particular facts and circumstances surrounding [this] case, including the background, experience, and conduct of the accused,” this Court affirms the trial judge's finding that Holland knowingly, intelligently, and voluntarily waived his rights. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466.

(c) Disposition
In view of the foregoing, this Court concludes: (1) Holland's utterance about exercising his right to have an attorney present was ambiguous; (2) the detectives properly clarified the ambiguity; (3) Holland knowingly, intelligently, and voluntarily waived his rights; (4) Therefore, the trial judge properly admitted the confession.

B. Guilt-Phase Issues
1. Issue: Whether the Trial Judge's Restriction of Holland's Attempted Impeachment of a Witness and Cross-Examination of Another Witness Violated His Constitutional Rights? This issue involves three alleged errors; they are addressed individually.

(a) First Alleged Error
During cross-examination of Douglas, Holland asked: “Did you [Douglas] ever tell [Lester Thompson, a polygrapher] that it was on [his] mind to have sex with Krystal?” Douglas emphatically and repeatedly said, “No.” For impeachment purposes, Holland requested that he be allowed to call to the stand Lester Thompson, who allegedly would testify that Douglas had once told him that he “thought it would be nice to have sex with Krystal.” The State objected on the basis of irrelevancy, and the trial judge after much debate denied Holland's request. See generally Vol. IX, at 1503-13; Vol. XIII, at 2265-70. Holland now questions this denial.

This Court has held that “in laying the predicate to introduce prior inconsistent statements ... the statement made in court [must be] relevant to the issue in the case and therefore not collateral.” Carlisle v. State, 348 So.2d 765, 766 (Miss.1977) (citing cases); accord Harrison v. State, 534 So.2d 175, 178 (Miss.1988). Clearly, Douglas' alleged sexual fantasies about Krystal have no relevance to the issue of whether Holland raped Krystal. In sum, Holland was on trial- not Douglas. The testimony which Holland attempted to elicit was irrelevant to proving or disproving guilt and, therefore, the judge properly sustained the State's objection.

<(b) Second Alleged Error
Later in the trial, Holland asked Boyer during cross-examination whether Krystal and her former boyfriend, Bryan Anderson, had “had sexual relations ... on a regular basis.” The State objected on the basis of Miss.R.Evid. 412. Under Rule 412, “evidence of the past sexual behavior of an alleged victim is not admissible” in a criminal case “in which a person is accused of a sexual assault.” The trial judge sustained the objection. Holland now questions this decision. Vol. X at 1608-09.

Holland contends that Rule 412 has nothing to do with relevancy because it was “designed [solely] to protect the privacy of a [ living ] victim”- not a dead victim like Krystal. Appellant's Brief at 53-54 (citing Rule 412's comment (a)). Common sense dictates that Holland's contention is meritless. At the very least, Holland needs to look at the title of the rule: “Sex Offense Cases; Relevance of Victim's Past Behavior.”

Holland does nonetheless contend that the testimony about Krystal's past sexual behavior is relevant: “Anderson certainly could have had sex with [Krystal] before Boyer saw her at the arcade” on the night of the murder. Id. at 54. Maybe so. But as the State aptly notes, Holland is merely “grasping at straws.” Appellee's Brief at 39. Whether Krystal and a former boyfriend regularly engaged in sexual relations is a frivolous inquiry having no relevance to the issue of Holland's guilt. See MISS.R.EVID. 401-03. In sum, the judge properly sustained the State's objection to Holland's question about Krystal's past sexual behavior.

(c) Third Alleged Error
Finally, Holland asked Boyer to testify about a wager which Anderson allegedly made with a friend known as “Louie.” Anderson allegedly bet that he would “sleep” with Krystal before Louie would “sleep” with a girl known as “Deedee.” Holland asked this question because he again wanted to raise the possibility that Anderson (and not Holland) may have had sex with Krystal on the night of the murder. The State objected. The judge sustained the objection after characterizing the testimony which Holland attempted to elicit as inadmissible hearsay. Vol. X, at 1610-14. Whether the testimony would constitute inadmissible hearsay is an issue which this Court need not address. The judge's decision is affirmed on the bases discussed in the preceding sections. In other words, the testimony would have been irrelevant pursuant to Rule 401 and common sense.

2. Issue: Whether a Videotape and Wash Cloth Were Too Prejudicial to Admit into Evidence?
The State proposed to introduce into evidence a videotape of the exhumation of Krystal's body from the site where Holland buried it and a foul-smelling wash cloth which the police found near the burial site.

(a) The Videotape
i. Parties' Contentions The video shows: (1) the road leading to the burial site, (2) the area surrounding the site, and (3) the exhumation. Holland challenges the introduction of the video because “it doesn't tend to prove [his] guilt ... in any way,” and it “would tend to inflame the jury because of the gruesome nature of the film.” Holland adds: “There is nothing there that could not or has not been testified to and has not been supported by still photo[s].” (Photos of the grave site were admitted into evidence.) In sum, Holland contends that “any probative value the video might have would be outweighed by the prejudicial effect.” Id. at 1694; see also Appellant's Brief at 48.

At trial, the State countered that the video's admissibility was necessary: (1) to show the landscape of the burial site about which two witnesses had testified; (2) to show that Krystal's body was wrapped in a sheet which was similar to Holland's bed linen; and (3) to show more than that which the still photos show. Vol. X, at 1699-1700 & 1723. And on appeal, the State provides several more reasons for admitting the video: (1) it “depicted the scene where the body was found and those matters found along side the body,” (2) it shows the “physical condition of the burial scene and the ability of a truck to turn in that area,” (3) it “added to the jury's understanding of what occurred at the site and completed the prosecution's picture of the events of those early morning hours,” (4) it “corroborate[d] the condition of the body of the victim and the testimony of the officers who unearthed the body,” and (5) it “tie[d] evidence found at the grave site to evidence found at appellant's home.” Appellant's Brief at 35.

The trial judge allowed the State to introduce the video but on the condition that the audio be turned “off.” He ordered the elimination of audio to prevent the jury from hearing prejudicial comments which may have been made during the taping. Vol. X, at 1725.

ii. Relevant Law
Both parties support their contentions regarding admissibility of the “gruesome” video by citing analogous law governing admissibility of “gruesome, inflammatory photos.” See Appellant's Brief at 49-50; Appellee's Brief at 34. In Williams v. State, Justice Sullivan summarized this law: [G]enerally, the admissibility of photo[s] is within the sound discretion of the trial judge and the admission is proper, so long as their introduction serves some useful evidentiary purpose.... [Accordingly, w]e have repeatedly admitted photo[s] of every description with the explanation that some “probative value” is present.... Abuse of discretion is sometimes explained to be admission of photo[s] when a killing is not contradicted or denied or the corpus delicti and the identity of the deceased have been established....

A review of our case law indicates that the discretion of the trial judge runs toward almost unlimited admissibility regardless of gruesomeness, repetitiveness, and the extenuation of probative value. At this point ..., no meaningful limits exist in these so-called balance of probative/prejudicial effect of photo[s] test. 544 So.2d 782, 785 (Miss.1987) (citations omitted). A few years later, this Court finally established a line of demarcation. In McNeal v. State, gruesome photos depicting a maggot-infested body were deemed devoid of “any evidentiary purpose.” The Court held: “[W]e believe that the probative value of the photos is outweighed by their tendency to inflame and prejudice the jury”; therefore, “the trial [judge] abused [his] discretion ... in allowing the[ir] introduction.” 551 So.2d 151, 159 (Miss.1989) (citing MISS.R.EVID. 403 FN12). At that point, the Court delineated a guideline for future cases: When deciding on the admissibility of gruesome photos, trial judges must consider: “(1) whether the proof is absolute or in doubt as to identity of the guilty party, [and] (2) whether the photos are necessary evidence or simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.” Id.

FN12. Rule 403 provides that relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

iii. Disposition This Court must decide whether the probative value, if any, of admitting the video outweighed any prejudicial effect. In other words, did the trial judge abuse his discretion by admitting the video? As discussed, the State contended that the video should be deemed admissible for various reasons. In short, the State explains that the video reveals more than that which is revealed through the photographic evidence and that the video provides substantiation for several witnesses' testimony regarding the burial site.

The State's contention, which lacks specificity, is unpersuasive. The video does not reveal more than that which is revealed through the photos; indeed, this Court holds the video was of no probative value to the State's case. This does not mean, however, that the video was prejudicial or inadmissible. In view of the video's content as well as all the horrific and overwhelming evidence presented in this case, this Court holds that the video was not prejudicial.

In sum, the video should not have been admitted “on grounds of repetition, redundancy and cumulativeness.” Hansen v. State, No. 87-DP-0823, slip op. at 49, 1991 wl 280025, (Miss.December 18, 1991). However, in view of a lack of prejudicial effect, the video's erroneous admission does not warrant reversal. Id.

(b) The Wash Cloth
Holland objected to the introduction of a white wash cloth “not only because of its appearance, but because of the ... odor coming from the article.” Holland explains that “the odor is so strong and pungent that it would [‘adversely’] effect [ sic ] the jury”; that is, “it's probative value outweighs the prejudicial effect.” The State countered by simply stating that: “[It's an item] found in the grave site with the victim [and is p]robative for many reasons, including just the fact that it is another item found in her grave site.” The trial judge admitted the cloth after concurring in the State's rationale.

The law relevant to admissibility of the video is also relevant to the disposition of whether the wash cloth should have been admitted. In other words, this Court must determine whether the trial judge abused his discretion in deciding that the probative value, if any, of the smelly, stained cloth outweighed its tendency, if any, to inflame and prejudice the jury. The State contends that it was probative “for many reasons”; the State declares that it was found at the grave site. The cloth would have been relevant had it been identified as belonging to Holland or as deriving from Holland's home. Absent a sufficient connection between the cloth and Holland and/or the crime, the judge should have excluded it. To conclude otherwise would mean admitting anything found at the scene of a crime-notwithstanding its irrelevance. All this aside, this Court deems the error harmless in view of the overwhelming evidence presented in this case. Moreover, any prejudicial effect of admitting the cloth dims in view of the numerous items found at the grave site which were admitted without challenge. These items include “a sample of soil that covered the victim in the grave site,” a pair of white corduroy shorts, a pair of panties, a black towel, a bag of concrete, a woman's black purse, a pair of white rubber gloves, a brown towel, a lace bra, white shoes, notes from a notepad, and make-up. The State also introduced a bloody pillow case, which police investigators found at the grave site; Holland challenged the admissibility of this item on the ground that it contained an excessive amount of blood stain.FN13 The trial judge overruled the objection, and Holland did not challenge this decision on appeal. FN13. The pillow case and the wash cloth are the only items which Holland challenged on the ground of excessive blood stain.

In sum, this Court concludes that admitting the cloth constituted an erroneous, albeit harmless, decision.

3. Issue: Whether the State Failed to Comply With Discovery?
(a) Parties' Contentions

Prior to trial, Holland filed a Rule 4.06 motion requesting disclosure of: The name, address and qualifications of any expert witness intended to be called by the State. The substances of their testimony and the facts that [ sic ] relies upon in support of same are also requested. Vol. I, at 42. Judge Vincent Sherry granted the motion. Id. at 53. In response, the State provided Holland with various documents: (1) a letter from Dr. Paul McGarry to the State discussing his opinion about instruments which could have caused Krystal's injuries; (2) a letter from the State informing Holland of its intention to “seek[ ] the opinion of Dr. Paul McGarry as to the percentage of alleged rape cases wherein seminal fluid or spermatozoa are not present”; (3) a copy of McGarry's “Curriculum Vitae”; and (4) an autopsy report prepared by Dr. Paul McGarry.

At trial, the State called McGarry to testify about the autopsy he performed on Krystal. At one point, after testifying about Krystal's injuries and bruises, the State asked McGarry: Doctor, do you have an opinion about the amount of time it would take for such bruising to form? Vol. XII, at 2058; see also id. at 2186-87 (further related questioning). Holland objected to this question on the ground that: the [“substance” of the] doctor's opinions as to the time when [Krystal's] bruises began to form, which would lead to the doctor's opinions as to the time when the injuries must have been inflicted, were never disclosed [during] discovery.FN14 Holland contends that this questioning was prejudicial because: [He] had denied raping [Krystal].... Given this, evidence that bruises attributable to forced intercourse were inflicted at a time when only [he] was awake was plainly devastating to [his] defense. Appellant's Brief at 31. Holland contended that the State had known about McGarry's opinion regarding “time” (and “sequence”) of bruises and injuries for at least a week prior to trial, and that its failure to disclose this information constituted “trial by ambush.” Holland consequently moved for a mistrial or exclusion of such testimony. Id. at 2059-60 & 2065.

The State did not deny that it had “known about McGarry's opinion”; however, the State contended that McGarry's opinion is based on facts discoverable in the autopsy report-a copy of which Holland was provided. After extensively debating this issue outside the jury's presence, the judge halted the trial and granted Holland an “unlimited opportunity” to interview McGarry. The interview transpired overnight. Vol. XII, at 2059-88.

The next morning, after the interview, the debate continued. The judge ultimately overruled Holland's motion-after which the following exchange transpired: JUDGE VLAHOS: You will agree for the motion for mistrial or exclude the evidence, that on yesterday evening you were given ample opportunity to interview with Dr. McGarry.... [Y]ou visited with him for about ten or fifteen minutes; is that correct? HOLLAND: That is correct. We did have an opportunity to talk with him. JUDGE: And an unlimited opportunity; is that correct? HOLLAND: Yes. Id. at 2095-98. In this appeal, Holland challenges the judge's decision to overrule his motion.

(b) Relevant Law and Disposition
(i)

When confronted with an alleged Rule 4.06 violation, this Court must review the record to determine whether the judge followed the guideline enunciated in Box v. State, 437 So.2d 19, 22-26 (Miss.1983) (Robertson, J., specially concurring) (now codified in Rule 4.06(i)):

1. Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting the physical evidence, etc.

2. If, after this opportunity for familiarization, the defendant believes he may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes a waiver of the issue.

3. If the defendant does request a continuance the State may choose to proceed with trial and forego using the undisclosed evidence. If the State is not willing to proceed without the evidence, the trial court must grant the requested continuance. Quoted in Cole v. State, 525 So.2d 365, 367-68 (Miss.1987), and Kelly v. State, 553 So.2d 517, 520 (Miss.1989).FN15 Rule 4.06 and the Box guideline are designed to avoid “ambush” or unfair surprise to either party at trial. Harris v. State, 446 So.2d 585, 589 (Miss.1984); Ford v. State, 444 So.2d 841, 843 (Miss.1984).

FN15. See also Middlebrook v. State, 555 So.2d 1009, 1011 (Miss.1990) ( “We have repeatedly held an accused's remedy for tardy disclosure of that to which he was entitled in pre-trial discovery is a continuance reasonable under the circumstances.”) (citing Moore v. State, 536 So.2d 909, 911 (Miss.1988); Stewart v. State, 512 So.2d 889, 893 (Miss.1987); Foster v. State, 484 So.2d 1009, 1011 (Miss.1986)); West v. State, 553 So.2d 8, 18 n. 6 (Miss.1989) (“motion for a mistrial in this context is the functional equivalent of a motion for a continuance”); Cockrell v. State, 566 So.2d 1243, 1246 (Miss.1990) (Rule 4.06(i) guideline is “premised on the view that prejudice determinations may be best made by the party affected.”).

The question presented here brings into direct conflict two important interests. First there is prosecution's interest in presenting to the jury all relevant, probative evidence. On the other hand, there is the accused's interest in knowing reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof which, of course, includes the names of persons the state expects to call as witnesses. This state is committed to the proposition that these conflicting interests are best accommodated and that justice is more nearly achieved when, well in advance of trial, each side has reasonable access to the evidence of the other. See Rule 4.06 supra; Rules 26-37, Miss.R.Civ.P. Box, 437 So.2d at 21.

Of critical import, remedies available for a discovery violation are not self-executing. Middlebrook v. State, 555 So.2d 1009, 1011 (Miss.1990) (citing cases).

(ii)

Applying the law to facts, this Court concludes that Holland's contention is devoid of merit. The State provided Holland with McGarry's autopsy report and disclosed that McGarry would be called to testify. This should have sufficed to place Holland on notice of potential line of questioning by the State. Indeed, in the section of the report entitled “Provisional Autopsy Diagnosis,” McGarry revealed his opinion on the general “time” of injuries ( i.e., “ Recently stretched lacerated abraded vaginal orifice, recently stretched abraded anus [and r] ecent mutilating cuts of the genital region, postmortem ”). Notably, Holland conceded during the hearing on his motion that the autopsy report “does mention” a “time element.” Vol. XII, at 2087-88. It would seem to go without saying that the State might delve into this matter at trial and ask McGarry to expound upon this “time element” in a more specific manner. Albeit Holland was not duty-bound to interview or interrogate McGarry prior to trial, his failure to do so is somewhat surprising-particularly in view of the fact that a pathologist's testimony in a case like this one would be critical to the State's case and detrimental to the defense's. Cf. Whittington v. State, 523 So.2d 966, 976 (Miss.1988) ( “defense was given complete access” prior to trial to Dr. McCormick, the pathologist who performed an autopsy on the victim). In sum, Holland seems to have expected too much from the State. Accord Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) (“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all ... investigatory work on a case.”).

This Court's rejection of Holland's contention is also based, in part, on his failure to take advantage of the trial judge's willingness to provide him with an “unlimited opportunity” to interview McGarry. That is, the judge had complied with the Box guideline by granting Holland a reasonable opportunity to interview the witness and to familiarize himself with the evidence. But the record indicates that Holland declined to interview McGarry about his opinions.FN16 An interview or examination might have lent credence to Holland's claim upon which he based his motion; it might have yielded information supportive of his own case; or it might have led him to conclude that McGarry's testimony would not be prejudicial as originally thought. Holland's failure “flies in the face” of the Box guideline. Holland chose not to exercise this opportunity for reasons not made known and, thus, he rendered himself less informed or uninformed about what he was and is now claiming. This Court therefore holds him to that choice. FN16. Holland merely questioned McGarry for “about ten or fifteen minutes” and for the purpose of merely ascertaining how long the State had known about his opinions. Vol. XII, at 2071-82 & 2097-98.

Finally, the record reveals that Holland waited too long before raising an objection. On the seventh day of trial between 3:27 and 4:10 p.m., the State announced its intention to question McGarry about the “time” and “sequence” when Krystal's injuries occurred: “Judge, we are going to have in evidence from Dr. McGarry as to when, in his opinion as a forensic pathologist, these wounds occurred.” FN17 Holland did not raise an objection until the eighth day of trial at approximately 5:07 p.m. when the State fulfilled its intention and asked McGarry the question. Vol. XII, at 2058-59. Thus, Holland's failure to raise an objection when he first learned of the State's intention is deemed a waiver. FN17. This announcement transpired outside the jury's presence during a debate about the admissibility of some allegedly-irrelevant photographs. The witness testifying at the time was Biloxi Police Officer Robert Burriss. Vol. X, at 1706; Vol. XI, at 1831, 1835 & 1841.

In sum, this Court affirms on this issue. FN18. Holland also raises several related sub-issues and cites “critical occasions” when errors were allegedly committed. Holland's discussion of these issues comprises only several sentences. Appellant's Brief at 36. Holland is procedurally barred from raising these issues because he either cites support for his contention which is different from the support he cited at the trial level or he failed to raise the issue at trial. “A trial judge cannot be put in error on a matter which was not presented to him for decision.” Pruett v. Thigpen, 665 F.Supp. 1254, 1262 (N.D.Miss.1986); see Read v. State, 430 So.2d 832, 838 (Miss.1983); Ponder v. State, 335 So.2d 885, 886 (Miss.1976); Stringer v. State, 279 So.2d 156, 157-58 (Miss.1973).

4. Issue: Whether the State's Delay in Providing Holland with the Rape Kit Violated His Constitutional Rights? In this case, investigators employed a so-called “sexual assault kit” to collect samples of Krystal's body fluids. Holland filed a motion requesting preservation of these samples for future testing by his expert. The trial judge granted Holland's request and ordered the State's expert, Larry Turner, to use no more than half the samples in his testing and to preserve the remaining half for testing by Holland's forensic expert.

Turner complied with the judge's order and conducted various serological tests. The testing revealed the presence of acid phosphate, an enzyme which is a strong indicator of the presence of semen. About a year later, Holland received the samples after his proposed expert, Dr. Dennis Canfield, was adjudged qualified to conduct the testing. Canfield's testing revealed the presence of no acid phosphate-a result which contradicts Turner's test results.

Holland then filed a “Motion to Dismiss” contending that he was prejudiced because his receipt of the samples was untimely-untimely because he did not receive them until almost one year after Turner conducted his testing. This, he says, resulted in a “degradation” of the samples which left him unable to accurately and conclusively test them for the presence of semen. For support, he cites the inconsistent test results reached by Turner and Canfield. Holland conceded that he believed neither the State nor Turner is guilty of any misconduct.

Upon completion of a lengthy hearing, the judge overruled Holland's motion, and Holland appealed. Id. at 2153.

(a) Parties' Contentions

In this appeal, Holland contends: “It is unconscionable that the State's delay in producing th[e samples] result [ sic ] in such a gross prejudice to [his] ability to examine and test this evidence-a prejudice that was all too obvious during the cross-examination of [his] expert [Canfield].” Appellant's Brief at 44-45. Holland adds: “[D]ue process requires that a criminal defendant have access to physical evidence for independent testing.” Id. at 43. The State counters that Holland's contention is unequivocally contrary to dispositive constitutional law- i.e., his due process rights were not violated. Appellee's Brief at 29-32.

(b) Relevant Law and Disposition

The record is simply devoid of any evidence to substantiate Holland's contention that his untimely receipt of the samples was due to the State's employment of “dilatory tactics” which resulted in a prejudicial degradation of potentially-exculpatory evidence. The record reveals the State fully complied with the judge's order to preserve half the samples. Indeed, Holland conceded during the hearing: “ We are not saying there was any misconduct certainly by Mr. Turner or by the State.” Vol. XII, at 2114. And Holland's own expert, Canfield, disputes his degradation theory. Id. at 2130-31. Any delay in receiving the samples was due to (1) Holland's inaction- i.e., his failure to simply go and get the samples from Turner who had properly preserved and stored them for him and (2) his mistaken belief that Turner had used up all the samples. Id. at 2114-16.

Because the record reveals no evidence of bad faith on the part of the State, no constitutional violation has been committed. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468, 481 (1971) (no constitutional violation committed because “there is no showing that the Government intentionally delayed to gain some tactical advantage”); see Knapp, Prosecution's Failure to Preserve Potentially Exculpatory Evidence As Violating Criminal Defendant's Due Process Rights Under Federal Constitution-Supreme Court Cases, 102 L.Ed.2d 1041 (1989).

In sum, this Court affirms on this issue.

5. Issue: Whether a Manslaughter Instruction Was Warranted? The trial judge granted Holland's instruction on the lesser-included offense of murder. Vol. I, at 143. But he refused Holland's three manslaughter instructions. Id. at 153-56; Vol. XIII, at 2310-12. These instructions refer to Miss.Code Ann. § 97-3-47 (1972): “Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.”

(a) Parties' Contentions

Holland contends that his instructions should have been granted because a legally-sufficient evidentiary basis existed. He contends that a “manslaughter instruction was tantamount to resolving the conflict” between his theory that Krystal's death was accidental and the State's theory that Krystal's death could not have been accidental. Appellant's Brief at 37-40.

The State counters that, in view of the evidence, it “cannot agree that a jury could have ever found that Holland did not intend to murder Krystal.” The State contends that the “least crime that [Holland] could have been found guilty of ... is that of murder”-on which the trial judge instructed. Appellee's Brief at 26-29.

(b) Relevant Law

Mississippi law on granting instructions on lesser-included offenses is clear. Trial judges “should be mindful of the disparity in maximum punishments” which may be imposed upon conviction of the principal offense or upon the lesser[-included] offense. Boyd v. State, 557 So.2d 1178, 1181 (Miss.1989). As a general rule, “where the disparity is great this Court has required lesser included instructions to be given.” Id. (citing Griffin v. State, 533 So.2d 444, 447 (Miss.1988)). This general rule is tempered somewhat; trial judges “cannot indiscriminately give a lesser included offense instruction.” Mackbee v. State, 575 So.2d 16, 22 (Miss.1990) (citing Boyd, 557 So.2d at 1181).

Basically, a lesser-included-offense instruction should be granted if, in view of the evidence, a reasonable juror “ ‘could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser included offense.’ ” Mease v. State, 539 So.2d 1324, 1330 (Miss.1989) (quoting Monroe v. State, 515 So.2d 860, 863 (Miss.1987)); see Stringer v. Jackson, 862 F.2d 1108, 1115 (5th Cir.1988) (rejecting Stringer's “new complaint” that the trial judge “erred in failing to instruct on the lesser included offense of non-capital murder or manslaughter,” the Fifth Circuit held that he “introduced no evidence on which the jury rationally could have found him guilty of a lesser offense and acquitted him of the greater offense”); Swanier v. State, 473 So.2d 180, 188 (Miss.1985) (“where the evidence does not warrant a manslaughter instruction, one should not be given”); Fairchild v. State, 459 So.2d 793, 799-802 (Miss.1984) (defendant entitled to “simple” murder instruction, but not to manslaughter instruction). Conversely, “[o]nly where the evidence could only justify a conviction of the principal charge should a lesser[-included] offense instruction be refused.” Mease, 539 So.2d at 1330.

In sum, “a lesser included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Boyd, 557 So.2d at 1182 (citation omitted).

(c) Disposition

Holland contends that the record contains evidence that the injuries Krystal sustained were the consequence of an unfortunate accident. For support, Holland cites statements he had made about an accidental stabbing to his roommate, Douglas, and to detectives during his taped confession. Holland believes that these statements warranted a manslaughter instruction. Holland is mistaken. The statements he had made to Douglas were not even consistent: DOUGLAS: [He] gave me two different stories ... about what happened. Q.: You said it was about five minutes between [his telling you] the first story and ... the second ...? Douglas: Right. .... [According to the first story, h]e said that they [were in the bedroom and] she was playing around with a knife and that she accidentally scratched him across his belly or chest ... with the tip of the knife. .... He said that he went to take the knife away from her and some how it wound up in her chest. .... [According to the second story,] they were wrestling around on the bed, playing around, and she rolled off the bed and fell onto the knife. Vol. IX, at 1543-51; State's Exh. 1, at 4. During his taped confession, Holland related yet another story: “I grabbed [Krystal's] wrist and I was going to take [the knife] away from her ... and I bumped into her chest and she says ‘I'm dead.’ ” State's Exh. 8, at 3.

Clearly, these inconsistent statements do not constitute a “legally sufficient evidentiary predicate for a Section 97-3-[47] manslaughter instruction.” Mease, 539 So.2d at 1324. Conversely, the State successfully repudiated Holland's “accident” theory. Of all the evidence discoverable in the record the most damaging derives from the unrebutted testimony of McGarry, whose autopsy revealed that the stab wound could not have been inflicted under any one of the inconsistent scenarios related by Holland to Douglas and the detectives. McGARRY: [T]he wound produced in Krystal King's body was one [caused] by a violent thrust of the knife against ... her chest with enough violence to indent the front of her chest. This would not happen if she were struck by an accidental movement or casual movement by the knife. Vol. XII, at 2177-80.

The evidence in this case could only justify a conviction of the principal charge (capital murder) or the lesser-included offense (murder) and, therefore, the even lesser-included offense (manslaughter) was properly deleted from the instructions. Id. at 1330. See this Court's opinion in Wetz v. State, 503 So.2d 803 (Miss.1987).FN19

FN19. In Wetz, the defendant had been charged with murdering his seven-month-old daughter. He contended that his daughter's death was the result of an accident, but the jury did not believe him. On appeal, the defendant challenged the trial judge's refusal to grant his instruction on the lesser-included offense of manslaughter. This Court concluded: “Because the defendant was the only eyewitness to the child's death and because he argues strenuously a theory of accident, we have reviewed the record dispassionately and with great care.... Finding no error in the proceedings below, we affirm.” 503 So.2d at 805. Cf. State v. O'Daniel, 62 Haw. 518, 616 P.2d 1383, 1390 (1980) (In this case, the Hawaii Supreme Court rejected the defendant/appellant's contention that the jury should have been instructed on his theory that the victim's death was the result of an accident. The only evidence to support the appellant's theory was his story “regarding an accidental shooting” which he apparently related via telephone to a police dispatcher immediately after the incident. The Court held that such evidence, without more, is “insufficient to raise a jury issue on accidental death since the evidence is speculative.”).

Assume arguendo that Holland's unsubstantiated theory were true. Assume, for example, that Krystal had been waving the knife around in a playful manner; that Holland prudently but unsuccessfully attempted to take the knife from her to avert potential injury; and that Krystal died when she rolled off the bed and onto the knife. This scenario alone would not constitute evidence of the crime of manslaughter; rather, it would constitute evidence of innocence of any crime. Holland wouldn't even be guilty of simple negligence. FN20

FN20. See Phillips v. State, 379 So.2d 318, 320 (Miss.1980) ( “[I]nvoluntary manslaughter by culpable negligence within the meaning of [§ 97-3-47] may be defined as negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this be so clearly evidenced to place it beyond a reasonable doubt.”); Gant v. State, 244 So.2d 18, 19 (Miss.1971) (simple negligence does not reach the degree required under § 97-3-47); see also People v. Minnis, 118 Ill.App.3d 345, 74 Ill.Dec. 179, 189, 455 N.E.2d 209, 219 (4th DCA 1983) (“The gist of involuntary manslaughter is recklessness.... Under the defendant's theory of the case, the death was the result of ... an accident ...; if an accident, she is not guilty of anything. There was no error in refusing the instruction on involuntary manslaughter.”); State v. Miller, No. 81AP-316, slip. op. at 7 (Ohio App. Dec. 31, 1981) (1981 WESTLAW 3714) (The court of appeals held that the manslaughter instruction was properly refused because the defendant's contention that the shooting was an accident “would be a complete defense to the charge of aggravated murder.” The court added: “[I]f defendant's [theory] were believed, the defendant should have been acquitted.”); cf. State v. Pendergrass, 803 P.2d 1261, 1264-65 (Utah App.1990) (In this murder case, the court held that the defendant's claim that the victim's death was the result of an accident did not warrant granting a manslaughter instruction.); State v. Griffith, No. 82AP-105, slip op. at 3 (Ohio App. Feb. 17, 1983) (1983 WESTLAW 3363) (“[T]here is no defense of accident; rather, a failure of proof of guilt of an intentional act.”).

In sum, the record contains no evidence of absence of malice-the principle element of manslaughter. “The evidence, however, only supports a conviction of the greater offense.” Mackbee, 575 So.2d at 23. Restated, Holland failed to compose a convincing argument evincing a sufficient evidentiary basis upon which “a rational or a reasonable juror ‘could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser included offense.’ ” Mease, 539 So.2d at 1330 (quoting Monroe v. State, 515 So.2d 860, 863 (Miss.1987)).

The trial judge did grant an instruction on the lesser-included offense of murder; he could have acted cautiously and granted the manslaughter instruction. In view of the evidence, however, the judge's refusal should be deemed proper. See Boyd, 557 So.2d at 1178 (“For some unknown reason, our competent and able trial judges continue to refuse instructions on lesser included offenses when the evidence warrants them. This in essence allows the jury to hear the defendant's side of the story.... [However,] the trial judge cannot indiscriminately give the instructions.”).

6. Issue: Whether Instruction S-2 Was Granted Erroneously?

Under objection by Holland, the trial judge granted the following instruction: Instruction S-2 The Court instructs the jury that “malice aforethought” as charged in the indictment in this cause and as referred to in other instructions of the Court is a state of mind and does not have to exist in the mind of the slayer for any given length of time, and if the defendant, at the very moment of the fatal blow did so with the deliberate design to take the life of the deceased, Krystal D. King, then it was malice aforethought as if the deliberate design had existed in the mind of the defendant for minutes, hours, days, or weeks or even years. Vol. I, at 133. Holland contends that this instruction should not have been granted because it “rules out manslaughter[ ] and is in hopeless conflict with [a] manslaughter instruction.” Appellant's Brief at 40-43 (quoting Windham v. State, 520 So.2d 123, 126 (Miss.1987)). Because the trial judge properly denied the manslaughter instruction, this Court affirms on the issue.

7. Conviction Affirmed

Based upon the foregoing, this Court holds that the evidence presented was sufficient to convince a rational factfinder of Holland's guilt of capital murder and the underlying crime of rape beyond a reasonable doubt.

C. Sentencing-Phase Issues

1. Issue: Whether the Jury's Premature Decision to Sentence Holland to Death Constituted a Reversible Error? Upon conclusion of the guilt phase, at 2:49 p.m., the judge excused the jury while he and the attorneys discussed some preliminary matters regarding the sentencing phase. Vol. XIV, at 2403-04. At 3:11 p.m., the judge received a note from the jury. The note read: “We, the jury, sentence Gerald James Holland to death.” Holland immediately moved for a mistrial, which the judge overruled. Id. at 2407-09. Instead, the judge summoned the jury to the courtroom and instructed it accordingly:

Ladies and gentlemen, I have received your note and I want to let you know that the guilt stage of the trial is over with. There are certain administrative matters that the Court has to dispose of before we get to the second phase, which is the sentencing phase. At that stage there will be, of course, some testimony and I will instruct you as to the law that will govern the deliberations at that stage. Until we get to that point, I instruct you to refrain from any further deliberations. I can't tell you the exact time, but it will be shortly and the Court will bring you back out here and the Court will begin the sentencing phase, the second stage of the-Jury go to the jury room. Id. at 2411.

The sentencing phase eventually commenced and, after approximately 2 hours and 43 minutes of testimony and argument, the phase concluded. The jury then deliberated for approximately 2 hours and 15 minutes before returning a sentence of death. Id. at 2439-513. Holland now questions the judge's decision to overrule his motion for a mistrial.

(a) The Parties' Contentions

Holland contends that a mistrial should have been granted because the “jurors not only deliberated prior to the presentation of evidence and instructions, they arrived at a verdict, and thereby abandoned any pretense of impartiality going into the sentencing phase.” Appellant's Brief at 5-6 (citing cases). The State counters that: It is clear that the jury deliberated some two hours and ten minutes after receiving the instructions of the court at the end of testimony and arguments in the sentence phase of the trial. Clearly the jury followed the instructions of the Court and made the proper findings prior to imposing the sentence of death. The length of time that the jury took to arrive at its verdict demonstrates that it did not simply walk in the jury room and copy the verdict of death down. That would have only taken minutes. The length of time clearly shows that the jury seriously considered the aggravating and mitigating factors prior to arriving at their verdict.

Appellee's Brief at 9. The State adds that jurors are “presumed to follow the instructions of the court.” Id. (citing cases). Alternatively, the State contends that, assuming that the judge erred, the error at most should be deemed harmless: “It cannot be said, after considering all the evidence presented, that the jury would not have found that the aggravating circumstances did not outweigh the mitigating circumstances and sentenced the defendant to death.” Id. at 10 (citing cases).

(b) Relevant Law and Disposition
i.

The Sixth Amendment, in part, guarantees the criminal defendant the right to a fair trial by an impartial jury. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (applying the sixth-amendment right to states through the fourteenth amendment); Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, 402 (1977) (“sentencing process ... must satisfy the requirements of the Due Process Clause”); Turner v. State, 573 So.2d 657, 670 (Miss.1990) (constitutional guarantees which are applicable to guilt phase are also applicable to sentencing phase); Dycus v. State, 440 So.2d 246, 257-58 (Miss.1983) (same). Jurors must not “discuss a case among themselves until all the evidence has been presented, counsel have made final arguments, and the case has been submitted to them after final instructions by the trial court.” State v. Washington, 182 Conn. 419, 438 A.2d 1144, 1147 (1980) (citing several treatises); accord State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979); State v. Drake, 31 N.C.App. 187, 229 S.E.2d 51 (1976).

In short, “each juror [must] keep an open mind until the case has been submitted to the jury.” United States v. Klee, 494 F.2d 394, 396 (9th Cir.1974). An open mind is critical because: [A]n opinion [prematurely] formed could only be removed, if at all, by evidence. This in effect shift[s] the burden of proof and place[s] upon the defendants the burden of changing by evidence the opinion thus formed. A juror having in discussion not only formed but expressed his view as to the guilt or innocence of the defendant, his inclination thereafter would be to give special attention to such testimony as to his mind strengthened, confirmed or vindicated the views which he had already expressed to his fellow jurors, whereas, had there been no discussion and no expression of tentative opinion, he would not be confronted with embarrassment before his fellow jurors should he change the tentative opinion which he might entertain from hearing evidence. Winebrenner v. United States, 147 F.2d 322, 328 (8th Cir.1945); accord United States v. Aaron Burr, 25 F.Cas. 49, 50 (C.C.Va.1807) (“Such a person may believe that he will be regulated by testimony, but the law suspects him, and certainly not without reason. He will listen with more favor to that testimony which confirms, than to that which would change his opinion; it is not to be expected that he will weigh evidence or argument as fairly as a man whose judgment is not made up in the case.”); Washington, 438 A.2d at 1148 (“Once a juror has expressed an opinion ... the die may well have been cast.”).

Admittedly, “not every incident of juror misconduct requires a new trial.” Klee, 494 F.2d at 396. A new trial may be unwarranted if the misconduct is proved beyond a reasonable doubt to be harmless. Washington, 438 A.2d at 1149 (“Inasmuch as the error was one of constitutional dimension, it is incumbent upon the state to show that it is harmless beyond a reasonable doubt.”) (citing Aillon v. State, 168 Conn. 541, 363 A.2d 49 (1975)). Meeting this burden has generally been a formidable task because, “[a]lmost without exception, where the issue has been properly raised, every court has held that ... [mere] discuss[ion by jurors of] the case before its submission to them constitutes reversible error.” Id. at 1148 (citing numerous cases from various jurisdictions); see, e.g., State v. Gill, 273 S.C. 190, 255 S.E.2d 455, 457 (1979) (an oft-cited, capital-murder case which the South Carolina Supreme Court reversed because jurors prematurely commenced deliberations).

ii.

Applying the law to the facts, this Court concludes that the jury's premature deliberations prejudiced Holland's right to a fair hearing during the sentencing phase. A different conclusion may have been reached had the trial judge questioned the jurors in order to determine whether each of them could have remained impartial. See, e.g., United States v. Clapps, 732 F.2d 1148 (3d Cir.1984) (mistrial unwarranted because the trial judge removed two jurors who prematurely deliberated and questioned each of the remaining jurors and determined each was not influenced); United States v. Anello, 765 F.2d 253 (1st Cir.1985) (same); People v. Castillo, 144 A.D.2d 376, 534 N.Y.S.2d 188 (2d Dep't 1988) (same); see also Jones, 461 So.2d at 692 (“trial court is certainly free to employ a second jury if it wishes”).

In some jurisdictions, trial judges are required or advised to conduct a thorough inquiry when a juror or jurors prematurely deliberated or formed an opinion. In the case sub judice, the judge merely instructed the jurors to “refrain from further deliberations.” This instruction was insufficient to insure that Holland's right to a fair hearing was not prejudiced. The case must be remanded for re-sentencing by an impartial jury.

2. Remaining Issues
In view of this Court's holding that this case must be remanded for re-sentencing, the remaining issues will not be reached. Before concluding, this Court feels compelled to place the State on notice regarding a matter relating to the evidentiary sufficiency of the aggravating circumstance-“previously convicted of ... a felony involving the use or threat of violence to the person.” See MISS.CODE ANN. § 99-19-105(5)(b) (1990 Supp.).

To prove that Holland had previously committed a felony involving the use or threat of violence, the State introduced a county court “JUDGMENT” in Texas involving a 1974 criminal conviction for raping a child. This may not constitute sufficient evidence of involvement of violence. This Court recognizes that, generally, rape is a crime inhering the element of violence. However, this Court also recognizes that consensual, non-violent intercourse with an individual under 18 years of age may constitute a violation of this and other states' statutory-rape statute. See, e.g., id. § 97-3-67 (1990 Supp.); see also State v. Gill, 273 S.C. 190, 255 S.E.2d 455, 457 (1979).

Although a trial court is not required to examine the underlying legal validity of the prior conviction, Nixon v. State, 533 So.2d 1078, 1099 (Miss.1987); Phillips v. State, 421 So.2d 476, 481 (Miss.1982), determining whether a defendant's prior conviction was a felony involving the use or threat of violence requires that this state's statutes be construed and applied. Where as here the conviction occurred in a sister state, this Court does not look to how that state characterizes the question of whether the crime was one of violence, rather, the analysis must be done under Mississippi law. For a conviction to qualify as predicate for an aggravating circumstance under this state's statutes, the conviction from the sister state must have been acquired under a statute which has as an element the use or threat of violence against the person or, by necessity, must involve conduct that is inherently violent or presents a serious potential risk of physical violence to another. United States v. Sherbondy, 865 F.2d 996, 1010-11 (9th Cir.1988).

The State has this burden of proving beyond a reasonable doubt the existence of each aggravating circumstance. Nixon, 533 So.2d at 1099. On retrial, the trial court should examine the evidentiary sufficiency of this aggravating circumstance.

The Court also notes that the aggravating circumstance of “especially heinous, atrocious or cruel” offense was submitted for jury consideration. The limiting instruction proposed in Coleman v. State, 378 So.2d 640 (Miss.1979), to channel the jury's discretion in considering this aggravating circumstance, was also granted. The limiting instruction should again be granted if the same aggravating circumstance is submitted. Berry v. State, 575 So.2d 1 (Miss.1990); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

III. CONCLUSION The judgment of the lower court is affirmed on the guilt phase and is reversed and remanded for a new trial on the sentencing phase, consistent with this opinion. GUILT PHASE: CONVICTION OF CAPITAL MURDER AFFIRMED.

ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur. SENTENCING PHASE: REVERSED AND REMANDED. ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur. HAWKINS, P.J., dissents with separate written opinion.

Holland v. State, 705 So.2d 307 (Miss. 1997). (Direct Appeal After Remand)

Defendant was convicted in the Circuit Court, Harrison County, Kosta N. Vlahos, J., of capital murder and sentenced to death, and he appealed. The Supreme Court, 587 So.2d 848, affirmed conviction but vacated sentence and remanded for resentencing. Resentencing jury in the Circuit Court, Harrison County, Kosta N. Vlahos, again imposed death penalty. Defendant appealed. The Supreme Court, Smith, J., held that: (1) sentencing scheme permitting imposition of death penalty for certain felony murders without a finding of intent to kill, but not for simple premeditated murder committed in atrocious manner, is not unconstitutional (2) defendant was barred by res judicata from relitigating guilty verdict at resentencing and was collaterally estopped from attacking his guilt; (3) introduction of conviction at resentencing was not error; (4) state's failure to turn over to defendant the victim's criminal history with respect to use of knives was not Brady violation; (5) defendant was barred by res judicata from attempting to suppress taped confession; (6) defendant failed to demonstrate substantial need for neurological examination to determine whether he suffered from brain damage; (7) denial of motion for change in venue was not abuse of discretion; (8) refusal to permit defendant to ask prospective jurors hypothetical question concerning their treatment of possible mitigating factor was not abuse of discretion; (9) refusal to quash jury panel or declare mistrial, based on prospective juror's statement that he agreed with first sentence that defendant received, was not error; (10) permitting prosecutor to exercise peremptory challenges on two potential jurors based on their views of death penalty was not error; (11) testimony by forensic pathologist as to suffering endured by victim was not rank speculation and was admissible; (12) prosecutor's closing argument did not improperly comment on defendant's decision not to testify; (13) improper comment of prosecutor that present case was one of those rare instances in which he had sought death penalty was not reversible error; (14) admission of photographs of victim at resentencing was proper; (15) statement of trial court concerning where victim's family usually sat did not constitute improper participation by court on state's behalf; (16) instruction that jury could not be influenced or swayed by bias, sympathy, or prejudice did not totally shut off consideration of sympathy and therefore was proper; (17) defendant was not entitled to proposed mercy instructions; (18) evidence supported instruction on aggravator of committing murder in order to avoid arrest; and (19) death sentence was not disproportionate. Affirmed. Dan Lee, C.J., concurred specially and filed an opinion in which James L. Roberts, Jr. and Smith, JJ., joined. Prather, P.J., filed a dissenting opinion in which Sullivan, P.J., and Banks, J., joined.

SMITH, Justice, for the Court:

¶ 1. Gerald James Holland was convicted in 1987 in the Circuit Court of Harrison County of the capital murder of Krystal D. King, committed during the underlying crime of rape. Holland was sentenced to death. On appeal, this court affirmed the conviction of capital murder, but vacated the death penalty, and remanded the case for resentencing. Holland v. State, 587 So.2d 848 (Miss.1991). On April 3, 1993, a resentencing jury for the second time imposed the death penalty. This appeal consolidates Holland's direct appeal of his resentencing and our mandatory review of the death sentence. Holland assigned the thirty-one alleged errors on appeal. After thorough review, we find no error and accordingly affirm Holland's sentence of death.

THE FACTS

¶ 2. The evidence presented at the original trial was sufficiently summarized in our prior opinion. Holland I, 587 So.2d at 851. Therefore only limited additional facts are required here. Briefly, the 15-year-old victim was raped, beaten, and stabbed. The cause of death was asphyxiation as a ligature was placed around her neck and clothing was stuffed down her throat. Holland forced a friend, who had not been present during the murder, to accompany him to a remote area for burial of the mutilated body. This court held that the evidence presented was sufficient to convince a rational fact finder of Holland's guilt of capital murder and the underlying crime of rape beyond a reasonable doubt, and affirmed Holland's guilt.

¶ 3. The first jury, however, prematurely considered the death sentence before the mitigating and aggravating evidence was presented and before the instructions of the law were given by the trial court. This Court held that the defendant's Sixth Amendment right to a fair and impartial jury had been violated, vacated the death sentence and remanded for a new sentencing hearing. Id. at 872. Holland was granted a new sentencing hearing and again received the death penalty, which he is now appealing. He asserts that the trial court impermissibly restricted his mitigation evidence at rehearing. Therefore, the issue presented here concerns the scope of evidence admissible in mitigation after remand for resentencing before a new sentencing jury.

¶ 4. Holland filed a bevy of motions which were denied by the trial judge with certain exceptions. The trial judge reserved evidentiary rulings on each piece of evidence until presented at the trial. As to aggravating factors, the trial judge submitted by instruction the following aggravators: (1) that the capital offense was committed while the defendant was engaged in the act of commission of the crime of rape, (2) that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest, and (3) that the capital offense was especially heinous, atrocious, or cruel. Additionally, the judge submitted to the jury the determination of whether Holland actually killed Krystal D. King, or attempted to kill her, or intended that the killing take place, or contemplated that lethal force would be employed in accordance with the capital sentencing procedure set forth in Miss.Code Ann. § 99-19-101(7)(a-d) (1994 rev.); see Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376-77, 73 L.Ed.2d 1140 (1982). The resentencing jury imposed the death sentence, finding the existence of all three of the aggravating factors, as well as finding that Holland actually killed Krystal King, intended to kill and contemplated that lethal force would be employed. From his sentence of death, Holland appeals.

DISCUSSION OF LAW

I. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION VIII, WHICH SOUGHT A DECLARATION THAT MISSISSIPPI'S CAPITAL PUNISHMENT STATUTE IS UNCONSTITUTIONAL, INTER ALIA, BECAUSE IT AUTHORIZES IMPOSITION OF THE DEATH PENALTY FOR SIMPLE FELONY MURDER BUT NOT PREMEDITATED MURDER?

¶ 5. Holland argues that Miss.Code Ann. § 99-19-101, Mississippi's capital murder statute, is unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. The ground assigned in this challenge is that the statute permits the death penalty for certain felony murders without a finding of intent to kill, but does not include premeditated murder. This error has been asserted before this Court in Gray v. State, 351 So.2d 1342, 1344 (Miss.1977), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980), reh'g denied, 448 U.S. 912, 101 S.Ct. 30, 65 L.Ed.2d 1174 (1980) and Bell v. Watkins, 381 So.2d 118, 124 (Miss.1980), but was denied without analysis. Therefore, this Court addresses the issue of constitutionality.

¶ 6. Gray's Eighth Amendment claim addressed the imposition of the death penalty. Under Gregg v. Georgia, 428 U.S. 153, 187-88, 96 S.Ct. 2909, 2931-32, 49 L.Ed.2d 859 (1976), reh'g denied, 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976), a death sentence must not be excessive in relation to the crime for which it is imposed, and death sentences must be imposed with reasonable consistency. Holland contends that Mississippi's capital murder scheme imposing death on an unpremeditated murder, but not a premeditated murder committed in an atrocious manner, implicates the Eighth Amendment concerning fair trial guarantees.

¶ 7. Holland's argument overlooks the fact that the our statute restricts, limits and narrows the death penalty to certain classes of cases. One class consists of those cases in which two crimes have been committed, i.e., murder and another specified type felony. Another class concerns a murder for compensation, or “hire.” See Miss.Code Ann. § 97-3-19(2)(a) and (d). Another class of crimes address specified classes of people considered particularly vulnerable, i.e., children, law enforcement personnel and public elected officials, etc. See Miss.Code Ann. § 97-3-19(2)(a), (e), (g).

¶ 8. Miss.Code Ann. § 99-19-101(7)(a-d) further restricts the imposition of death within the class to those persons the sentencing jury finds (1) actually killed; (2) attempted to kill; (3) intended to kill; or (4) contemplated lethal force be used.

¶ 9. The constitutional challenge asserted here does not offend the Eighth Amendment of the United States Constitution, and this conclusion has been long ago held by the United States Court of Appeals for the Fifth Circuit in Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982), reh'g denied, 685 F.2d 139 (5th Cir.1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815, reh'g denied, 462 U.S. 1124, 103 S.Ct. 3099, 77 L.Ed.2d 1357 (1983).

¶ 10. Gray also addressed the due process or equal protection challenge of the Fourteenth Amendment and upheld Mississippi's legislative classifications of criminal activity thereunder stating: The basis of Gray's claim under both equal protection and due process is that there is no rational basis for imposing the death penalty on people who commit murder during the course of a felony but not imposing it on people who commit especially atrocious simple murder. However, Mississippi could have rationally decided that felony murders pose a problem different from atrocious simple murders and could have sought to cure the felony murder problem first. Alternatively, the legislature could have decided that the death penalty would be more effective in deterring felony murders since an experienced felon is more likely to assess the consequences of his acts. Conversely, it could have rationally determined that the death penalty might not effectively deter atrocious simple murders since such people are likely as a group to act on passion or impulse and thus be unmindful of the consequences of their crime. In short, the legislature could have rationally decided that the one class of murders either presented a different problem from the other or that the death penalty would be more effective deterrent [sic] to felony murders than atrocious simple murders. Gray, 677 F.2d at 1104.

¶ 11. Considering all these factors, this Court holds that Holland's constitutional challenge to Mississippi's capital murder statutory scheme is without merit. II. DID THE TRIAL COURT ERR IN RULING THAT HOLLAND COULD NOT DENY, CHALLENGE, CONTEST, REBUT, EXPLAIN, OR DEFEND: A. AGAINST THE CONTENTIONS THAT HOLLAND HAD RAPED THE VICTIM; B. AGAINST THE EVIDENCE ADDUCED BY THE PROSECUTION IN SUPPORT OF THE RAPE AGGRAVATING CIRCUMSTANCE; C. AGAINST THE CONTENTION THAT HOLLAND HAD ACTUALLY KILLED, ATTEMPTED TO KILL, INTENDED TO KILL, AND CONTEMPLATED LETHAL FORCE WOULD BE EMPLOYED AGAINST THE VICTIM ( ENMUND FACTORS)?

III. DID THE TRIAL COURT ERR IN RULING THAT: A. HOLLAND COULD NOT ARGUE AND SEEK TO ESTABLISH A BASIS FOR RESIDUAL DOUBT REGARDING HIS GUILT FOR THE OFFENSE; B. A DIRECTED VERDICT ON THE RAPE AGGRAVATING CIRCUMSTANCE SHOULD BE GRANTED; C. THE PROSECUTION COULD INTRODUCE ANY AND ALL EVIDENCE ADMITTED AT THE GUILT-INNOCENCE PHASE OF THE PREVIOUS TRIAL, INCLUDING EVIDENCE TENDING TO SHOW THE CIRCUMSTANCES OF THE OFFENSE AND THAT HOLLAND MURDERED AND/OR RAPED THE VICTIM, BUT THAT HOLLAND COULD NOT INTRODUCE EVIDENCE ADMITTED AT THE GUILT-INNOCENCE PHASE OF THE PREVIOUS TRIAL TENDING TO SHOW THE CIRCUMSTANCES OF THE OFFENSE AND THAT HOLLAND DID NOT MURDER AND/OR RAPE THE VICTIM?

IV. IN DENYING HOLLAND'S MOTION TO PLACE THE COURT AND STATE ON NOTICE OF THE DEFENSE CALLING AS A WITNESS, DENNIS CANFIELD, AND PLANNING TO READ HIS PRETRIAL TRANSCRIPT LOCATED AT TR. 2232-64 OF THE FIRST TRIAL, WHICH TOOK PLACE IN NOVEMBER AND DECEMBER OF 1987?

V. IN RULING THAT DOCTOR LEROY RIDDICK, A HIGHLY QUALIFIED FORENSIC PATHOLOGIST, COULD NOT, EITHER AT THE HEARING ON HOLLAND'S MOTION TO ENJOIN DOCTOR MCGARRY'S TESTIMONY, OR AT HOLLAND'S CAPITAL RESENTENCING TRIAL, TESTIFY THAT THE FORENSIC EVIDENCE DID NOT SUPPORT A FINDING OF RAPE AND THAT DOCTOR MCGARRY'S TESTIMONY REGARDING THE ALLEGED RAPE WAS NOT CREDIBLE?

VI. IN DENYING HOLLAND FUNDS TO RETAIN THE SERVICES OF AN EXPERT IN THE FIELD OF SEROLOGY?

VII. IN DENYING HOLLAND'S MOTION IN LIMINE TO PRECLUDE THE PROSECUTION AT HOLLAND'S RE-SENTENCING HEARING FROM INTRODUCING ANY EVIDENCE OR WITNESS TESTIMONY THAT IS NOT RELEVANT TO STATUTORY AGGRAVATING CIRCUMSTANCES?

VIII. IN DENYING HOLLAND'S MOTION FOR A CRIMINAL HISTORY OF THE VICTIM?

¶ 12. The crucial question presented in issues two through eight is whether Holland is barred from reintroducing evidence to dispute guilt at the sentencing phase, to rebut aggravators offered by the prosecution, to dispute the Enmund factors which the prosecution must prove for imposition of the death penalty, or to support an argument on residual doubt.

¶ 13. In a pre-trial motion, Holland asked the Court to refrain from “directing a verdict in connection with the underlying crime of rape.” At this motion hearing, the trial judge ruled that there would not be a directed verdict on the aggravating circumstance of rape. However, the trial judge made it clear that his ruling would not preclude the State in “revisiting” the “totality of the [defendant's] acts” during the commission of the crime to show the killing and the rape “so that a rational sentencing body can make that decision of death or life imprisonment.” The trial court's ruling applied to the testimony of witnesses and the introduction of the judgment of guilt of capital murder. But, the trial court held that he would not allow “relitigation” of the guilty verdict, which was res judicata.

¶ 14. Holland's counsel objected to this procedure, arguing that any State's evidence introduced must address one of the aggravating circumstances. See Leatherwood v. State, 435 So.2d 645, 655 (Miss.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984). Furthermore, Holland argued that he should be allowed to rebut any evidence of the State, including the rape charge. Holland claims that the rebuttal of the testimony relating to the rape charge would allow him the benefit of any residual doubt that the jury might have concerning the rape. These rulings of the trial judge were in response to motions of the defense, and were not sua sponte actions of the trial court.

¶ 15. At trial, the State presented witnesses who described the murder and rape of Krystal King, including the officers to whom Holland made confessions. Holland cross-examined all of these witnesses. The defense objected to the testimony of the State's witness, Dr. Paul McGarry, a pathologist, on the ground that he would testify to matters outside his area of expertise and engage in speculation, when he described the injuries to Krystal's vagina and rectum. The trial judge overruled the objection, accepting McGarry's testimony as an expert within his field of knowledge. Dr. McGarry testified as to the forceful, jagged cuts around the victim's genital area, as well as other injuries, and to the source of some of those injuries, which he stated as being a human penis. Holland attempted to rebut Dr. McGarry's testimony with the proffered testimony of Dr. Leroy Riddick, a forensic pathologist, who disputed the State's contention about the source of the injuries and the presence of seminal fluid in Krystal, as well as the assertion that the victim experienced a long period of pain and suffering. Dr. Riddick also testified regarding the absence of seminal fluid in the victim's body. Dr. Riddick's testimony was not allowed into evidence by the trial court, although he was allowed to proffer his testimony.

¶ 16. Here, we are asked to determine whether Holland is entitled to relitigate the question of guilt at the sentencing phase. The State must prove the existence of aggravating factors beyond a reasonable doubt. See Miss.Code Ann. § 99-19-103 (1994 rev.); see also Holland v. State, 587 So.2d 848, 874 (Miss.1991). In addition, the State must prove one of four factors FN1 which show that the defendant generally intended to kill his victim. However, Mississippi law is silent concerning the ability of a defendant to introduce rebuttal evidence on those factors before a resentencing jury, in essence relitigating the guilt phase once more. FN1. These findings are as follows: “(1) The defendant actually killed; (2) The defendant attempted to kill; (3) The defendant intended that a killing take place; (4) The defendant contemplated that lethal force would be employed.” Pinkton v. State, 481 So.2d 306, 309 (Miss.1985). These findings arise from statements concerning accomplice liability for felony murder in Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376-77, 73 L.Ed.2d 1140 (1982) and are found in Miss.Code Ann. § 99-19-101(7) (1994 rev.).

¶ 17. Relying on United States Supreme Court precedent, this Court has held that the capital sentencer may not be prohibited from considering “any aspect of the defendant's character or any circumstance of the offense.” Cole v. State, 525 So.2d 365, 371 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g denied, 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989). However, this Court also stated that the trial court could exclude as irrelevant evidence which does not apply to the defendant or to the circumstances of the crime. Cole, 525 So.2d at 371. Our caselaw holds that in an appeal from a resentencing trial for capital murder, the issue of guilt is res judicata and cannot be relitigated. Irving v. State, 441 So.2d 846, 851-52 (Miss.1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985), reh'g denied, 471 U.S. 1095, 105 S.Ct. 2170, 85 L.Ed.2d 527 (1985), abrogated on other grounds by Willie v. State, 585 So.2d 660 (Miss.1991); see also Jordan v. State, 518 So.2d 1186, 1189 (Miss.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988).

¶ 18. Holland urges this Court to read Irving more narrowly. Holland argues that Irving merely states that a defendant at a capital sentencing retrial is not entitled to an instruction listing the elements of an aggravating circumstance that was the underlying felony found at his guilt-innocence phase.

¶ 19. Holland's statement of Irving is accurate. However, the Irving Court reaches its decision by stating the following: In that the conviction by the first jury was not disturbed on appeal, the present sentencing jury was prohibited by the doctrine of res judicata from relitigating the issue of guilty (sic). Rather, the second jury's function was to accept the first jury's finding that Irving was guilty of felony-murder involving robbery and then to determine sentence. Irving, 441 So.2d at 849.

¶ 20. Holland argues that the lower court erred in prohibiting him from using evidence from the guilt phase at the sentencing phase of his trial. The defendant is limited to introducing evidence relevant to his sentence. Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976), superseded by statute on unrelated grounds as recognized by Gray v. State, 351 So.2d 1342, 1349 (Miss.1977).

¶ 21. Holland argues that our caselaw requires resentencing proceedings to relitigate the question of guilt, citing West v. State, 519 So.2d 418, 425 (Miss.1988).FN2 Holland's reliance on West is misplaced, as this Court reversed the entire conviction in West, not merely the sentencing phase alone. West, 519 So.2d at 424-25.FN3 See also, Williams v. State, 684 So.2d 1179 (Miss.1996), cert. denied, 520 U.S. 1145, 117 S.Ct. 1317, 137 L.Ed.2d 479 (1997). The Williams court stated, “The only issue was the manner of punishment that Williams should receive. Mississippi case law states that in an appeal from a resentencing trial for capital murder, the issue of guilt is res judicata.” Williams, 684 So.2d at 1188, citing Irving, 441 So.2d at 851-52. FN2. Holland's counsel states that West v. State stands for the proposition that new trials erase all prior proceedings, and “[i]ts verdict is as though it had never been.” West, 519 So.2d at 425; see also Hall v. State, 539 So.2d 1338, 1348 (Miss.1989) (holding “[w]hen we reverse and remand for a new trial, both sides begin anew, no balls, no strikes.”) This Court has not applied this logic to re-sentencing, and if this Court were to do so, a capital defendant would receive two trials, one for guilt, and another equally involved trial for sentencing.

Other courts take a different view. See, e.g., Green v. Zant, 738 F.2d 1529, 1542 (11th Cir.1984), cert. denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984), reh'g denied, 469 U.S. 1143, 105 S.Ct. 827, 83 L.Ed.2d 819 (1985) (stating that “[a] defendant does not arrive at the penalty phase of a capital proceeding with a clean slate, and there is no point in pretending otherwise.”) FN3. Holland's eighth subsidiary argument asserts that this Court has contradicted itself on the scope of evidence admissible at the sentencing phase. On one hand, Holland notes that Hill v. State, 432 So.2d 427, 441 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983) allows the presentation of all guilt phase evidence at sentencing. On the other hand, Holland also notes that Balfour v. State, 598 So.2d 731, 747-48 (Miss.1992) limited the State's proof to evidence only impacting on the aggravating circumstances. There is no inherent contradiction. Balfour controls, applying Miss.Code Ann. § 99-19-101(1), through limiting the presentation of evidence to aggravating circumstances. However, this Court has also noted that the State must present “credible evidence” to support Enmund factors at sentencing, namely, that the defendant killed. Carr v. State, 655 So.2d 824, 854 (Miss.1995), cert. denied, 516 U.S. 1076, 116 S.Ct. 782, 133 L.Ed.2d 733 (1996). Therefore, the State must introduce evidence of guilt at sentencing, or face a certain directed verdict on factors. Although the question of whether a defendant is entitled to present rebuttal evidence on the Enmund factors is still open, the State not only can, but must present evidence at sentencing for both its aggravators and for guilt, so far as the Enmund factors require its proof.

¶ 22. Other states' caselaw splits as to whether the defendant is permitted to introduce evidence of innocence at sentencing, whether on collateral estoppel or any other ground. California, among other states, prohibits the introduction of this evidence. People v. Haskett, 30 Cal.3d 841, 180 Cal.Rptr. 640, 656, 640 P.2d 776, 792 (1982) (stating “he [defendant] had no right to attack ‘the legality of the prior adjudication....’ We found ‘self-evident’ the proposition that attempts to relitigate a prior finding of guilt are prohibited.”), cert. denied, 502 U.S. 822, 112 S.Ct. 83, 116 L.Ed.2d 56 (1991); see Kuenzel v. State, 577 So.2d 474, 477 (Ala.Crim.App.1990) (approving statutory procedure allowing jury to consider aggravator “proved beyond a reasonable doubt” at sentencing, if used at trial to reach conviction), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991); State v. Biegenwald, 106 N.J. 13, 524 A.2d 130, 160 (1987) (stating “[r]etrial of issues relevant only to guilt is not permitted.”); Stockton v. Commonwealth, 241 Va. 192, 402 S.E.2d 196, 207 (1991) (holding defendant not allowed to present evidence of innocence in penalty phase), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991).

¶ 23. On the other hand, other states disapprove of any prohibition of evidence of innocence at sentencing. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369, 371 (1983), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988); State v. Stewart, 288 S.C. 232, 341 S.E.2d 789, 790 (1986). The Georgia Supreme Court has stated that such information bearing on innocence at sentencing is particularly valuable when a re-sentencing occurs and a new jury is empaneled which did not hear the evidence in the guilt phase. Romine v. State, 256 Ga. 521, 350 S.E.2d 446, 453 (1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 517 (1987), reh'g denied, 484 U.S. 1048, 108 S.Ct. 788, 98 L.Ed.2d 873 (1988).

¶ 24. Federal caselaw also splits on this subject. The United States Supreme Court generally permits a defendant to introduce any relevant mitigating evidence available. Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982) (allowing use of troubled childhood as mitigating evidence at sentencing), cert. denied, 470 U.S. 1051, 105 S.Ct. 1750, 84 L.Ed.2d 814 (1985); Roberts v. Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637 (1977) (requiring certain mitigating evidence to be introduced).

¶ 25. The Supreme Court has also stated that a defendant must be allowed to rebut or defend against evidence introduced against him generally. Skipper v. South Carolina, 476 U.S. 1, 5 n. 1, 106 S.Ct. 1669, 1671 n. 1, 90 L.Ed.2d 1 (1986) (permitting defendant to submit rebuttal evidence of behavior in prison to counter State's charges of defendant as bad prisoner). It should be noted that in Eddings, Roberts, Simmons, and Skipper, the evidence submitted was clearly offered as mitigation evidence, whereas Holland boldly proclaims his purpose is to attack the prior finding and adjudication of guilt. Such attempt to cast doubt on Holland's prior finding of guilt, which was affirmed on appeal by this Court, is not at all, in the strictest sense, a mitigating factor.

¶ 26. In its landmark opinion permitting the death penalty, the Supreme Court gave a list of relevant mitigating factors, but the direct question of innocence or guilt was not among them. Gregg v. Georgia, 428 U.S. 153, 193 n. 44, 96 S.Ct. 2909, 2935, n. 44, 49 L.Ed.2d 859 (1976).FN4 Furthermore, the Supreme Court stated that mandatory presumptions violate the Fourteenth Amendment by relieving the State of the burden of proving the elements of the aggravators. Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993). FN4. The Supreme Court did state that where a “defendant was an accomplice in a murder committed by another person and his participation ... was relatively minor,” the defendant could introduce that evidence as a mitigating factor. Gregg, 428 U.S. at 194 n. 44, 96 S.Ct. at 2935 n. 44.

¶ 27. The Supreme Court has stated, “[T]his Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation.” Franklin v. Lynaugh, 487 U.S. 164, 172-73, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155 (1988), reh'g denied, 487 U.S. 1263, 109 S.Ct. 25, 101 L.Ed.2d 976 (1988). The Court also held that doubts on identity, even residual ones, do not relate to mitigating evidence concerning the character, record, or circumstances of the offense. Franklin, 487 U.S. at 174, 108 S.Ct. at 2327-28. The Court also approved of the overlap between a finding of guilt in an underlying felony supporting a capital offense and the reuse of that felony to prove an aggravator in the sentencing phase. Lowenfield v. Phelps, 484 U.S. 231, 241-46, 108 S.Ct. 546, 553-55, 98 L.Ed.2d 568 (1988), reh'g denied, 485 U.S. 944, 108 S.Ct. 1126, 99 L.Ed.2d 286 (1988). This Court has denied residual doubt as a mitigating factor. Minnick v. State, 551 So.2d 77 (Miss.1988), rev'd on other grounds, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), overruled on other grounds by Willie v. State, 585 So.2d 660 (Miss.1991).

¶ 28. As to the principle of collateral estoppel in criminal cases, the Supreme Court has thus far only allowed its use in acquittals, where the principle was applied in conjunction with double jeopardy to bar reprosecutions for the same offense. Ashe v. Swenson, 397 U.S. 436, 444-45, 90 S.Ct. 1189, 1194-95, 25 L.Ed.2d 469 (1970). The United States Supreme Court has stated that the Double Jeopardy Clause applies to separate trials, but not guilt and punishment phases of the same trial. Schiro v. Farley, 510 U.S. 222, 231, 114 S.Ct. 783, 790, 127 L.Ed.2d 47(1994), reh'g denied, 510 U.S. 1215, 114 S.Ct. 1341, 127 L.Ed.2d 688 (1994).FN5 However, the Schiro Court was not called upon to consider collateral estoppel against the defendant, but only the prosecution. Schiro, 510 U.S. at 231, 114 S.Ct. at 790. The Supreme Court has yet to answer whether collateral estoppel applies to bar the defense from relitigating an issue, as opposed to the government.FN6

FN5. The Schiro Court refused to consider the applicability of collateral estoppel, in that the Court found Schiro unable to prove the elements of collateral estoppel in that case. Schiro, 510 U.S. at 231, 114 S.Ct. at 790. FN6. The Schiro Court noted that under its decision, a defendant would be forced to relitigate, in habitual offender prosecutions, convictions for which he had previously been tried. Schiro, 510 U.S. at 230, 114 S.Ct. at 789. Since the Court went no further, it is still unclear what the scope of relitigation would cover in regards to the preclusive effect of a conviction on aggravating factors at sentencing.

¶ 29. At least one lower federal court requires the sentencing jury to hear evidence supporting innocence. Chaney v. Brown, 730 F.2d 1334, 1351-52 (10th Cir.1984), cert. denied, 469 U.S. 1090, 105 S.Ct. 601, 83 L.Ed.2d 710 (1984). Lower federal courts split over the general issue of collateral estoppel barring relitigation of findings of guilt by a jury. Some federal courts prohibit such evidence. United States v. Pelullo, 14 F.3d 881, 896 (3rd Cir.1994), rev'd on other grounds, 105 F.3d 117 (3rd Cir.1997); United States v. Harnage, 976 F.2d 633, 635 (11th Cir.1992) (holding collateral estoppel should not be applied to criminal defendant); Flittie v. Solem, 775 F.2d 933, 940 (8th Cir.1985), cert. denied, 475 U.S. 1025, 106 S.Ct. 1223, 89 L.Ed.2d 333 (1986).

¶ 30. However, other courts have permitted evidence of findings of guilt to collaterally estop the defendant in later proceedings. Hernandez-Uribe v. United States, 515 F.2d 20, 21-22 (8th Cir.1975), cert. denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647 (1976); United States v. Colacurcio, 514 F.2d 1, 6 (9th Cir.1975). We adopt the logic of Hernandez-Uribe We hold that because of the finding of guilt by the prior jury, Holland is barred by res judicata from relitigating the prior jury verdict of guilt and is collaterally estopped in these proceedings from attacking his guilt.

¶ 31. Holland argues that our caselaw requires the trial court to permit his presentation of evidence on whimsical or residual doubt. Our caselaw has prohibited counsel from doing more than asserting whimsical doubt at closing argument. This Court has rejected a defendant's submission of a whimsical doubt jury instruction. Hansen v. State, 592 So.2d 114, 150-51 (Miss.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992), reh'g denied, 505 U.S. 1231, 112 S.Ct. 3060, 120 L.Ed.2d 924 (1992). Other states are split on the subject. Florida expressly prohibits the submission of evidence on whimsical doubt. King v. State, 514 So.2d 354, 358 (Fla.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988); see also Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297, 308 (1989); People v. Fields, 135 Ill.2d 18, 142 Ill.Dec. 200, 222, 552 N.E.2d 791, 813 (1990), cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990), reh'g denied, 498 U.S. 994, 111 S.Ct. 547, 112 L.Ed.2d 555 (1990). Other states allow argument on residual doubt. See, e.g., Moon v. State, 258 Ga. 748, 375 S.E.2d 442, 452 (1988), cert. denied, 499 U.S. 982, 111 S.Ct. 1638, 113 L.Ed.2d 733 (1991), reh'g denied, 501 U.S. 1224, 111 S.Ct. 2841, 115 L.Ed.2d 1010 (1991); State v. Tyler, 50 Ohio St.3d 24, 553 N.E.2d 576, 583 (1990), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 334 (1990).

¶ 32. The United States Supreme Court states that defendants have no constitutional right to reconsideration of residual doubt on sentencing. Franklin, 487 U.S. at 174, 108 S.Ct. at 2327-28. The Franklin Court noted such a right would be inconsistent with penalty-only trials, such as resentencings, which are not themselves violative of the Eighth Amendment. Id. at 173 n. 6, 108 S.Ct. at 2327 n. 6.

¶ 33. Most federal courts generally follow Franklin. Evans v. Thompson, 881 F.2d 117, 120 (4th Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990); Coleman v. Saffle, 869 F.2d 1377, 1393 (10th Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990), reh'g denied, 496 U.S. 913, 110 S.Ct. 2606, 110 L.Ed.2d 285 (1990). However, the Fifth Circuit has implied such evidence may be relevant at sentencing. Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir.1985).

¶ 34. Holland argues that the trial court's refusal to allow him to relitigate these issues of guilt denied him the right to argue whimsical or residual doubt as to the validity of the conviction. Holland relies on Hansen, 592 So.2d at 150-51 and Minnick, 551 So.2d 77, for the proposition that he was entitled to, but was denied the right to argue whimsical doubt to the jury.

¶ 35. The Supreme Court in Franklin, supra, has held that arguing that residual doubt was not a mitigating factor as it did not go to the issue of a defendant's character, record, or circumstances of the offense, but only to doubt about a defendant's guilt, which is not in the strictest sense, a mitigating factor. Franklin, 487 U.S. at 174, 108 S.Ct. at 2327-28. The Supreme Court further analyzed this holding in Penry v. Lynaugh, 492 U.S. 302, 315-319, 109 S.Ct. 2934, 2945-2947, 106 L.Ed.2d 256 (1989).

¶ 36. In the case at bar, there is no residual doubt that could be argued. This Court has already affirmed Holland's conviction of capital murder committed while engaged in the underlying felony of rape. Accordingly, this Court's prior affirmance of guilt precludes any residual or whimsical doubt as to the validity of Holland's conviction.FN7 We hold that there can be no error in denying Holland the right to argue residual or whimsical doubt, since it is not a mitigating factor that is constitutionally recognized. FN7. Residual doubt may have a place in a sentence phase conducted before the same jury that convicted a capital defendant. However, there is no residual doubt of guilt to be argued in cases such as that at bar.

¶ 37. We must not confuse what is valid, relevant mitigating evidence with evidence utilized to attack the prior verdict and affirmance of guilt. All of the evidence proposed in Holland's proffer is nothing more than an attempt to attack Holland's prior conviction, which was affirmed by this Court. In Minnick v. State, supra, in considering the defendant's refused jury instruction, which read: “The Court instructs the jury that if you have any whimsical doubt then that is a mitigating circumstance,” this Court stated: In refusing the instruction, the trial court told defense counsel that he could argue whimsical or residual doubt to the jury if he chose, which defense counsel did. Minnick cites Smith v. Wainwright, 741 F.2d 1248 (11th Cir.1984), as support for his proposition. While that case acknowledges that a “whimsical doubt” might inure to the benefit of a defendant, the opinion does not say that the jury needs to be instructed on whimsical doubt as a mitigating factor. In fact, this discussion was in the context of the court considering an ineffective assistance of counsel claim and, tangentially, the ramifications of a single jury sitting for both phases of a capital trial. In a later Fifth Circuit case, Johnson v. Thigpen, 806 F.2d 1243 (5th Cir.1986), the Fifth Circuit again considered whimsical doubt in terms of such being a beneficial byproduct of the same jury sitting for both phases of the trial. Id. at 1251.That discussion was in the context of what limitations may be imposed on defense counsel's argument so as not to impair the jury's consideration of residual doubt. No discussion of a jury instruction appears in this opinion. (emphasis added). Minnick, 551 So.2d at 95.

¶ 38. It is clear that while this Court, and many others, allow residual doubt argument, the United States Supreme Court, and this Court, do not permit defendants such as Holland to go further with the submission of jury instruction or evidence on residual doubt.

¶ 39. There is very little factual information to which to apply this caselaw. This question is primarily one of law. However, the trial court's ruling affected Holland's defense in at least three ways: (1) Holland stated that he would have testified himself and that the trial court's ruling “chilled” his right to testify; (2) Holland would have put on a serologist to dispute the State's findings concerning seminal fluid in Krystal, in that the serologist would have stated that the State's finding of acid phosphatase do not necessarily mean seminal fluid was present; and (3) Holland would have put Dr. Leroy Riddick on the stand to dispute Dr. McGarry's findings of rape.

¶ 40. In summary, while the question of whether Holland should be allowed to relitigate his guilt, in order to allow him to rebut evidence at sentencing, is very close, the distinction here is between introducing valid mitigating evidence in the sentencing phase and introducing evidence that challenges the guilty verdict of the original jury. The evidence Holland proffered is nothing more than an attack upon the prior finding of guilt by the first jury, which was affirmed by this Court. We hold that Holland's proffered evidence is not proper mitigation evidence, that he may not argue residual or whimsical doubt to a re-sentencing jury, and that he is collaterally estopped because of the prior finding of guilt affirmed by this Court. To allow the prior verdict to be challenged in this manner is a failure to recognize that this proceeding is actually a totally separate second phase hearing, except that Holland has already been convicted of capital murder committed during the course of the rape of Krystal King and this re-sentencing jury has knowledge that Holland was previously adjudged guilty of that crime. The re-sentencing jury is allowed to rely upon that prior conviction as sufficient.

¶ 41. As for residual doubt, because Holland is not entitled to a jury instruction on such a doubt, Holland is not entitled to present evidence on such a doubt. Hansen, 592 So.2d at 150-51.

¶ 42. Regarding whether the trial court in fact directed a verdict against Holland, he correctly asserts that caselaw prohibits a directed verdict against a criminal defendant. Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993) (holding such jury instructions not harmless error). Holland asserts that the exclusion of his exculpatory evidence at sentencing rendered a de facto directed verdict against him on the Enmund factors and the rape aggravator. Holland also asserts that the State should not be able to introduce all of the evidence at trial once again without allowing the defendant to rebut this evidence.

¶ 43. Our caselaw requires the State to prove at least one of the Enmund factors regarding intent to kill. See Miss.Code Ann. § 99-19-101(7) (1994 rev.). This requirement necessarily forces the State to include evidence impacting on guilt, which the jury could nevertheless find insufficient to impose death, despite the defendant's conviction. Biegenwald, 524 A.2d at 160-61. On the other hand, the State could elect to stand on the prior conviction. Mississippi allows the State to stand on its conviction or reintroduce the evidence in the guilt phase. Jackson, 337 So.2d at 1256; see also Hill v. State, 432 So.2d 427, 441 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).

¶ 44. Here, contrary to Holland's claim, the trial court clearly ruled that there would be no directed verdict on the issue of murder during the commission of a rape and that Holland actually killed the victim. This allegation of error is but an attempt by Holland to mischaracterize the trial court's ruling. We hold that Holland did not suffer a directed verdict on these issues and that the State is permitted to introduce evidence of guilt, without rebuttal of that evidence because of res judicata. Irving, 441 So.2d at 851-52. “Retrial of issues only to guilt is not permitted.” Williams, 684 So.2d at 1192, citing Biegenwald, 524 A.2d at 158-61.

¶ 45. Holland also argues that the refusal to admit Canfield's testimony on the ground of res judicata violates compulsory process rights, the Confrontation Clause, fair trial, due process and equal protection of law guarantees, and his rights under the Eighth Amendment.

¶ 46. The trial court judge excluded Dr. Canfield's testimony on the grounds that, as a matter of law, this exculpatory testimony attacking the question of rape was barred in the sentencing hearing. Dr. Canfield would have testified that he found no acid phosphatase in testing vaginal swabs from Krystal, indicating that no semen was present, and therefore, that no rape occurred.

¶ 47. The standard of review would, therefore, be de novo. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). Holland complains the actions of the trial court in excluding evidence of innocence at sentencing, such as Dr. Canfield's testimony, violates his right to compulsory process and his Confrontation Clause guarantees. These rights (fair trial, due process, equal protection) are discussed above through case law in several allegations of error. Holland cites no caselaw to support the proposition that the trial court's refusal to admit Dr. Canfield's testimony violates either compulsory process or Confrontation Clause guarantees. This sub-issue is thus barred as unsupported by authority. See, e.g., Johnson v. State, 626 So.2d 631, 634 (Miss.1993).

¶ 48. Notwithstanding the bar, even alternatively considering the issue on the merits, Holland has no Confrontation Clause guarantees at sentencing. Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959), reh'g denied, 359 U.S. 956, 79 S.Ct. 737, 3 L.Ed.2d 763 (1959); see United States v. Hammer, 3 F.3d 266, 272 (8th Cir.1993), cert. denied, 510 U.S. 1139, 114 S.Ct. 1121, 127 L.Ed.2d 430 (1994).

¶ 49. Although the United States Supreme Court has not reviewed the question of compulsory process at sentencing, at least one state court requires that guarantee under some circumstances. State v. Wells, 265 N.W.2d 239, 243 (N.D.1978), cert. denied, 442 U.S. 932, 99 S.Ct. 2865, 61 L.Ed.2d 300 (1979). On the merits, Mississippi caselaw holds that compulsory process requires “a fair and reasonable opportunity to confront and rebut” any evidence which supports the State's position. Goforth v. City of Ridgeland, 603 So.2d 323, 327 (Miss.1992). Neither this Court nor any other has determined what effect, if any, a prior jury's finding of guilt would have on this right at resentencing. The question of compulsory process, in conflict with theory on res judicata, is a case of first impression for this Court. In Holland v. State, 587 So.2d 848 (1991), this Court affirmed the finding of the prior jury that Holland had murdered the victim during the course of a rape. Such proof was sufficient for the prior jury to find that the capital offense was committed during the course of a rape and that Holland had actually killed Krystal King. Nevertheless, the State re-introduced proof of the killing and rape that had previously been introduced at the first trial. Allowing Holland to rebut the proof of his guilt by calling as witnesses or reading the testimony of Dr. Canfield, Mr. Turner, Dr. Riddick and Mr. Wojtkiewicz would be allowing Holland to relitigate the issue of guilt, which we have already determined to be res judicata.

¶ 50. Holland cites no cases in support of the claim that the trial court erred in denying the testimony of Dr. Riddick. Accordingly, this issue is barred from consideration. Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993); Caldwell v. State, 564 So.2d 1371, 1373-74 (Miss.1990).

¶ 51. The procedural bar notwithstanding, and alternatively considering the issue on the merits, we note that Holland addresses this issue on the same grounds as the allegations raised in Issues II through VII. Holland essentially argues that by disallowing rebuttal evidence against Dr. McGarry, the trial court violated Holland's constitutional rights. This issue revolves around, as do the other issues, whether res judicata at trial bars relitigation of guilt at sentencing, given Holland's constitutional rights. This allegation of error is an incarnation of the earlier addressed issues.FN8 We again hold that this issue is barred due to res judicata.

FN8. Holland claimed that he wanted to testify that he was innocent and that he did not commit a rape. (Tr. 1280-81). The trial court would not permit him to testify to matters of guilt or innocence, although he was otherwise free to take the stand. Holland argues that exclusion of exculpatory evidence chilled his right to testify in this case. Holland cites authority concerning his right to testify at trial. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2707-08, 97 L.Ed.2d 37 (1987). This Court has recognized that a defendant's prior conviction, potentially usable for impeachment, may impermissibly chill a defendant's right to testify if he has something relevant to say, such as establishing an alibi. Saucier v. State, 562 So.2d 1238, 1245 (Miss.1990); see also Hansen, 592 So.2d at 130-31; Hawkins v. State, 538 So.2d 1204, 1206 (Miss.1989). Another state's case concerning chilling testimony dealt with using perjury as an aggravating factor without a separate trial on perjury. State v. James, 109 N.M. 278, 784 P.2d 1021, 1024-25 (App.1989). This case upheld the trial court's ability to use defined and noted falsehoods in a defendant's testimony as a factor in considering a sentence. James, 784 P.2d at 1024-25.

¶ 52. Holland argues that the trial court's rulings unconstitutionally “chilled” his right to testify. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (recognizing constitutional right “to testify on one's own behalf at a criminal trial”). Holland claims that because of the trial court's ruling he not only did not testify, but also elected not to make a closing statement to the jury. Such claim was raised for the first time in Holland's Motion for New Trial. We find that this is but a mere allegation wholly unsupported by any evidence in this record and was not further developed during the hearing on the motion for a new trial. This issue is barred. Foster v. State, 639 So.2d 1263, 1270 (Miss.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995), reh'g denied, 514 U.S. 1123, 115 S.Ct. 1992, 131 L.Ed.2d 878 (1995); Cole v. State, 525 So.2d 365 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g denied, 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989).

IX. DID THE TRIAL COURT ERR IN DENYING HOLLAND FUNDS TO RETAIN THE SERVICES OF AN EXPERT IN THE FIELD OF SEROLOGY?

¶ 53. Holland fails to fully brief the issue in his original and reply briefs of the failure of the trial court to provide funds for an expert serologist. No authority is cited by Holland; thus, this issue is barred. Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982). Accordingly, this Court bars discussion of it under Caldwell, 564 So.2d at 1373-74.

¶ 54. The bar notwithstanding, alternatively we consider the issue on its merits. Holland asserts that a serologist would have testified to Holland's innocence. Specifically, he argues that this serologist would state that the presence of acid phosphatase in Krystal's body does not necessarily mean semen was present. The trial judge excluded the serologist's testimony and refused to provide Holland funds for that serologist because, in the trial judge's view, such exculpatory evidence was impermissible at sentencing, as a matter of law.

¶ 55. The standard of review is de novo, since the trial court's refusal was based upon law. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). The general standard of review for a trial court's refusal to provide an expert witness is substantial need for that expert. Hansen, 592 So.2d at 125. The general standard of review for a trial court's decision on a question of admissibility of an expert's opinion is whether the expert's testimony would “assist the trier of fact in making a determination on the ultimate issue.” Lentz v. State, 604 So.2d 243, 246 (Miss.1992). Having affirmed the bar on exculpatory evidence in sentencing, this Court holds that the trial court's decision in this case was correct. Holland asserts in his trial brief that the serologist's testimony would go to guilt or innocence and would assist the trier of fact on a relevant issue. This Court cannot address the issue of substantial need, as it was not considered by the trial court. Beard v. Stanley, 205 Miss. 723, 735, 39 So.2d 317, 321 (1949).

X. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION IN LIMINE TO PRECLUDE THE PROSECUTION AT HOLLAND'S RE-SENTENCING HEARING FROM INTRODUCING ANY EVIDENCE OR WITNESS TESTIMONY THAT IS NOT RELEVANT TO STATUTORY AGGRAVATING CIRCUMSTANCES?

¶ 56. Holland claims in a motion in limine that the state should be precluded from introducing evidence not relevant to the statutory aggravating circumstances. This assignment of error reaches the same issues addressed in assignment of error VI.

¶ 57. In 1983 the legislature amended the capital sentencing statute, Miss.Code Ann. § 99-19-101 (Supp.1994). See White v. State, 532 So.2d 1207, 1219 (Miss.1988). The amendment codified the Enmund factors that a sentencing jury must find, in order to impose a death sentence, that the defendant actually killed, that the defendant attempted to kill, that the defendant intended that a killing take place, or that the defendant contemplated that lethal force be used. Miss.Code Ann. § 99-19-101(7) (Supp.1994). The written factors reflect the Enmund requirement that jurors find intent to kill before a capital sentence may be imposed. Enmund v. Florida, 458 U.S. 782, 798-801, 102 S.Ct. 3368, 3377-3379, 73 L.Ed.2d 1140 (1982).

¶ 58. In White v. State, this Court clearly established that the State must present evidence on the Enmund factors to reach or exceed the level of reasonable doubt. White, 532 So.2d at 1219.FN9 As a result, any Enmund findings are vulnerable to attack for sufficiency of the evidence errors, without proof being submitted at sentencing by the State, reaching the standard of beyond a reasonable doubt. Id. at 1220. The Carr Court recently reaffirmed White 's holding that Enmund factors must be supported with “credible evidence.” Carr v. State, 655 So.2d 824, 854 (Miss.1995), cert. denied, 516 U.S. 1076, 116 S.Ct. 782, 133 L.Ed.2d 733 (1996). FN9. In doing so, this Court merely applied the general standard for proof at criminal trials to these findings at sentencing. White, 532 So.2d at 1219, citing McCray v. State, 486 So.2d 1247, 1251 (Miss.1986); Barnette v. State, 481 So.2d 788, 791 (Miss.1985). Federal constitutional level guarantees of due process support this requirement. Id., citing, e.g., Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

¶ 59. Therefore, it is not only permissible, but mandatory, that the State be required to put on evidence impacting on the intent of the accused, which is the mens rea of the underlying crime. See, e.g., Myers v. State, 522 So.2d 760, 761 (Miss.1988) (recognizing element of mens rea at criminal law). The State has the right and is required to not only present evidence of aggravators, but also evidence impacting on Enmund factors. We find that there was no error in the trial court's denial of this instruction.

XI. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTOR TO INTRODUCE INTO EVIDENCE A COPY OF THE INDICTMENT AND A CERTIFIED COPY OF THE JURY VERDICT FROM THE GUILT-INNOCENCE PHASE OF HOLLAND'S PREVIOUS TRIAL?

¶ 60. Holland asserts that the trial court erred in admitting evidence on the result of a former trial. Holland asserts that Mississippi caselaw bars the introduction of this evidence. Merchants Co. v. Hutchinson, 199 So.2d 813, 816 (Miss.1967). Holland's reasoning is misplaced for two reasons.

¶ 61. First, this Court has not styled the sentencing part of a capital case as a separate trial, in which evidence of the conviction for capital murder would be inadmissible. Instead, this Court has called that part of the case a “phase” permitting the State, at sentencing, to rest on the conviction or introduce evidence in the guilt phase to prove any aggravators requiring such evidence. Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976) (“We now hold that a trial in which the defendant is subject to receiving the penalty of death must be conducted in two phases [guilt and sentencing].”), superseded by statute on unrelated grounds as recognized by Gray v. State, 351 So.2d 1342, 1349 (Miss.1977).

¶ 62. Second, Mississippi does allow the use of prior convictions in sentencing trials if the convictions can be shown to go to an aggravator. See, e.g., Hansen, 592 So.2d at 145 (holding that ten prior convictions are admissible as rebuttal evidence, but cannot be aggravators by themselves). Furthermore, this Court has upheld the introduction of all evidence in the guilt phase, wherever such evidence is relevant to sentencing issues, including the conviction for the underlying crimes itself. Hill, 432 So.2d at 441.

¶ 63. On the federal level, the United States Supreme Court permitted the introduction of prior convictions at the capital sentencing phase, finding that no due process or other constitutional guarantees were infringed. Barclay v. Florida, 463 U.S. 939, 956, 103 S.Ct. 3418, 3428, 77 L.Ed.2d 1134 (1983), reh'g denied, 464 U.S. 874, 104 S.Ct. 209, 78 L.Ed.2d 185 (1983). Other federal courts have followed Barclay. Sidebottom v. Delo, 46 F.3d 744, 756-57 (8th Cir.1995), cert. denied, 516 U.S. 849, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995).

¶ 64. Holland offers no legal support to demonstrate that this Court has defined trial and sentencing within a capital case as two separate trials. This Court need not consider an issue that is not supported by authority. See Thibodeaux v. State, 652 So.2d 153, 155 (1995); See also, Roberson v. State, 595 So.2d 1310, 1318 (1992). Second, Holland does not dispute the introduction of prior convictions at trial, where relevant. Even under Holland's logic, his own conviction would be a prior trial, and admission of it where relevant to an aggravator or Enmund factor would not cause error. There is no merit to this issue.

XII. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION FOR A CRIMINAL HISTORY OF THE VICTIM?

¶ 65. Holland argues that he was entitled to Krystal King's criminal history. Holland asserts that this information would have been relevant to the question of guilt, or to Miss.Code Ann. § 99-19-101(6)(c). This mitigator/statute allows evidence on the question of “[t]he victim was a participant in the defendant's conduct or consented to the act.” Miss.Code Ann. § 99-19-101(6)(c) (1994 rev.).FN10 Holland does not explain at all as to why this information would be relevant to this factor. Assertions of error without support from “reasons and authorities” are barred from consideration. Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982). But see Brown v. State, 534 So.2d 1019, 1023 (Miss.1988) (overlooking this procedural bar “in the interest of justice.”), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989).

¶ 66. Holland cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) for the proposition that a due process violation is automatically triggered upon a suppression of any evidence material to guilt or punishment, regardless of good faith.

¶ 67. However, the United States Supreme Court developed a materiality standard for Brady violations. United States v. Agurs, 427 U.S. 97, 114, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976). In Agurs, the Court was faced with a prosecutor who failed to release a victim's criminal record and was consequently attacked with a Brady violation. Agurs, 427 U.S. at 114, 96 S.Ct. at 2402. The Court stated that no Brady violation exists where the evidence in question would not raise a reasonable doubt about guilt under the circumstances. Id. The Court further refined the Brady problem later by stating that there was no violation of a defendant's Brady rights unless the omission of evidence created a “reasonable probability” of changing the outcome of a given case. United States v. Bagley, 473 U.S. 667, 684, 105 S.Ct. 3375, 3384-85, 87 L.Ed.2d 481 (1985).

¶ 68. Other states have applied Brady to their own caselaw. New York stated that, absent a connection between the victim's criminal record to the crime with which the defendant was charged, the victim's record was collateral and the State could properly move to suppress it. People v. Battee, 122 A.D.2d 526, 505 N.Y.S.2d 10, 11 (1986). Georgia stated that the victim's criminal record was properly withheld when the purpose of its use was inconsistent with the facts and circumstances of the case. Howard v. State, 251 Ga. 586, 308 S.E.2d 167, 169 (1983).

¶ 69. Applying the materiality standard, the facts of Krystal's death should be considered. Holland argues that Krystal's criminal record, regarding use of a knife, would implicate her participation in the crime to her own body. However, Dr. McGarry testified as to the sequence of Krystal's injuries, beginning with the blows to her face, arms, and legs, then the injuries to her vagina and rectum, supposedly consistent with forceful sexual penetration. Only after those injuries did the stab wound to Krystal's heart occur, according to the forensic pathologist. Krystal then suffered a shirt being knotted around her throat and a pair of panties being stuffed into her throat, which caused her death. Krystal also suffered a skull-breaking blow to the back of her head, occurring close to the time of her death.

¶ 70. We hold that any record of Krystal's criminal activity would not meet the Agurs and Bagley materiality standards. Even if Krystal engaged in knifeplay with Holland, she certainly did not help him inflict these additional wounds to her own body, and indeed, many of these injuries occurred before her knife wound.FN11 It would be illogical to believe that any human being would consent to having a pair of underwear stuffed into his or her throat, nor would Krystal have possibly helped Holland to hit her with sufficient force to fracture her skull, in the back of her head.FN12 As a result, this Court finds that evidence of knifeplay in Krystal's criminal record, assuming arguendo that it exists, would not raise a reasonable doubt as to the outcome of this case. We find no error regarding this issue. FN11. Indeed, this Court held in the first case that Holland's allegations of knife play with Krystal were insufficient to raise a question of manslaughter. Holland v. State, 587 So.2d 848, 870-71 (Miss.1991). This Court noted that Holland gave several inconsistent statements about the murder, supposedly occurring because of the knife wound, according to Holland. Id. at 870-71. However, this Court also noted Dr. McGarry's testimony indicated that the violent thrust of this knife could only arise through an intentional blow. Id. at 870. As a result of the circumstances, this Court found “no evidence of absence of malice.” Id. at 871.

Since no evidence of a lack of malice was found, this Court can similarly conclude that there is no evidence that Krystal assisted in her own death. This argument is amply supported by the amount and timeliness of the additional injuries Krystal suffered, which led to her death. FN12. Indeed, this Court has made findings before that a victim could not consent to conduct “evidenced in [the] record” (rape with a foreign object and setting victim on fire), under any set of circumstances. Giles v. State, 650 So.2d 846, 855 (Miss.1995) (Prather, P.J., concurring) (joined by four justices).

XIII. DID THE TRIAL COURT ERR IN REFUSING TO HEAR HOLLAND'S MOTION TO SUPPRESS THE CONFESSION?

¶ 71. Holland raised this identical issue in his previous appeal on this case. The facts and circumstances surrounding the issue of its validity were exhaustively analyzed, with the Court concluding that Holland knowingly waived his rights in giving his confession. Holland I, 587 So.2d at 862.

¶ 72. Here, on resentencing, Holland attempted to reopen suppression hearings regarding his confession, stating that he did not have experience with Miranda rights. The trial court then asked Holland if he had any new evidence to offer the court. In response, Holland indicated that he did not have as much experience with Miranda rights as the Holland I opinion stated. After discussing the relevance of the findings in the Holland I opinion, the trial court refused to hold the suppression hearing.

¶ 73. The question, in short, is whether a suppression hearing should have been granted. Holland relies on West v. State in arguing that on retrial, all issues, including that of evidence admissibility, are to be retried de novo. West v. State, 519 So.2d 418, 425 (Miss.1988). Holland has misapplied West as that case is clearly distinguishable because it concerned a retrial on both guilt and sentencing, not sentencing alone. West, 519 So.2d at 418-19.

¶ 74. The State correctly argues that Jordan v. State settled this issue, stating that res judicata on admissibility of a tape recording bars relitigation at resentencing. Jordan v. State, 518 So.2d 1186, 1189, cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988). This Court refused to address the issue of a suppression hearing through res judicata, where the confession issue was fully litigated in the guilt phase of the first trial. Jordan, 518 So.2d at 1189. Again, as in Jordan, we hold that Holland is barred because the issue is res judicata.

¶ 75. The bar notwithstanding, alternatively we address the issue on the merits. The United States Supreme Court held that Fifth Amendment privileges against self-incrimination apply at sentencing. Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 1872-73, 68 L.Ed.2d 359 (1981); State v. Tinkham, 74 Wash.App. 102, 871 P.2d 1127, 1129-31 (1994). However, in this case, Holland's Fifth Amendment rights have been litigated once before, thereby distinguishing the case at bar from Estelle and other cases.

¶ 76. Other states have held that a defendant's motion to reconsider a suppression hearing on voluntariness, under these circumstances, would be barred under res judicata, where the type of additional evidence asserted was likely available at the first hearing. People v. Brownell, 123 Ill.App.3d 307, 78 Ill.Dec. 817, 822, 462 N.E.2d 936, 941 (1984); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179, 181 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982). Alternatively, the trial court would be required to hold the suppression hearing at sentencing if the confession could not have been litigated at the first trial. Brownell, 78 Ill.Dec. at 817, 462 N.E.2d at 936.

¶ 77. We find that this issue lacks relevance because Holland's alleged ignorance of the meaning of his Miranda rights was evidence which Holland could well have asserted in his first trial, since he presumably knew about his own knowledge of Miranda all along. Accordingly, this Court, under the authority of Brownell and Gilbert, rejects this issue as being without merit. The issue is barred and is alternatively without merit.

XIV. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION FOR A NEUROLOGICAL EXAM?

¶ 78. Holland requested a neurological examination, including a Computer Assisted Tomography (CAT) scan and an Magnetic Resonance Imaging (MRI) scan, to determine brain damage. Holland testified during proffer that he was often hit on the head as a child, had scarlet fever, and was almost asphyxiated in an accident. Holland stated that he had also suffered blows to his head in car accidents. The trial court refused to listen to more of Holland's testimony because the court concluded that medical testimony was necessary regarding the need for this neurological examination. Holland's counsel told the court that Holland needed the examinations before he could find an expert to testify on his ability to appreciate the criminality of this conduct, which is a mitigating circumstance.

¶ 79. The State, arguing in opposition, stated that an expert should first testify that the tests are needed, rather than having the tests done first. The trial court stated that Holland must first obtain an expert affidavit establishing the need for such an examination before Holland's request would be granted. Holland later produced an affidavit from Dr. Marc Zimmerman, a forensic psychologist, but the trial court again denied the examination. Holland now argues that Zimmerman's affidavit states that such an examination was needed, and that the requested examination should have been granted by the trial court.

¶ 80. Mississippi caselaw states expert assistance should be granted upon a showing of substantial need. Butler v. State, 608 So.2d 314, 321 (Miss.1992). The standard of review is abuse of discretion. Id. at 321. “Undeveloped assertions” of helpfulness to the defense are insufficient to show that need. Hansen, 592 So.2d at 125.

¶ 81. The United States Supreme Court uses similar standards. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) (undeveloped assertions will not suffice for showing of need), vacated on other grounds, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987); Ake v. Oklahoma, 470 U.S. 68, 86, 105 S.Ct. 1087, 1097-98, 84 L.Ed.2d 53 (1985) (showing of mental incapacity as a significant factor in trial sufficient to raise constitutional guarantee to expert assistance).

¶ 82. Here, there is no showing that a neurologist, who presumably could have given an opinion on the need for a neurological examination, could not have been obtained from the state hospital. See Butler, 608 So.2d 314, 321 (Miss.1992) (examination by state supplied psychologist sufficient to fulfill Ake requirements). One federal district court has also held Ake inapplicable to neurological examinations, as such examinations are medical and not psychological in nature. Davis v. Singletary, 853 F.Supp. 1492, 1540 n. 39 (M.D.Fla.1994).

¶ 83. It appears that a neurological examination would have been helpful in determining the existence of brain damage and in establishing a mitigator on capacity to appreciate one's conduct. See Miss.Code Ann. § 99-19-101(6)(f) (1994 rev.). However, Holland wholly failed to meet the established criteria for proving a substantial need; therefore, the trial judge was correct in his denial of such expert.

¶ 84. This Court has repeatedly addressed this issue and required a demonstration by a defendant of “substantial need” rather than an mere assertion of claims and allegations. In Hansen, 592 So.2d at 125, concerning the question of appointment of a pathologist and an investigator as an expert, this Court held that “the Constitution does not require the State to furnish an investigator absent a showing of substantial need.” Id. (emphasis added). The Court further stated, “The accused is required to offer concrete reasons for requiring such assistance, not ‘undeveloped assertions that the requested assistance would be beneficial.’ ” Id., citing Caldwell, 472 U.S. at 323 n. 1, 105 S.Ct. at 2637 n. 1. This same standard has also been applied to other types of experts. See Butler v. State, 608 So.2d 314, 321 (Miss.1992) (psychiatrist and investigator); Griffin v. State, 557 So.2d 542, 550-551 (Miss.1990) (psychologist and ballistics expert); Pinkney v. State, 538 So.2d 329, 343 (Miss.1988) (investigator), vacated on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). Obviously, the same standard applies to all experts.

¶ 85. This Court most recently revisited this issue in Harrison v. State, 635 So.2d 894 (Miss.1994), concerning the denial of a forensic pathology expert by the trial court. The Court reversed because the defendant's mental health was a significant factor at trial, as developed by the State on direct through its witness, Dr. McGarry. There, the defense was certainly entitled to rebut such evidence. In addition, the State failed to comply with Uniform Circuit Court Criminal Rule 4.06 on this very issue; thus, the error was compounded. Nevertheless, this Court again stated: Of course a defendant must come forth with concrete reasons, not unsubstantiated assertions that assistance would be beneficial. Harrison, 635 So.2d at 901. Harrison's attorneys clearly demonstrated a substantial need and thus met the established criteria under our caselaw to entitle the defendant to such an expert.

¶ 86. Here, contrary to Harrison, Holland was merely conducting a fishing expedition in an attempt to show a mental disorder resulting from brain damage due to injuries suffered as a child. More importantly, it does not escape this Court's notice that Dr. Zimmerman's affidavit does not contain a diagnosis that Holland is suffering from any mental disorder whatsoever, much less any brain damage. Simply put, there is no diagnosis of Holland, but rather Dr. Zimmerman uses the terms “organic brain dysfunction and organic brain damage” as interchangeable terms and states that “the medical community generally accepts as reliable the results of neuropsychological testing of the type I performed on Gerald Holland.” How can Holland have possibly established the proper criteria before the trial judge without any mention of a diagnosis by Dr. Zimmerman? Where is the proof of substantial need? We find that there is none. The trial judge was correct under these circumstances in denying such an expert. Determination of substantial need is within the discretion of the trial court. Hansen, 592 So.2d at 125. Substantial need criteria was not demonstrated by Holland. Caldwell, supra; Johnson v. State, 529 So.2d 577, 589 (Miss.1988); Pinkney, 538 So.2d at 343; and Griffin, 557 So.2d at 550-51. Additionally, Holland's refusal to obtain a state neurologist is also grounds to affirm this issue. Holland did not want the State to use in cross-examination the medical records on which Dr. Zimmerman relied in forming his stated opinion. When Holland placed his mental condition in issue he waived the privilege to those medical records relied on by Dr. Zimmerman. Rule 503(f), Miss. Rules of Evidence states: Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

¶ 87. Rule 703, Miss. Rules of Evidence states: The facts or 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.

¶ 88. Rule 611(b), Miss. Rules of Evidence states: Scope of Cross-Examination. Cross-examination shall not be limited to subject matter of direct examination and matters affecting the credibility of the witness.

¶ 89. Under the Rules of Evidence, the State was entitled to cross-examine Dr. Zimmerman on the basis of his opinions, including any medical records he considered in forming those opinions. No medical privilege existed since Holland placed his mental and emotional condition in issue. The trial court properly overruled the motion in limine to prohibit cross-examination of Dr. Zimmerman on the basis of his opinions.

¶ 90. Holland is in error when he says that the record shows he was drinking hard liquor on the night of the murder. The record shows only that there was a bottle of tequila and beer cans and a glass containing what looked like Coca Cola. William Boyer never stated that he saw Holland drink anything. This was mere speculation on his part. Jerry Douglas stated that Holland basically drank beer and that he seldom mixed beer with hard liquor. Douglas stated that in the years he had known Holland he had only seen Holland mix liquor and beer three or four times. Douglas stated that when Holland mixed the two he “seemed to be a little more aggressive.” However, Douglas could recall Holland drinking only beer on the night of the murder. Douglas did say that there was a bottle of tequila in the house. Douglas stated that Holland drank beer after the murder while Holland was disposing of Krystal's body.

¶ 91. The question that Holland contends as error, asked on voir dire of Dr. Zimmerman regarding his qualifications as an expert, was objected to, and the objection was sustained by the trial court, a fact admitted by Holland. When a trial court sustains an objection it cures any error. Thus, error, if any, was cured or was harmless beyond a reasonable doubt.

¶ 92. Further, when we look to the cross-examination by the State of Dr. Zimmerman we do not find any objections to the claimed erroneous questions or to the State testifying. These claims are waived as being raised for the first time on this appeal. Chase v. State, 645 So.2d 829 (Miss.1994), cert. denied, 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995); Foster, supra, Cole, supra. Upon reading the testimony of Dr. Zimmerman, he acquitted himself well on both direct examination and cross-examination. Dr. Zimmerman was allowed to testify that he found indications of brain dysfunction without objection. The State's cross-examination was simply testing Dr. Zimmerman's conclusions and opinions. Certainly, that is the proper function of cross-examination. The State may certainly rebut mitigating evidence either by cross-examination or rebuttal evidence and may comment on the inferences to be drawn from the evidence in closing argument. Hansen, 592 So.2d at 144-52.

¶ 93. The comments on closing argument to which Holland's claim refers were not objected to by Holland. This claim is waived for the lack of an objection. Chase, supra; Foster, supra; Cole, supra. Even so, such was fair comment on the evidence introduced at trial and merely disparaged the mitigating evidence offered by Holland. Hansen, supra. The prosecutor's comment on not finding anything wrong with Holland's IQ in the earlier test was objected to by the defense. This objection was overruled. The prosecutor corrected himself regarding the IQ comment in his next statement. The test relied on by Dr. Zimmerman indicated that Holland was normal in the earlier test. We find no merit to this issue.

XV. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION FOR CHANGE OF VENUE?

¶ 94. Holland received a change of venue in the first trial, Holland I. The trial court refused to change venue at the re-sentencing trial. The trial court held a hearing with jurors selected for another case to determine the extent of their knowledge about Holland. Some jurors knew about the case and said it would affect their verdict, while others did not.

¶ 95. Holland asserts that at jury selection, several jurors knew about Holland's case and were affected by it, namely Mr. Joseph, who did not serve, Ms. Rosskopf, who did not serve, and Mr. Myrick, who did not serve. Other jurors who did serve knew of the case, but stated they could put aside their opinions, namely Ms. Larson and Ms. Scarborough.

¶ 96. 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. Porter v. State, 616 So.2d 899, 905 (Miss.1993). In addition, adverse and prejudicial pretrial publicity may demonstrate the inability to obtain a fair jury in that venue. Johnson v. State, 476 So.2d 1195, 1211 (Miss.1985). Continuing evidence of prejudicial feelings could lead to a requirement for change of venue, even with substantial length between crime and trial. Coleman v. Kemp, 778 F.2d 1487, 1541 (11th Cir.1985), cert. denied, Kemp v. Coleman, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986), reh'g denied, 478 U.S. 1014, 106 S.Ct. 3321, 92 L.Ed.2d 728 (1986).

¶ 97. However, the State can rebut this showing by proving from voir dire that the trial court impaneled an impartial jury. Harris v. State, 537 So.2d 1325, 1329 (Miss.1989). If the State demonstrates such, this Court will not overturn the trial court's finding that an impartial jury could be found, despite adverse publicity. Harris, 537 So.2d at 1329. This Court reviews the trial court's finding under an abuse of discretion standard. Id. In any case, this Court will treat with deference a venire person's assertions of impartiality. Scott v. Ball, 595 So.2d 848, 850 (Miss.1992).

¶ 98. Two factors are evaluated. First is the level of adverse publicity, both in extent of coverage and its inflammatory nature. Second is the extent of the effect the publicity had upon the venire persons in the case.

¶ 99. Comparing the case at bar with Harris v. State is proper here. Harris involved a brutal rape covered at least twice by television. Harris, 537 So.2d at 1327. A radio station manager affirmed that the station had aired five press reports before trial. Id.

¶ 100. Here, the local television station prepared at least thirteen clips containing news from the original trial in 1987 and 1988, but none for resentencing.

¶ 101. As for newspaper coverage, Harris featured nineteen newspaper articles discussing the proceedings before and during Harris' only trial. Id. All presumably named Harris in its coverage, since police had arrested him the day of the crime. Id. One of these publications criticized the release of Harris on parole prior to this incident. Id. at 1328. Here, there were twenty-nine newspaper clippings concerning this case between September 1986 and May 1988, including several discussing a successful escape Holland made from the local jail.

¶ 102. However, only one clipping discussed this Court reversing Holland's sentence, in September 1991. There has been no television coverage on this since 1987. Holland's re-sentencing commenced on March 29, 1993, and ended on April 1, 1993. Although the level of publicity appears to be at least as great as that in Harris, the lapse of time between the trial and resentencing, in which no coverage of Holland apparently occurred, effectively lessens the effect of this publicity. The fact that no more news stories were reported between 1991 and 1993 distinguishes this case from the ongoing publicity asserted as a reason for granting resentencing venue in Coleman, 778 F.2d at 1541.

¶ 103. The second factor involves the effect of this coverage on the jury pool. In Harris, fifty-two of eighty-two venire persons had some knowledge of the case. Here, only six venirepersons raised their hands expressing knowledge of this case. As stated above, several of those venire persons stated their knowledge would affect their verdict, and they were removed. Of the two sitting jurors with knowledge of the case, both stated their knowledge would not bar them from serving impartially on the jury. Of these, one juror, Joan Scarbrough, was accepted by Holland, who had two challenges left at the time.

¶ 104. Harris featured more immediate and inflammatory coverage by the media. Nevertheless, the trial court judge in Harris found that the defendant could have a fair trial and denied a venue change. Harris, 537 So.2d at 1329. This Court held the trial court did not abuse its discretion in its decision. Here, given the lesser coverage and effect here, this Court affirms the ruling of the trial court.

XVI. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION FOR INDIVIDUAL SEQUESTERED VOIR DIRE?

¶ 105. Holland asserts that the trial court's denial of individual sequestered voir dire was error, given the publicity and circumstances in this case. Holland cites no authority for this issue, and it is accordingly barred. Clark v. State, 503 So.2d 277, 280 (Miss.1987); Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982).

¶ 106. Procedural bar notwithstanding, alternatively we address the issue on the merits. This Court has consistently held that individual sequestered voir dire is not required under Mississippi Uniform Criminal Rule of Circuit Court Practice 5.02. See, e.g., Russell v. State, 607 So.2d 1107, 1110 (Miss.1992), cert. denied, 519 U.S. 982, 117 S.Ct. 436, 136 L.Ed.2d 333 (1996); see Hansen, supra; Pate v. State, 419 So.2d at 1325-26. Moreover, the trial court allowed individual sequestered voir dire when warranted during jury selection in this case. It cannot be said that the trial court abused its discretion in denying individual sequestered voir dire of each and every prospective juror. Limited individual sequestered voir dire was allowed as was individual voir dire in front of the entire panel. We hold that this issue is without merit.

XVII. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION FOR INFORMATION QUESTIONNAIRES TO BE HANDED TO VENIRE PERSONS WHEN THEY APPEARED AT COURT?

¶ 107. Holland fails to cite authority for this proposition. Accordingly, it is procedurally barred. See, e.g., Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992).

¶ 108. Procedural bar notwithstanding, alternatively we address the issue on the merits. Holland contends that the trial court committed reversible error in denying his motion to have a questionnaire answered by all the prospective jurors. This claim is specious. Holland cites no constitutional provision, statute, rule or caselaw that requires a trial court to allow counsel to have a questionnaire answered by prospective jurors. Other states have addressed this issue, stating that trial courts could refuse jury questionnaires offered by the defendant, where the defendant had ample opportunity to voir dire jurors. United States v. Phibbs, 999 F.2d 1053, 1070-72 (6th Cir.1993), cert. denied, Rojas v. United States, 510 U.S. 1119, 114 S.Ct. 1070, 127 L.Ed.2d 389 (1994).

¶ 109. Here, there is no evidence present that Holland did not have sufficient opportunity to otherwise generally question jurors at voir dire. In fact, the trial court allowed individual requested voir dire when warranted. Additionally, if the trial court determines not to allow a questionnaire, abuse of discretion has not occurred, as there is no provision requiring any questionnaire. Having failed to make a cogent argument or cite any authority for this claim, this claim is not presented to this Court for review. See, e.g., Roberson v. State, 595 So.2d at 1318, (“We require that counsel not only make a condensed statement of the case but also support proposition with reasons and authorities in each case.”) This claim is without merit. XVIII. DID THE TRIAL COURT ERR IN FAILING TO GRANT HOLLAND'S CHALLENGE FOR CAUSE OF POTENTIAL JUROR RANDOLPH?

¶ 110. Holland moved to exclude juror Carolyn Randolph because of her statements and actions regarding this case. Randolph apparently gave contradictory answers on her impartiality. She first stated that nothing in her experience would influence her ability to be impartial. Then, Randolph could not say that her objectivity would not be clouded by her knowledge. She then stated that she could vote either way. Finally, she stated she could base her decision on the law and evidence. When Holland asked Randolph questions at voir dire, she stated that she would want the burden of proof for life imprisonment shifted to Holland.

¶ 111. Holland was denied a challenge for cause. The trial court stated that since Randolph said she could follow the law, she could serve on the jury. Holland exercised a peremptory challenge to remove Randolph. Holland had peremptories available at that time, but used them all before the end of jury selection.

¶ 112. No reversible error results where the defendant had peremptory challenges remaining at the point where the trial court fails to sustain a challenge for cause. Mettetal v. State, 615 So.2d 600, 603 (Miss.1993). The United States Supreme Court has also held that where the resulting jury was fair and impartial, the loss of a peremptory challenge does not result in a Sixth Amendment violation. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988), reh'g denied, 487 U.S. 1250, 109 S.Ct. 11, 101 L.Ed.2d 962 (1988). The Ross Court further stated that reversible error, in a court's failure to grant a challenge for cause, arises only where (1) the defendant exhausts all peremptories and (2) an incompetent juror is forced upon him. Ross, 487 U.S. at 89, 108 S.Ct. at 2279.

¶ 113. We hold that no reversible error exists here.FN13 The strike used against Randolph was not Holland's last peremptory strike, but rather was number eleven. When Cecil Ladner was seated as the twelfth juror Holland simply stated that he was out of peremptory challenges and had no strike for cause against this juror. The claim is waived as Randolph did not sit on this jury. Chase, 645 So.2d at 844. FN13. Holland claims several cases state that the defendant need only exhaust his peremptory challenges to have reversible error, regardless of the timing. See Johnson v. State, 512 So.2d 1246, 1255 (Miss.1987), cert. denied, 484 U.S. 968, 108 S.Ct. 462, 98 L.Ed.2d 402 (1987). Holland appears to be reading the cases too broadly. His first case, Hansen v. State, 592 So.2d 114, 129 (Miss.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992), reh'g denied, 505 U.S. 1231, 112 S.Ct. 3060, 120 L.Ed.2d 924 (1992) is distinguishable because Hansen had peremptories left over, and did not address this point. In Johnson, there was a lack of evidence on the timing of peremptory challenges that Hansen exercised. Johnson, 512 So.2d at 1255. As a result, these cases do not support Holland's claim.

XIX. DID THE TRIAL COURT ERR IN RULING THAT POTENTIAL JURORS COULD NOT BE ASKED WHETHER THEY COULD CONSIDER SPECIFIC MITIGATING CIRCUMSTANCES WHEN MAKING THEIR SENTENCING DECISION?

¶ 114. Holland attempted to ask jurors a hypothetical question, as follows: “If the defendant was to raise the fact that there was alcohol possibly consumed or alcohol involved in this case would you rule that out as a mitigating factor prior to passing on the life without parole or a death penalty?” The trial court refused to permit Holland to ask that question because it was hypothetical. However, Holland was allowed to inquire of jurors of any experience they had that “might affect [their] serving on a case where alcohol may be involved.” No juror responded affirmatively to his question.

¶ 115. Mississippi Uniform Criminal Rule of Circuit Court Practice 5.02 prohibits asking hypothetical questions of jurors in order to get a pledge for a certain verdict. Our caselaw bars attorneys from trying to get the jury to promise that under a hypothetical set of circumstances, they will vote a certain way. West v. State, 553 So.2d 8, 21-22 (Miss.1989). The standard of review for determining the impropriety of a question is abuse of discretion. Harris v. State, 532 So.2d 602, 606 (Miss.1988).

¶ 116. In Stringer v. State, 500 So.2d 928, 938 (Miss.1986), this Court dealt with the issue at bar. In this case, the prosecution asked jurors if there were any jurors who “could not vote for the death penalty if he didn't himself pull the trigger....” Id. at 938. The Court noted that reversible error does not occur per se where a prosecutor does not “specifically request a verdict during voir dire.” Id. This Court has rejected an assertion of error where a defense counsel was prohibited from asking whether, under certain hypothetical facts, the jury could vote not guilty. Harris at 605-07.

¶ 117. Holland argues that Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) is binding on this case. The United States Supreme Court in Morgan stated that the defense counsel was entitled to inquire whether jurors would consider any mitigating evidence at all, or whether they would automatically impose death. Foster v. State, 639 So.2d 1263 (Miss.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995), reh'g denied 514 U.S. 1123, 115 S.Ct. 1992, 131 L.Ed.2d 878 (1995); Morgan v. Illinois, 504 U.S. 719, 728-29, 112 S.Ct. 2222, 2229-30, 119 L.Ed.2d 492 (1992). Justice Scalia noted in dissent that the Court would presumably apply Morgan to individual mitigating factors. Morgan, 504 U.S. at 744 n. 3, 112 S.Ct. at 2237 n. 3 (Scalia, J., dissenting). Morgan fails to support Hollands argument.

¶ 118. Other states have directly addressed the question of individual mitigating factors. An Oklahoma appellate court determined that inquiries into how jurors feel about individual mitigating factors, and whether they could consider each factor, were properly denied. Plantz v. State, 876 P.2d 268, 278-79 (Okla.Crim.App.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995). Texas courts have held that jurors' beliefs on the weight they would give an individual mitigator were insufficient to make them subject to challenge for cause, where they were not otherwise biased against the law. Allridge v. State, 850 S.W.2d 471, 481-82 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). In light of the holdings of other states that jurors cannot be asked to give weight to aggravators at voir dire and in light of the inapplicability of Morgan, we find no error and affirm the trial court. There is no merit to Holland's argument.

XX. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION TO QUASH THE JURY VENIRE OR DECLARE A MISTRIAL WHEN DEPUTY SHERIFF PAUL M. JOSEPH STATED THAT HE “WAS IN COMPLETE AGREEMENT WITH THE FIRST SENTENCING THAT [HOLLAND] GOT?”

¶ 119. Holland claims that the trial court should have acted more forcefully when Paul Joseph's statement occurred. Joseph never stated what in fact was the first sentence Holland received. Joseph responded to the trial court's voir dire question on whether anything Joseph knew could affect his service on this case. When Joseph made his statement, Holland's counsel objected, and the trial court asked Joseph if he had a fixed opinion. Joseph responded that he did have a fixed opinion. Holland failed to move for a mistrial or to quash the venire at that time.

¶ 120. Later, after juror selection was complete, Holland moved for a mistrial and/or a quashing of the venire. Although the trial court denied Holland's motion, it instructed the jury not to rely on any pretrial statements as evidence.

¶ 121. This Court has reversed a case in which, during questioning by counsel, 65% of a potential jury stated that the defendant was guilty. Seals v. State, 208 Miss. 236, 247, 44 So.2d 61, 67-68 (1950). The Court referred to these potential jurors as an “array of men tell[ing] the court they thought this man guilty of murder ....” Seals, 208 Miss. at 250, 44 So.2d at 68. The Court also noted one chosen juror had already formed an opinion in this case. Seals, 208 Miss. at 247, 44 So.2d at 66. But see Porter v. State, 616 So.2d 899, 905-06 (Miss.1993) (even when 20 jurors expressed shock and distress by reports on defendant's actions, this Court found that since remaining jurors could be impartial, trial with this jury was proper).

¶ 122. Examining sister states' authority, we find that another court affirmed upon review of this issue, where a set of jurors at retrial either knew or had heard on voir dire from other jurors that the defendant had gone to jail and served time on this murder case for a previous conviction since reversed. State v. Thompson, 723 S.W.2d 76, 83-84 (Mo.Ct.App.1987). The Thompson Court held prior knowledge of the case did not per se disqualify the entire panel. Id. at 84. But see United States v. McIver, 688 F.2d 726, 729 (11th Cir.1982) (panel disqualified even if inadvertently exposed to conviction in related case). The Thompson Court also noted that the United States Supreme Court has held a juror's knowledge of past events in the case is permissible “if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id., citing Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2302-03, 53 L.Ed.2d 344 (1977), reh'g denied, 434 U.S. 882, 98 S.Ct. 246, 54 L.Ed.2d 166 (1977).

¶ 123. Returning to the case at bar, the jury panel answered throughout voir dire that they could set aside their prejudices and reach a decision on the evidence. There was no evidence at trial that the jurors even heard Joseph, as Holland did not ask to examine the jurors about the remark. The jurors were instructed that only evidence from witnesses could form the basis of their verdict. We find that Joseph's statement did not taint the jury venire. Since Holland demonstrated no evidence of prejudice, we hold that there was no error by the trial judge in refusing to quash the panel. West v. State, 463 So.2d 1048, 1054 (Miss.1985). The jury was subsequently properly instructed on their responsibility in determining Holland's proper sentence. There is no merit to this issue.

XXI. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTOR TO EXERCISE HIS PEREMPTORY CHALLENGES ON TWO POTENTIAL JURORS BASED ON THEIR VIEWS OF THE DEATH PENALTY?

¶ 124. Holland's failure to object waived the issue. Jones v. State, 517 So.2d 1295 (Miss.1987), vacated on other grounds, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988), overruled on other grounds by Willie v. State, 585 So.2d 660 (Miss.1991). Procedural bar notwithstanding, alternatively, on the merits, we find none. Had the issue been raised at the proper time and in the proper manner, it would be without merit. In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the United States Supreme Court held: The group of “ Witherspoon-excludables” involved in the case at bar differs significantly from the groups we have previously recognized as “distinctive.” “Death qualification,” unlike the wholesale exclusion of blacks, women, or Mexican-American fro[m] jury services, is carefully designed to serve the State's concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case both at the guilt and sentencing phases of the capital trial. There is very little danger, therefore, and McCree does not even argue, that “death qualification” was instituted as a means for the State to arbitrarily skew the composition of capital-case juries.

Finally, the removal [for] cause of “Witherspoon-excludables” in capital cases does not prevent them from serving as jurors in other criminal cases, and thus leads to no substantial deprivation of their basic rights of citizenship. They are treated no differently than any juror who expresses the view that he would be unable to follow the law in a particular case. Id. at 175-76, 106 S.Ct. at 1766 (emphasis added.)

¶ 125. The United States Supreme Court clearly held that it is permissible to strike a juror for cause on the grounds of his moral or religious opposition to the death penalty. Views regarding the death penalty do not make one a member of a distinctive class that is protected under Batson or its progeny. Holland failed to object to the peremptory strike of these two jurors at trial, based upon their views of the death penalty being in conflict with their morals. Therefore, he is procedurally barred from asserting this issue now. Irving, 498 So.2d at 318; Chase, supra; Foster, supra; Cole, supra.

XXII. DID THE TRIAL COURT ERR IN DENYING HOLLAND'S MOTION TO ENJOIN THE TESTIMONY OF DR. PAUL MCGARRY?

¶ 126. Holland failed to raise this objection during the guilt phase. See Holland v. State, 587 So.2d 848, 865-68 (Miss.1991) (discussing Holland's trial phase objections to Dr. McGarry's testimony, speculation not being one of them). As a result, Holland's objection is barred for not having been brought contemporaneously in the trial phase. Box v. State, 610 So.2d 1148, 1154 (Miss.1992). Since all trial evidence can be used in the sentencing phase, where relevant, the reintroduction of this evidence now raises no error. Hill v. State, 432 So.2d 427, 441 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).

¶ 127. The bar notwithstanding, alternatively considering the issue on the merits, Dr. McGarry's testimony was not rank speculation. The general standard of review for the admissibility of qualifications of an expert to testify to areas of scientific knowledge is abuse of discretion. Hall v. State, 611 So.2d 915, 918 (Miss.1992). The State demonstrated that Dr. McGarry's testimony fell within the bounds of forensic pathology by demonstrating that his expertise dealt with wounds, suffering, and the means of infliction of injury. Our caselaw, as well as that of other states, permits this type of testimony. Simmons v. State, 105 Miss. 48, 57, 61 So. 826, 828 (1913) (physician may testify as to effect of sexual intercourse upon child's female organs).

¶ 128. Discussion of pain by a forensic pathologist is admissible. Our caselaw has allowed forensic evidence to prove that a victim suffered a fatal heart attack as a result of trauma and stress induced by a beating and robbery. Whittington v. State, 523 So.2d 966, 976 (Miss.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988); Jackson v. State, 441 So.2d 1382, 1383 (Miss.1983).

¶ 129. Thus, in Mississippi, a forensic pathologist may testify as to what produced the injuries in this case and what trauma such an injury would produce.FN14 Given Dr. McGarry's qualifications in forensic pathology as well as that which the field of forensic pathology encompasses, we find that this assignment of error is without merit. FN14. Holland cites Harrison v. State, 635 So.2d 894, 902 n. 2 (Miss.1994), for the proposition that this Court has found Dr. McGarry's statements to be speculative. This argument is misleading as this Court only noted opposing evidence in that footnote without commenting on either side's credibility or competence to testify. Harrison, 635 So.2d at 902 n. 2.

XXIII. DID THE TRIAL COURT ERR IN SUSTAINING THE PROSECUTION'S OBJECTIONS TO DR. MARC ZIMMERMAN'S TESTIMONY; IN ALLOWING PORTIONS OF THE PROSECUTION'S CROSS-EXAMINATION OF DR. ZIMMERMAN, INCLUDING IMPROPER PROSECUTORIAL STATEMENTS AND QUESTIONS WITHOUT ANY BASIS IN FACT OR IN THE RECORD DURING DR. ZIMMERMAN'S TESTIMONY; AND IN ALLOWING THE PROSECUTION TO MAKE VARIOUS REFERENCES TO DR. ZIMMERMAN'S TESTIMONY IN CLOSING?

¶ 130. There are several assertions of error within this issue and the Court will address each one separately.

a) DID THE PROSECUTOR “TESTIFY” ABOUT EEGS AND BRAIN SCANS IN HIS QUESTIONING OF THE DEFENSE PSYCHOLOGIST?

¶ 131. Holland asserts that the prosecutor testified when he asked Dr. Zimmerman, the defense psychologist, certain questions in cross-examination. First, during voir dire of the witness, the prosecutor asked Dr. Zimmerman if he was a medical doctor. The prosecutor then stated, “When my car doesn't run I know it doesn't run, but I don't necessarily know what's going on in the engine....” The prosecutor was then interrupted by an objection. When asked by the trial court to what his questioning was leading, the prosecutor responded that “the point I'm making” is psychologists must rely on medical reports to determine the physical condition of the brain. The prosecutor then asked Dr. Zimmerman if he had to rely on medical reports to determine the physical condition of the brain. The trial court sustained the objection as going outside the purpose of determining the witness' qualifications.

¶ 132. Holland asserts that this questioning was error because our caselaw requires questions with evidentiary basis. Hosford v. State, 525 So.2d 789, 792 (Miss.1988). However, this assertion is distinguished from Hosford. First, the prosecutor in this case was arguing a point to the judge, not the jury, that psychologists were unable to discuss brain injuries, as opposed to offering evidence through questioning. Although the prosecutor's “car-engine” statement may have been testimony disguised as a question, this Court cannot evaluate the incident because it was cut short by Holland's objection.

¶ 133. Another alleged error arose when Dr. Zimmerman responded on cross that Holland's medical reports, indicating Holland was normal, did not rebut his tests indicating brain dysfunction because his tests and the medical report tests measured different things. The prosecutor responded, “They [the medical reports on EEGs and brain scans] measured the physical body and its function with an EEG and a brain scan, and let's go back to your tests. Now at the time that you first saw him was he intact with reality?” Holland did not object to these alleged errors; thus, we hold that they are procedurally barred from review absent plain error, which we decline to find. See Box v. State, 610 So.2d 1148, 1154 (Miss.1992).

¶ 134. Another incident arose when the prosecutor was apparently attempting to have Dr. Zimmerman admit that he relied upon brain scans and EEGs to determine physical dysfunctions of the brain. The prosecutor began to ask if the psychologist had “to rely on medical tests and diagnosis (sic) to understand the exact locus or existence of a particular brain injury?” The prosecutor then asked, “If a medical doctor has stated that there is a normal function here and a psychological test indicates some failure to perform to a standard ... do you expect that's a physical basis or a psychological basis?” The prosecutor withdrew his question on objection, but Holland failed to ask that the prosecutor's comment be disregarded. Even if this comment were objectionable, courts have held that failure to ask the jury to disregard the statement waives objection to the statement remaining in the record. Wade v. State, 490 N.E.2d 1097, 1104 (Ind.1986). We hold that the comment having been withdrawn required an objection with a request that the jury disregard. There was none, thus the statement is waived.

¶ 135. One alleged impropriety occurred when, in response to Dr. Zimmerman's stating he was not sure what the term “bad attitude” meant, the prosecutor stated, “You were sure on the phone the other day when I asked you that question.” On the merits, this Court has held that questions which are without evidentiary basis, “inflammatory and extremely prejudicial” cause reversible error. Hosford, 525 So.2d at 791-92. Since, arguably, the prosecutor would have been able to impeach Dr. Zimmerman with this line of questioning, we hold that this alleged error does not rise to the level of Hosford.

b) DID THE PROSECUTOR IMPROPERLY ARGUE ABOUT A CONTRADICTION BETWEEN THE BRAIN SCAN/EEG RESULT AND HOLLAND'S PSYCHOLOGICAL TEST SCORES, AS ADMINISTERED BY DR. ZIMMERMAN?

¶ 136. Holland asserts finally that the prosecutor's closing arguments highlighting the apparent contradiction between the brain scans and EEG reports, finding Holland normal, and the psychologist's testimony of abnormality, constitute error. Holland contends that because Dr. Zimmerman stated the brain scans are not designed to pick up all brain injuries, the contradiction was explained.

¶ 137. Prosecutors are limited to arguing facts introduced in evidence, deductions and conclusions that may be reasonably draw therefrom, and application of law to facts. Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991). With that limitation in mind, attorneys are permitted wide latitude in arguing their respective positions and theories to the jury. Campbell v. State, 437 So.2d 3, 5 (Miss.1983).

¶ 138. Evidence showed the brain scan and EEG results to be normal. This evidence was in conflict with the testimony of Dr. Zimmerman's, who stated that Holland's performance on neuropsychological tests indicated brain dysfunction. Dr. Zimmerman testified that there was no contradiction because the tests measured two different things. However, this testimony did not block the prosecutor from offering his theory that the brain scan and EEG results did show that Holland is normal, despite Dr. Zimmerman's own tests. Because the prosecutor's statements were based on fact, namely the tests themselves, we hold that there is no error in this issue.

c) DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN RESTRICTING THE TESTIMONY OF DR. ZIMMERMAN BY NOT ALLOWING HIM TO TESTIFY AS TO WHAT EEGS AND BRAIN SCANS MEASURE?

¶ 139. The trial court refused to permit Dr. Zimmerman to testify as to whether Holland has brain injuries, but did permit Dr. Zimmerman to testify as to what brain dysfunction or brain impairment Holland has. The trial court also refused to permit Dr. Zimmerman to testify as to what brain scans and EEGs measure, on the grounds that if Dr. Zimmerman could not read the test results, he could not testify as to what they report. The trial court instructed Holland's counsel to lay a predicate concerning Dr. Zimmerman's knowledge of brain scans and EEGs. Dr. Zimmerman responded that he was not trained to read the test results and began to tell the jury what the tests measure. The prosecution objected again, and the objection was sustained by the trial court.

¶ 140. Nevertheless, Dr. Zimmerman was able to state that his testing was of the mind rather than of the “brain's ability to function,” which is presumably what EEGs and brain scans measure. Dr. Zimmerman also testified that his psychological testing sometimes reveals brain dysfunctions when the EEGs and brain scans do not. Holland claims that the trial court's refusal to allow Dr. Zimmerman to testify as to brain injuries and to what brain scans and EEGs measure is reversible error.

¶ 141. The general standard in Mississippi law for determination of expert qualifications is abuse of discretion. T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 951 (Miss.1992). A person need not hold a medical degree to testify to medical matters if the area of questioning is otherwise within his field of expertise. T.K. Stanley, Inc., 614 So.2d at 951. The scope of that expertise covers all information in which the expert possesses “peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by laymen.” Henry v. State, 484 So.2d 1012, 1015 (Miss.1986).

¶ 142. Given this standard for expert testimony, it is clear that the trial court abused its discretion by not allowing Dr. Zimmerman to testify to what brain scans measure or to brain injury as opposed to brain dysfunction. Dr. Zimmerman was able to testify that his testing concentrated on the mind, as opposed to the physical function of the brain. It is clear that Dr. Zimmerman knew what brain scans and EEGs measure, and he got that point across to the jury. Second, psychologists have often been able to testify as to brain injury. Executive Car & Truck Leasing, Inc. v. DeSerio, 468 So.2d 1027, 1029 (Fla.Dist.Ct.App.1985); Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 886 (Iowa 1994).

¶ 143. The next question is whether this exclusion creates reversible error. Harmless error will result if the same evidence improperly excluded comes in by another means. Jackson v. State, 594 So.2d 20, 25 (Miss.1992). Harmless error also results if the evidence does not impinge upon a substantial right of the defendant. Russell v. State, 607 So.2d 1107, 1114 (Miss.1992), cert. denied, 519 U.S. 982, 117 S.Ct. 436, 136 L.Ed.2d 333 (1996).

¶ 144. Dr. Zimmerman was able to testify to brain dysfunction, and as Holland admits, brain dysfunction means brain injury. Therefore, Holland cannot complain that the trial court erred in not letting him use the term “brain injury” when the term “brain dysfunction” conveyed the exact same connotation to the jury. The same evidence improperly excluded came in by another means, through a different term, “brain dysfunction,” which renders any error harmless. See Jackson, 594 So.2d at 25.

¶ 145. As to the trial court's refusal to allow Dr. Zimmerman to testify as to what a brain scans and EEGs measure, arguably only harmless error resulted. Since Dr. Zimmerman testified to the distinction between what his tests and brain scans measure, the information was admitted into evidence, and we hold that this error becomes harmless. See Jackson, 594 So.2d at 25.

XXIV. DID THE TRIAL COURT ERR IN ALLOWING, OVER DEFENSE COUNSEL OBJECTION, PROSECUTORIAL MISCONDUCT?

¶ 146. Holland states that prosecutorial misconduct occurred several times in this case, resulting in reversible error. See Griffin v. State, 557 So.2d 542, 552-53 (Miss.1990).

¶ 147. First, Holland claims that the prosecutor commented on Holland's decision not to testify when the prosecutor stated that the forensic evidence was unquestionable. He also stated that the “witness to the rape was killed and that's Krystal.” There were no objections by Holland. We hold that the issue is, thus, procedurally barred. Chase, 645 So.2d at 854-55.

¶ 148. Procedural bar notwithstanding, alternatively we address the issue on the merits. The prosecutor's statement about the witness to the rape being killed is not error, but was instead a comment on the defense. In Alexander v. State, this Court upheld a prosecutor's statement about the decedent being a witness, as follows: “I submit to you that the only people who know what happened in there is Stephanie Alexander and God. The other person that was in the room can't talk, she's dead.” Alexander v. State, 610 So.2d 320, 339 (Miss.1992). This Court held the statement was proper in that it referred to an argument Alexander's counsel had made regarding the whereabouts of the blood from the murder. Id. The Court permitted the State to make the statement in reference to whom was a witness in answering that question. Id.

¶ 149. Here, Holland's counsel asked the jury to consider that if Holland was preventing apprehension by killing Krystal, why then did Holland not kill the others present in the house that night. We find that the prosecutor was entitled to answer that question by stating correctly that the only witness to the crime committed was Krystal King. This statement by the prosecutor was made in direct response to defense counsel's claim that because William Boyer and Jerry Douglas were two additional witnesses who knew of the crime, the prosecution's claim that Holland murdered Krystal in an effort to avoid arrest could not be submitted to the jury. The prosecutor was simply stating that both of these people were not present during the rape and that only Krystal was there.

¶ 150. A prosecutor, arguably, may comment on forensic evidence being unquestioned. This Court reversed a judgment where the prosecutor emphasized that the State's witnesses were unquestioned in their credibility. Whigham v. State, 611 So.2d 988, 995 (Miss.1992). There, the Court reversed because it found that the prosecutor's comments implicated Whigham's right not to testify to directly rebut the witnesses' statements. Id. at 996. In Whigham, this Court stated: Had defense counsel made this statement other than in answer to the opening argument of the State, the State might have plausible contention that he invited the closing remarks which followed, but this statement no doubt was made in response to the highly improper comments in opening argument. Id. at 995. In contrast, it is arguably difficult to see how Holland could have rebutted the forensic evidence directly, as it required expert witnesses to describe that evidence. Read broadly, however, Whigham is clearly inapplicable. The argument by the prosecutor here was made in response to closing argument by the defense. We hold that Whigham does not apply except to uphold our “plausible contention that [Holland] invited the closing remarks which followed.” Id.

b) WERE THE PROSECUTOR'S COMMENTS COMPLETELY BASED UPON EVIDENCE AND FACT?

¶ 151. The prosecutor asserted at closing argument that he was confused by the discrepancy between the EEG and brain scan readings, which were allegedly normal, and the findings on the Benton test. Holland then objected, stating that the prosecutor had mischaracterized the evidence, stating the normal readings indicated only that the EEG and brain scan readings meant nothing was found.

¶ 152. A prosecutor is entitled to argue inferences based upon the evidence at trial. Foster, 639 So.2d at 1290. The prosecutor's argument was based upon the evidence. It is true that Holland produced a psychologist who testified that the EEG and brain scan readings were not inconsistent with his test results. However, this evidence does not bar the prosecutor from arguing inferences contrary to the psychologist's testimony, as long as his argument is based upon the evidence.

¶ 153. Holland also objected to the prosecution's characterization of the defense as trying to prove Holland was “so drunk that they [didn't] know what they [were] doing.” Holland states that he was attempting to offer intoxication as a mitigator, in that Holland failed to appreciate the criminality of his conduct or could not conform his conduct to the requirements of law, as opposed to an insanity defense. See Miss.Code Ann. § 99-19-101(6)(f) (1994 rev.). Holland states the prosecutor's portrayal of his defense was a mischaracterization of the law.

¶ 154. It appears that the prosecutor's statements on this point were mischaracterizations of this mitigator. Holland was trying to assert through his mitigator that he could neither appreciate the criminality of his conduct nor conform his conduct to that of the law. The State's argument is that usage of such mitigator means Holland is arguing that he did not know what he was doing, which is a different standard.

¶ 155. In New Jersey, a trial court held that such a mischaracterization was curable if the trial court instructed the jury correctly later on the mitigating factors and their function. State v. Bey, 129 N.J. 557, 610 A.2d 814, 816 (1992), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995); see also People v. Moore, 47 Cal.3d 63, 252 Cal.Rptr. 494, 511-12, 762 P.2d 1218, 1235-36 (1988), cert. denied, 490 U.S. 1095, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989), reh'g denied, 494 U.S. 1050, 110 S.Ct. 1514, 108 L.Ed.2d 650 (1990).

¶ 156. The State's instruction S-1 correctly defined the mitigator which the prosecutor allegedly mischaracterized. As a result, this Court holds that the prosecutor's statement was cured by the trial court.

c) DID THE PROSECUTOR MISSTATE THE LAW, CAUSING REVERSIBLE ERROR?

¶ 157. Holland claims the prosecutor misstated the law. To reverse on a misstatement of law, there must first be a misstatement of the law, and second, the misstatement must make the trial fundamentally unfair. United States v. Goodapple, 958 F.2d 1402, 1409 (7th Cir.1992). Any statements may also be mitigated if the evidence is sufficient to support the jury's finding and the trial court instructs the jury that counsel's arguments are not evidence. United States v. Fierro, 38 F.3d 761, 771 (5th Cir.1994), cert. denied, 514 U.S. 1051, 115 S.Ct. 1431, 131 L.Ed.2d 312 (1995).

¶ 158. Holland claims five assertions of misstatements. First, the prosecutor stated that evidence showing Holland to be a victim of child abuse “doesn't excuse this, it doesn't go to mitigate this [this murder].” The prosecutor also stated that Holland's family wanting him to live and his mother's testimony on Holland's troubled childhood was “not mitigation, folks.” Holland failed to object to either comment on the grounds of misstatement of law, and this assignment of error is therefore barred under Harrison v. State, 635 So.2d 894, 903 (Miss.1994); Chase, supra; Foster, supra; Cole, supra.

¶ 159. Second, Holland objects to the prosecutor stating, “When you discuss all those items [of mitigation] you still have an obligation to go back and follow the law.” Third, Holland objects to the prosecutor stating, “[I]t is my strong contention that you can't do it under the sentencing instruction S-1, and you said that you would follow the law.” Fourth, Holland objects to the prosecutor acknowledging that it would not be fair to get someone to set aside their moral feelings. Holland did not object to any of these statements, and these assertions are, thus, procedurally barred from review. Box v. State, 610 So.2d 1148, 1154 (Miss.1992).

d) DID THE PROSECUTOR IMPROPERLY EXPRESS HIS PERSONAL OPINIONS?

¶ 160. Holland failed to object to the majority of these statements at trial. First, in response to the defense psychologist stating one cannot compare the results of two psychological tests, the prosecutor stated, “I'm confident that you can't, Doctor.” Second, the prosecutor in closing argument stated he “hate [s] to hear” that the defendant used a mitigator that he could not appreciate the criminality of his conduct. Third, the prosecutor stated that he “missed” the defendant's presentation of mitigating mental problems, and that the prosecutor could not personally “think of what the duress was,” which Holland allegedly claimed. Fourth, in closing argument, the prosecutor quipped “so what” to several of Holland's assertions of problems offered in mitigation. Fifth, the prosecutor exclaimed that he was glad that he didn't have to change the jury's mind about the sentence “because I think I'm probably in your way right now. I always have that feeling when I come up here.” Again, we hold that because Holland did not object to these statements, they are procedurally barred. Chase, 645 So.2d at 854-55.

¶ 161. Holland objected at trial only to the two following comments. These objections were on unrelated grounds, and thus are also procedurally barred. Harrison v. State, 635 So.2d 894, 903 (Miss.1994).

¶ 162. The prosecutor argued that Holland's defense of alcohol impairment and bad home life in childhood “was not mitigation, folks,” and did not go “to mitigate this.” On the merits, this Court has advised prosecutors not to use the pronoun “I” when arguing to a jury, so that a jury would not infer that “the prosecutor personally” feels a fact is true. Mack v. State, 650 So.2d 1289, 1321 (Miss.1994), cert. denied, 516 U.S. 880, 116 S.Ct. 214, 133 L.Ed.2d 146 (1995). Since the State did not use any words to tell the jury that the district attorney personally believed a fact was true, we hold that the comments were permissible. Mack, 650 So.2d at 1321.

e) DID THE PROSECUTOR IMPROPERLY INVOKE HIS POSITION AS THE GOVERNMENT'S ATTORNEY?

¶ 163. Holland did not object to the following comments at trial, and therefore they are procedurally barred. The prosecutor (1) stated that the death penalty scheme was being used “under an act that has been prosecuted by me since 1986,” (2) stated, “The State in this case, we've done our job. It's now in your hands,” and (3) stated in opening argument, “It is the position of the State that in this case the law allows and the facts demand a death penalty.”

¶ 164. The remaining three statements were objected to on grounds which are completely unrelated to this issue on appeal. Therefore, they are procedurally barred from review. Harrison, 635 So.2d at 903.

¶ 165. The district attorney stated, “I'm the chief law enforcement official for a three-county area. I take my job seriously.” He later stated, “I had the job of charging this crime. That has been reviewed, and we're here in court today because this is one of those rare cases.”

¶ 166. On the merits, it is improper for a district attorney, in argument to the jury, to use his position or function as a basis for convicting or more severely sentencing a defendant. United States v. Garza, 608 F.2d 659, 663 (5th Cir.1979). More specifically, a prosecutor may not comment on the fact that he has “only sought death in rare instances such as this one.” Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir.1985), vacated on unrelated grounds, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987). This argument implies that the district attorney has made the judgment already and that his decision should be binding and persuasive to the jury. Brooks, 762 F.2d at 1410.

¶ 167. This error does not automatically result in reversal. This statement is reviewed to see the magnitude of prejudice, the effectiveness of the curative instruction, and the strength of the evidence of the defendant's guilt. United States v. Goff, 847 F.2d 149, 165 (5th Cir.1988), cert. denied, Kuntze v. U.S., 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988). The trial court and the prosecutor told the jury that it was the jury's decision to determine Holland's punishment. The prosecutor told jury “it's just your decision.” As such, error, if any, was cured. State v. Bey, 610 A.2d at 816 (N.J.1992). The Eleventh Circuit found this information sufficient to lessen the magnitude of prejudice to a level below that requiring reversal. Brooks, 762 F.2d at 1413-14. Holland's guilt is not at issue. Therefore, the prosecutor's statements do not rise to reversible error.

¶ 168. More importantly, the statements in the case at bar, made during sentencing phase of the trial, are taken from different paragraphs in the record and were not made consecutively. They have been taken out of context. It is imperative that the statements be read in their appropriate context in light of that which the prosecutor was in fact arguing to the jury at the time. First, regarding the prosecutor's claim to be the chief law enforcement official who takes his job seriously, the prosecutor was talking about “whose responsibility it is that we are here today.” The prosecutor went on to explain, “The actions of Gerald James Holland put him here. Not his daddy's.” It is clear that the prosecutor was simply arguing that Holland's actions alone were responsible for him being on trial for capital murder, rather than the actions of “dysfunctional” family members.

¶ 169. Regarding the prosecutor's second statement that his job was to charge the crime, that such had been reviewed, and that the case was before the court because of “one of those rare cases,” it is clear that this statement does not affect the sentencing phase of trial. Holland might have a valid argument had this statement been made during the guilt phase. Such is not the case here. The prosecutor was merely stating that Holland had been charged with the crime and had been found guilty by the jury, thereby creating one of the rare cases which could warrant the jury in returning the death penalty. The statement does not imply that death was the only sentence, nor does it imply that the prosecutor had already determined that the sentence should be death. The prosecutor stated, “Does that mean it's tough, sure it's tough. Does it mean it's just your decision, yes, it's just your decision.” Clearly, the jury had two choices in sentencing, and this jury was simply told that the decision was theirs to make.

¶ 170. Finally, defense counsel did object to the prosecutor's statement that “it's an act that has been prosecuted by me since 1986,” but stated in the process, “ I don't know if he's synopsizing evidence or making testimony.” Although the objection is somewhat unclear, the trial judge instructed counsel “to base any legitimate objection on the law and not on facts.” Here, the prosecutor was simply stating that he had been prosecuting under the law for many years and that he proceeds not upon his own personal beliefs, but rather upon the requirements of the law. This statement does not imply that Holland should automatically be sentenced to death. This issue is procedurally barred in part, and alternatively considered on the merits, there are none.

f) DID THE PROSECUTOR IMPROPERLY DISCUSS VICTIM-IMPACT EVIDENCE?

¶ 171. The prosecutor stated that Holland's actions had victimized the family of “Krystal King everyday.” Holland objected, but his objection was to an earlier comment that Holland's actions had victimized his own family because of his murdering another person. Since Holland's objection was not specific, this Court applies the procedural bar to these issues. Harrison, 635 So.2d at 903.

¶ 172. Alternatively, procedural bar notwithstanding, considering the issue on the merits we find no merit to Holland's contentions. Holland asserts that the trial court's allowing the prosecutor's statement left him unable to assert evidence in rebuttal on victimization. Holland argues that he could have found evidence of abuse against Krystal by her family. The first problem is that Holland did not object specifically to this issue, thus barring review. Id. Second, without a proffer of what Holland's new evidence would have been, this Court cannot consider the appeal in an informed manner. Wirtz v. Switzer, 586 So.2d 775, 784 (Miss.1991). Therefore, we find this issue is without merit.

g) DID THE PROSECUTOR LESSEN THE JURY'S RESPONSIBILITY FOR DETERMINING HOLLAND'S SENTENCE?

¶ 173. Holland claims the prosecutor erred by stating that the prosecution “expect[ed] you [the jury] to do the right thing.” In addition, in response to defense counsel's assertion that the jury would always remember Holland if they voted for death, the prosecutor stated the jury would remember that “you did your duty to the community.” The United States Supreme Court stated such comments have “no place in the administration of justice,” but also found such errors harmless under the circumstances. United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 1047-48, 84 L.Ed.2d 1 (1985). Courts reviewing this question have agreed that if such an appeal to civic duty is error, it is harmless. People v. Wash, 6 Cal.4th 215, 24 Cal.Rptr.2d 421, 450, 861 P.2d 1107, 1136 (1993), cert. denied, 513 U.S. 836, 115 S.Ct. 116, 130 L.Ed.2d 62 (1994); Byrd v. Commonwealth, 825 S.W.2d 272, 276 (Ky.1992); People v. Kirkland, 199 A.D.2d 54, 605 N.Y.S.2d 27, 28 (N.Y.App.Div.1993).

¶ 174. The prosecutor also stated that he had the job of “charging this crime,” and that Holland was being tried for capital murder because “this was one of those rare cases.” Holland did not object to this comment contemporaneously, and the issue is procedurally barred. See, Box v. State, 610 So.2d 1148, 1154 (Miss.1992).

¶ 175. Additionally, the following statements are procedurally barred for lack of objection: (1) the prosecutor's statement that the death penalty was “under a law passed and adopted and approved in the United States of America and the State of Mississippi,” (2) the prosecutor's statement that imposing the death penalty was “the right thing” to do, (3) the prosecutor's statement that the death penalty was “the only just verdict in this case,” and (4) the prosecutor's statement that “it is my strong contention that you can't [grant the defendant mercy] under the sentencing instruction S-1, and you said that you would follow the law.” Box, 610 So.2d at 1154.

h) DID THE PROSECUTOR MAKE A PREJUDICIAL COMMENT ABOUT DEFENSE COUNSEL?

¶ 176. Holland asserts that the following statement, made by the prosecutor, was error. The prosecutor stated on rebuttal at closing argument, “I heard counsel for the defense, and I certainly don't criticize them, they have a tough job. It's very tough to defend him [Holland] even against the death penalty given the facts in this case.”

¶ 177. Holland argues that this statement falls under a prohibited class of prosecutorial misconduct, where a prosecutor's actions deflect the attention of the jury from the real issues in the case. See Hickson v. State, 472 So.2d 379, 384 (Miss.1985).

¶ 178. Holland's cited cases, however, involve conduct far more egregious than any of the conduct complained about in the case at bar. Hickson involved a prosecutor's display of the severed hands of the decedent, which was unduly prejudicial since the prosecution never attempted to properly introduce them at trial. Hickson, 472 So.2d at 384. In Griffin v. State, the prosecutor directly commented on defendant's failure to testify, which is clearly reversible error. Griffin v. State, 557 So.2d 542, 552 (Miss.1990).

¶ 179. The Fifth Circuit has reviewed a case where a prosecutor allegedly attacked defense counsel in his closing argument. United States v. Jennings, 724 F.2d 436, 444 (5th Cir.1984), cert. denied, 467 U.S. 1227, 104 S.Ct. 2682, 81 L.Ed.2d 877 (1984). The Fifth Circuit held that such statements are permissible, where made for a valid reason. Jennings, 724 F.2d at 444. Here, the prosecutor merely made his statement to assert that Holland's defense was very weak. We hold that this argument was clearly proper for the prosecutor to make, and this assignment of error is without merit.

XXV. DID THE TRIAL COURT ERR IN OVERRULING HOLLAND'S MOTION TO HAVE CERTAIN COLOR PHOTOGRAPHS OF THE VICTIM CHANGED TO BLACK AND WHITE PHOTOGRAPHS, AND IN OVERRULING HOLLAND'S OBJECTIONS TO THE ADMISSION OF CERTAIN COLOR PHOTOGRAPHS?

¶ 180. Even on the merits, Holland's argument fails. Holland claims that the trial court erred in admitting the photographs of the victim into evidence and in failing to grant his motion to change the photographs to black and white photographs. The motion to exclude these photographs is barred by the doctrine of res judicata, and the motion to change the photographs to black and white is without merit.

¶ 181. The photographs in question, Exhibits 14, 42,43, 44, 45, 46, 47, 48, and 49, were introduced during the guilt phase of Holland's first trial. Holland did not challenge their introduction at the guilt phase of that trial on appeal to this Court. This claim is res judicata. Jordan v. State, 518 So.2d 1186, 1189 (Miss.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988). Holland accepted the trial court's ruling on this issue at the guilt phase of this trial by not raising any claim of error relating to them on appeal. This portion of this claim is barred by the doctrine of res judicata. This issue cannot be relitigated on this appeal.

¶ 182. Holland has cited no authority holding that the photographs should be changed to black and white from color. Without the citation of authority this claim is without merit. Roberson, supra. The color photographs were admitted during the guilt phase of first trial, and that portion of the trial was not reversed.

¶ 183. In addition, Holland stated during the motion hearing that he did not object to the photographs if they were changed to black and white. When the State sought to introduce the photographs at trial, Holland objected again claiming that they were not relevant to the aggravating circumstances, were not probative of anything and were inflammatory. The trial court held that the photographs were probative and would be admitted.

¶ 184. The two guidelines for admission of “gruesome” photographs, as given in McNeal v. State, 551 So.2d 151, 159 (Miss.1989), are “(1) whether the proof is absolute or in doubt as to the identity of the guilty party, (2) whether the photos are necessary evidence or simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.” The standard of review on this issue is abuse of discretion. See, Griffin v. State, 557 So.2d 542, 549 (Miss.1990).

¶ 185. Again, it is clear that the proof identifies Holland as the guilty party, based not only upon the conviction, but also upon Holland's confession and the physical evidence. Holland, 587 So.2d at 851-74. Second, the evidence is relevant to establish that the murder was committed during the commission of a rape, and to prove the heinous, atrocious, and cruel aggravator. See Shell v. State, 554 So.2d 887, 902 (Miss.1989), rev'd in part on unrelated grounds by Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990).

¶ 186. Photographs are admissible in the discretion of the trial court, and this Court will not reverse absent an abuse of discretion. Givens v. State, 618 So.2d 1313, 1317 (Miss.1993). In Parker v. State, 514 So.2d 767, 771 (Miss.1986), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988), this Court stated, “Some ‘probative value’ is the only requirement needed to buttress a trial judge's decision to allow photographs into evidence.” Here, the photos were probative of the “especially heinous” aggravating factor in this case as well as to the testimony of Robert Burris, Jerry Douglas and Dr. Paul McGarry. See Shell v. State, 554 So.2d at 902. There is no violation of this Court's ruling in McNeal regarding the photographs in question, all of which had already been introduced into evidence during the guilt phase of the trial. The trial court properly allowed the introduction of these photographs. First under Jackson v. State, 337 So.2d 1242 (Miss.1976), this Court set out the procedures for the conduct of a sentencing proceeding with bifurcation. In regards to the presentation of evidence at the sentencing phase, the Court held: At the sentencing hearing, the question to be decided by the jury is whether the defendant shall be sentenced to death or to life imprisonment. At this hearing, the State may elect to stand on the case made at the first hearing, if before the same jury, or may reintroduce any part of the evidence adduced at the first hearing which it considers to be relevant to the particular question of whether the defendant shall suffer death or be sentenced to life imprisonment. Id. at 1256. (emphasis added)

¶ 187. As understood by the trial court and the State, this procedure set forth in Jackson has remained accepted procedure in the trial of death penalty cases even after the adoption of the statutory scheme by the legislature. Hill v. State, 432 So.2d, 427, 441 (Miss.), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983); In re Jordan, 390 So.2d 584, 585 (Miss.1980); Irving v. State, 361 So.2d 1360, 1367 n. 1 (1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). The State reintroduced this evidence during the sentence phase of this trial conducted after remand. There is no merit to this issue.

¶ 188. Holland asserts that the trial court mentioned to the victim's family that such families usually sit behind the prosecution. Holland asserts that the trial court's comments were participation on behalf of the State, constituting reversible error. West v. State, 519 So.2d 418, 422-24 (Miss.1988).

¶ 189. We hold that this issue is procedurally barred because Holland did not object to this occurrence at trial. Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995); Chase, supra; Cole, supra.

¶ 190. Additionally, it is noted that Holland made no record of whether anyone got up and moved after the trial judge's comment. Thus, because the record is insufficient on this matter, no determination of this claim can be made. This court held in Burney v. State: This Court has stated that “[w]e have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief ... ” Mason v. State, 440 So.2d 318, 319 (Miss.1983). And, further, “to the appellant falls the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal.” Robinson v. State, 345 So.2d 1044, 1045 (Miss.1977). Accord Baugh v. State, 388 So.2d 141, 143 (Miss.1980); Rhodis v. State, 349 So.2d 1046, 1047(Miss.1977). Therefore, we find these three assignments without merit. 515 So.2d 1154, 1160 (Miss.1987).

¶ 191. Procedural bar notwithstanding, alternatively, this argument is specious. Again, the statement is taken out of context. The trial judge's comment occurred in the context of the discussion of a note sent to the court by one of the jurors during a recess. The juror informed the court that another juror thought she recognized someone she knew in the audience in the courtroom and was concerned that this person might be a witness. The prosecutor advised the court that none of the State's witnesses were seated in the courtroom. The court was still concerned that the juror “might feel that they're related one way or the other to the parties.” The court ultimately brought the juror, Ms. Viger, into the courtroom out of the presence of the other jurors and assured her that the person she was concerned about, Ms. Thigpen, “if [she] were in the audience and if she's in here now, she's just a party in interest-a citizen in interest. She's not related to either the victim or the accused, I should say the defendant, she's not a witness.”

¶ 192. The trial court was clearly not informing the family of the victim or, for that matter, the defendant where to sit, but rather, was making a comment on what usually happened during a trial. Here, the court made no attempt to assist either the State or the defense, but merely addressed in a practical, common sense manner, a problem posed to the trial judge by a juror. The comment does not remotely approach the actions of the trial court in West v. State, 519 So.2d 418 (Miss.1988). The claim is procedurally barred and alternatively without merit.

XXVII. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY THAT IT COULD NOT CONSIDER SYMPATHY IN DETERMINING HOLLAND'S SENTENCE?

¶ 193. The trial court instructed the jury in C-1 that it could not be influenced by bias, sympathy, or prejudice, and that the verdict could not be based upon speculation, guesswork or conjecture. Holland states that this instruction was error. See Pinkney v. State, 538 So.2d 329, 351 (Miss.1988), vacated on other grounds by Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). Holland's proposed instruction left out the word sympathy.

¶ 194. Recent Mississippi caselaw permits a C-1 type instruction if the instruction does not totally shut off consideration of sympathy. Willie v. State, 585 So.2d 660, 677 (Miss.1991). This Court has also held that the use of the words “not to be influenced by sympathy” does not mean that the jury is instructed to disregard sympathy. Ladner v. State, 584 So.2d 743, 759 (Miss.1991), cert. denied, 502 U.S. 1015, 112 S.Ct. 663, 116 L.Ed.2d 754 (1991).

¶ 195. We note that the State contends that the trial court was correct to allow the sentencing instruction under Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), reh'g denied, 495 U.S. 924, 110 S.Ct. 1960, 109 L.Ed.2d 322 (1990), which was adopted by this Court in Jenkins v. State, 607 So.2d 1171 (Miss.1992). In Saffle, the trial court gave the following instruction: You are the judges of the facts. The importance and worth of the evidence is for you to determine. You must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor when imposing sentence. You should discharge your duties as jurors impartially, conscientiously, and faithfully under your oaths and return such verdict as the evidence warrants when measured; by these Instructions. Saffle, 494 U.S. at 487, 110 S.Ct. at 1259.

¶ 196. The United States Supreme Court found no problem with this instruction, which eliminates the element of sympathy from juror determination more clearly than Holland's instruction. The reasoning behind the acceptance of such instructions is set forth in Saffle: It is no doubt constitutionally permissible, if not constitutionally required, [citation omitted] for the State to insist that “the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence.” California v. Brown, 479 U.S. [538] at 545, 107 S.Ct. 837 [at 841], 93 L.Ed.2d 934 (O'Connor, J., concurring). Whether a juror feels sympathy for a capital defendant is more likely to depend on that juror's own emotions than on the actual evidence regarding the crime and the defendant. It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary. [citations omitted] Saffle, 494 U.S. at 492-93, 110 S.Ct. at 1262-63.

The State must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whims or caprice [citations omitted] Id. at 493, 110 S.Ct. at 1263. The objectives of fairness and accuracy are more likely to be threatened that promoted by the rule allowingthe sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional chord in a juror. Id. at 495, 110 S.Ct. at 1264.

¶ 197. The Saffle rationale was adopted by this Court in Jenkins v. State, 607 So.2d at 1181 and more recently in Foster v. State, 639 So.2d at 1300.

¶ 198. In addition, the United States Supreme Court has also approved a similar anti-sympathy instruction, directing a juror not to be swayed by “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling,” since relying on mere sympathy “divorced from the evidence” would be improper. California v. Brown, 479 U.S. 538, 542-43, 107 S.Ct. 837, 839-40, 93 L.Ed.2d 934 (1987).

¶ 199. This instruction's language stated that the jury should not be influenced or swayed, and it did not use the word “mere sympathy” in describing sympathy. Since this Court stated that usage of the term “not to be influenced” did not shut off all ability to sympathize, this instruction is not erroneous. See Ladner, 584 So.2d at 759. Under both state and federal caselaw, the instruction was proper. There is no merit to this issue.

XXVIII. DID THE JURORS FIND ANY AGGRAVATING CIRCUMSTANCES BEYOND A REASONABLE DOUBT?

¶ 200. Holland objects to the form of the verdict in this question, which did not state the aggravators were found “beyond a reasonable doubt.” However, he did not object to the form of this verdict at trial, Sentencing Instruction S-1, thus barring appeal on that issue. Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g denied, 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989). Holland raised the issue for the first time in the motion for new trial; thus, the objection comes too late. The verdict form was included in Instruction S-1, to which Holland, at the time, made no objection. Any objection should have been made when the instructions were being considered. Chase, supra; Foster, supra; Cole, supra. Acevedo v. State does not help Holland, since it discusses the specificity of an objection being no bar, not the lack of any objection whatsoever. Acevedo v. State, 467 So.2d 220, 223-24 (Miss.1985).

¶ 201. Procedural bar notwithstanding, alternatively, considering the issue on the merits, there are none. The failure of the verdict form to contain the words “beyond a reasonable doubt” is not fatal. The jury was told that they had to find aggravating circumstances beyond a reasonable doubt. The verdict form contained a bracketed statement that the jury was to list only those aggravating circumstances that they found “beyond a reasonable doubt.” Here, under no scenario can Holland claim that this jury did not find the aggravating circumstances beyond a reasonable doubt. The verdict of the jury is sufficient if it simply states that the jury finds the defendant guilty of capital murder. This claim is barred for failure to object and is, alternatively, wholly without merit.

XXIX. DID THE TRIAL COURT ERR IN REFUSING HOLLAND'S PROPOSED INSTRUCTIONS?

¶ 202. Holland asserts that the denial of his instructions D-5, D-6, D-21, D-25, D-30, and his original D-22, was error. Each instruction is handled separately.

a) D-5-RIGHT NOT TO TESTIFY INSTRUCTION

¶ 203. D-5 basically states that a defendant has a right not to testify. The trial court agreed to submit an edited version, containing only the first sentence. The trial court thought the remainder of the instruction was speculative because the reasons Holland would not testify, such as being inarticulate, were not supported by the record. Holland drew heavily on the instruction discussed in Hansen, 592 So.2d at 148 n. 17. Holland's attorneys stated the defense wanted D-5 as is, or completely refused. The trial court did not instruct the jury on the right not to testify.

¶ 204. Two questions arise. First, are the last sentences in D-5 objectionable, and, second, can a defendant waive his right-not-to-testify instruction? Mississippi case law will not permit an instruction without credible evidence supporting its premise. Hicks v. State, 580 So.2d 1302, 1306 (Miss.1991). However, this denial can arise only if the trial court can find that a hypothetical reasonable jury could not find in favor of the defendant's issue, taking all evidence and inferences in favor of the defendant. Anderson v. State, 571 So.2d 961, 964 (Miss.1990). There was no evidence presented of Holland's being inarticulate or being ill-at-ease around a jury. There was also no evidence indicating that any brain impairment or dysfunction Holland might have would adversely affect his ability to testify. Accordingly, that part of the instruction could be properly stricken.

¶ 205. The next question is whether the instruction on the right not to testify is waivable. Mississippi has stated that such explanatory right to testify instructions, exactly like this one, are properly refused unless the trial court abused its discretion in denying it. Hansen, 592 So.2d at 148-49. This Court stated that a defendant is not “of right” entitled to that specific instruction. Id. at 149.

¶ 206. The United States Supreme Court has not answered this question, but two Justices have stated in two separate opinions that this instruction is the defendant's to waive. Lakeside v. Oregon, 435 U.S. 333, 347-48, 98 S.Ct. 1091, 1098-99, 55 L.Ed.2d 319 (1978) (Stevens, J., dissenting); see also Carter v. Kentucky, 450 U.S. 288, 307, 101 S.Ct. 1112, 1122, 67 L.Ed.2d 241 (1981) (majority opinion holding reversible error results when trial court refuses right not to testify instruction at defendant's request).

¶ 207. Other states have held such an instruction is waivable. Hardaway v. State, 317 Md. 160, 562 A.2d 1234, 1237 (1989); see Van Evey v. State, 499 N.E.2d 245, 246-47 (Ind.1986). As a result, there is sufficient legal support for determining the trial court could allow the defense to waive that instruction.

b) D-6-AGREEMENT IN REASONABLE TIME INSTRUCTION

¶ 208. Holland next argues that D-6 should have been given, which basically states that Holland would get life imprisonment if the jury could not agree within a reasonable time.

¶ 209. This Court has already approved a jury instruction discussing the procedure to find for or against the death penalty, which did not include the reasonable time language found in Miss.Code Ann. § 99-19-103 (1994 rev.); King v. State, 421 So.2d 1009, 1018 (Miss.1982), cert. denied, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983), vacated in part on other grounds, 656 So.2d 1168 (Miss.1995). The King Court did allude to the reasonable time procedure, which the trial court had to follow, but did not require its inclusion. King, 421 So.2d at 1009. Therefore, it is arguable that the trial court could indeed bar this instruction.

c) D-21-GRANT OF LIFE DESPITE FINDING OF AGGRAVATING FACTORS.

¶ 210. Holland asserts that the trial court improperly denied D-21. The trial court denied D-21 on grounds of repetitiveness with S-1.

¶ 211. S-1, part B, states that only the introduced aggravating factors may be considered by the jury, to be determined only by a beyond-a-reasonable-doubt standard. This part mirrors the first paragraph of D-21. The remainder of S-1, part B, instructs the jury that should they find the mitigating circumstances outweigh the aggravating circumstances, they must find for life imprisonment. This point slightly varies from D-21, which states that a jury can find for life imprisonment if they find the aggravators are insufficient to justify death.

¶ 212. However, Holland travels under an argument that anti-sympathy instructions are improper. This Court has approved the grant of this instruction, where approved by the trial court. Tokman v. State, 435 So.2d 664, 671 (Miss.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984), abrogated on other grounds by Willie v. State, 585 So.2d 660, 680-81 (Miss.1991). This Court has also stated a trial court may deny the instruction. Hansen, 592 So.2d at 150. Holland argues the result is an arbitrary set of courts which allow the instruction and a set which do not, triggering a due process violation. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980) (generally stating defendants may not be arbitrarily deprived of their liberty interests under the Fourteenth Amendment).

¶ 213. The Seventh Circuit has held that rules which do not grant an entitlement do not create a due process property interest. Miller v. Henman, 804 F.2d 421, 427 (7th Cir.1986), cert. denied, 484 U.S. 844, 108 S.Ct. 136, 98 L.Ed.2d 93 (1987). Since under this Court's caselaw, Holland is not entitled to instructions on sympathy, he has no due process claim.

d) D-22-MITIGATING FACTORS INSTRUCTION

¶ 214. Holland also asserts that denial of the original D-22 was error. The amended D-22 omitted the part of the original D-22 which stated, “You must find a mitigating circumstance if it is proven by a preponderance of the evidence.”

¶ 215. Holland cites no support for his assertion. Accordingly, it is barred under Kelly v. State, 553 So.2d 517, 521 (Miss.1989). Furthermore, alternatively, considering the merits of this issue, this Court's holding in Conner v. State, 632 So.2d 1239, 1271-72 (Miss.1993), cert. denied, 513 U.S. 927, 115 S.Ct. 314, 130 L.Ed.2d 276 (1994), expressly refused to find error in an instruction which did not give the exact burden of proof for mitigating factors. Thus, there is no merit to this issue.

e) D-25-INSTRUCTION PERMITTING LIFE IMPRISONMENT EVEN WITHOUT MITIGATING FACTORS.

¶ 216. Holland argues that denial of this instruction was error. Holland asserts that this instruction, as with all mercy instructions, is properly admissible under Mississippi law. See, e.g., Tokman v. State, 435 So.2d at 671. Again, Holland states that even if this Court rejects his view on mercy instructions, due process requires a consistent application of law on this issue, which is not present now.

¶ 217. This mercy argument is the same as with Instruction D-21. We have previously discussed fully mercy instructions, and this instruction will be resolved on the same premise as that of D-21. There is no merit to this issue.

f) D-30-REASONABLE DOUBT INSTRUCTION.

¶ 218. Holland asserts that denial of his reasonable doubt instruction was error. Holland asserts that this instruction is a “standard instruction.” This Court has expressly disapproved Holland's language in this instruction as argumentative and abstract. Giles v. State, 501 So.2d 406, 409 (Miss.1987); Hunter v. State, 489 So.2d 1086, 1089 (Miss.1986); see also Edwards v. State, 594 So.2d 587, 592-93 (Miss.1992) (holding defendant not entitled to instruction asserting defendant is not guilty if jury cannot find elements beyond a reasonable doubt, where jury is otherwise properly instructed on reasonable doubt).

¶ 219. Holland asserts in his reply brief that the trial court nevertheless had a duty to correct his instruction. Rainer v. State, 473 So.2d 172, 174 (Miss.1985). However, in light of the fact that this Court has repeatedly approved of the striking of this instruction altogether, there is no problem in not reforming this instruction. There is no merit to this issue.

XXX. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY ON THE AGGRAVATING CIRCUMSTANCE THAT THE OFFENSE WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR PREVENTING A LAWFUL ARREST; WAS THERE SUFFICIENT EVIDENCE TO CONVINCE A REASONABLE JUROR OF THIS AGGRAVATING CIRCUMSTANCE BEYOND A REASONABLE DOUBT UNDER JACKSON v. VIRGINIA, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) FN15? FN15. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) discusses the standard for sufficiency of the evidence.

¶ 220. Holland claims the trial court erred in granting the avoiding arrest instruction. The suggestion of error in instruction, and the insufficiency of the evidence question, arise from the same issue. They are discussed together. Holland asserts that this aggravator was improperly given, since a “substantial reason” for the murder was not to conceal the identity of the killer or avoid apprehension by authorities. See Leatherwood v. State, 435 So.2d 645, 651 (Miss.1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984). Here, Holland asserts that the steps taken to conceal the evidence after Krystal's death are irrelevant since the wish to avoid arrest must be a substantial reason for the killing.

¶ 221. Holland overlooks the fact that the jury may infer that Holland killed Krystal in order to avoid arrest, based upon the physical evidence. Dr. McGarry testified that the placement of Krystal's panties down her throat occurred shortly after her rectal and vaginal injuries and about the same time as the strangulation. Krystal was alive after the rape, according to Dr. McGarry's testimony. Why then was she killed? Holland silenced any cries for help by stuffing her panties down her throat. The obvious inference that could be drawn by the jury was that Holland killed Krystal to silence her permanently so that she would not report him as the rapist. The post-mortem actions reinforce this conclusion. Holland mutilated Krystal's genital area so that if her body were found, authorities would think some “sex fiend” had committed the crime. Again, the inference is that such action was calculated to avoid detection and to throw off the officers in their quest to determine who murdered and raped Krystal.

¶ 222. In a similar case, this Court held that the presence of sexual injuries, where the victim died of drowning, justified the jury in finding “beyond a reasonable doubt that the child had been killed maliciously by [the defendant] ... for the purpose of silencing her outcries or preventing the report by her of acts of molestation.” Gray v. State, 375 So.2d 994, 1004 (Miss.1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980), reh'g denied, 448 U.S. 912, 101 S.Ct. 30, 65 L.Ed.2d 1174 (1980). Given Gray, it is clear that jurors are entitled to make the logical connection between the injuries suffered and finding an inference that the defendant murdered his victim to avoid arrest. In addition, all of Holland's actions to avoid arrest after Krystal's death would be relevant to this aggravator since it was “part of the entire transaction constituting the crime,” also known as res gestae. Wade v. State, 583 So.2d 965, 967 (Miss.1991).

¶ 223. The standard of review for sufficiency of the evidence is to affirm the conviction unless “no reasonable hypothetical juror” could reach a guilty verdict under the evidence presented. Pierre v. State, 607 So.2d 43, 54 (Miss.1992). Our caselaw allows physical injuries suffered by the victim and res gestae to give rise to an inference that the murder was committed to avoid arrest. In Chase v. State, 645 So.2d 829 (Miss.1994), cert. denied 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995), the Court again asserted the principal that the evidence within the record must be substantial and sufficient to support the giving of the instruction. The giving of the avoiding arrest instruction is not predicated upon avoidance of arrest being the only reason or primary reason for the killing, but rather just a substantial reason for the killing. Chase, 645 So.2d at 858. Here, there is sufficient evidence to support the use of this aggravator.

¶ 224. Holland asserts that this aggravator deserves some sort of limiting instruction, although he does not specify how it should read. This Court has repeatedly held that a limiting instruction is not required. Chase, 645 So.2d at 858; Hansen, 592 So.2d at 152-53. There is no merit to this issue.

XXXI. WAS THE TRIAL COURT'S SUPPOSEDLY LIMITING INSTRUCTION WITH RESPECT TO THE ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATING CIRCUMSTANCE UNCONSTITUTIONALLY VAGUE AND OVERBROAD?

¶ 225. Holland objected to the State's Sentencing Instruction No.2, describing the heinous, atrocious and cruel aggravator. A plurality of the United States Supreme Court has noted that the Court would reject Mississippi's heinous, atrocious, and cruel jury instruction without a valid limiting statement. Clemons v. Mississippi, 494 U.S. 738, 757, 110 S.Ct. 1441, 1453, 108 L.Ed.2d 725 (1990) (Blackmun, J., concurring in part, dissenting in part, with three Justices joining), citing Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 1858-59, 100 L.Ed.2d 372 (1988).

¶ 226. This Court has since reviewed heinous, atrocious and cruel aggravators to ensure their validity under Maynard and Clemons. We have affirmed the use of this aggravator, as long as the State limits and defines this aggravator by stating “the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies-the conscienceless or pitiless crime which is unnecessarily tortuous to the victim.” Lockett v. State, 614 So.2d 888, 896 (Miss.1992), cert. denied, 510 U.S. 1040, 114 S.Ct. 681, 126 L.Ed.2d 649 (1994), reh'g denied, 510 U.S. 1173, 114 S.Ct. 1212, 127 L.Ed.2d 559 (1994). Lockett also required the definition of heinous, atrocious, and cruel as being “a conscienceless or pitless [sic] crime which is unecessarily [sic] torturous to the victim.” Lockett, 614 So.2d at 896.

¶ 227. In this case, we find that Instruction S-2 tracked this language in its own definition of heinous, atrocious, and cruel. Therefore, like Lockett, this Court affirms this issue as being without merit. Id. at 896.

WAS THERE CUMULATIVE ERROR IN THIS ISSUE?

¶ 228. Holland asserts that our caselaw will allow a cumulation of otherwise harmless error to result in reversal. See Jenkins v. State, 607 So.2d 1171, 1183-84 (Miss.1992); Griffin v. State, 557 So.2d 542, 552-53 (Miss.1990); see also United States v. Garza, 608 F.2d 659, 665 (5th Cir.1979).

¶ 229. This Court has addressed each of Holland's claims of prosecutorial misconduct and has applied the procedural bar to many. Alternatively, considering the issues on the merits we have determined that each alleged error is wholly without merit. Thus, there can be no cumulative error that would cause reversal. Foster v. State, 639 So.2d 1263 (Miss.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995). Here there are simply no errors, hence “[t]wenty times zero equals zero.” Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir.1987).

CONCLUSION

¶ 230. Having completely examined and discussed all issues, finding some procedurally barred or waived and, alternatively, without merit and the remainder wholly without merit, we affirm Holland's sentence of death.

PROPORTIONALITY REVIEW

¶ 231. This Court must determine whether 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 rev.). When the sentence is disproportionate, this Court may “set the sentence aside and remand the case for modification of the sentence to life imprisonment.” Miss.Code Ann. § 99-19-105(5)(b) (1994 rev.).

¶ 232. Two cases are useful for determining proportionality review. The first discusses the crime. 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), involved a defendant who shot a store clerk four (4) times-once in the head, once through the heart, and twice in the back-during the commission of armed robbery. Id. at 343. The jury convicted Brown of capital murder and sentenced him to death. Id. at 344. This Court held that under the circumstances, a sentence of death was not disproportionate. Id. at 357.

¶ 233. The facts in this case are more egregious, including the physical violence surrounding Krystal's death, as demonstrated by the wounds sustained by Krystal (in Brown, four gunshot wounds to the head, heart and back; in this case, asphyxiation in two ways, by stuffing panties down the victim's throat and by tying her shirt around her neck, with stab wounds to her chest, and a skull crushing blow to her head, and the genital and rectal injuries from the sexual assault), and the duration of the victim's trauma (in Brown, gunshot wounds inflicted moments after entering store; in this case, genital and rectal injuries from the sexual assault took between forty-five minutes and one hour to complete).

¶ 234. As to the defendant, Foster v. State, 639 So.2d at 1303, is an appropriate case to review. In Foster, the defendant had a low IQ score and had the ability to understand right from wrong, and no documented evidence indicating mental impairment. Foster, 639 So.2d at 1303. In contrast, Dr. Zimmerman's testimony indicates that Holland had a measurable brain dysfunction, which was compensated for in the operation of his brain. However, the evidence also indicated that Holland had normal EEG and brain scan readings as well as an average IQ score. In addition, Holland did not contend that he did not know right from wrong. Under these circumstances, the Court cannot say that Holland is less deserving of the death sentence than Foster.

¶ 235. Upon review of the totality of the case, this Court cannot say that the death sentence is disproportionate as applied to Holland.

¶ 236. 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)(SUPP.1995) AND M.R.A.P. 41(a).

PITTMAN, JAMES L. ROBERTS, Jr., and MILLS, JJ., concur. DAN LEE, C.J., specially concurs with separate written opinion joined by JAMES L. ROBERTS, Jr. and SMITH, JJ. PRATHER, P.J., dissents with separate written opinion joined by SULLIVAN, P.J., and BANKS, J. McRAE, J., not participating.

DAN LEE, Chief Justice, specially concurring:

¶ 237. I concur with the result of the majority opinion and write separately because I believe the principle of “finality of criminal judgments” is pertinent to this case and needs further discussion. As I have previously written, it is my strong belief that the principle of finality of judgment in criminal matters compels this Court to affirm a sentence when “all factual issues have been established and re-established by way of multiple submissions to juries.” Wilcher v. State, 635 So.2d 789 (Miss.1993); Irving v. State, 618 So.2d 58, 63 (Miss.1992). “The firmly established judicial concern for finality evidenced in such doctrines as res judicata is not to be lightly discounted.” Irving, 618 So.2d at 63. My concern is shared and has been addressed by the United States Court of Appeals for the Seventh Circuit when it stated:

Every inroad on the concept of finality undermines confidences in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971).

¶ 238. There must be finality in criminal judgments. This case has been tried, reviewed, and decided by two trial juries. In Holland's original direct appeal, the first trial was examined closely by this Court and the death sentence was vacated. Now the second jury's sentence is before the Court on direct appeal. The question of his guilt of the crimes of rape and murder is res judicata from the first trial's guilt phase and cannot be relitigated. Finding no assignment of error worthy of merit, I cannot agree to sending Holland's case back for a third jury to again consider the death penalty. Based on the facts and circumstances presented in the case sub judice, the sentence twice previously returned by the trial juries should be affirmed.

¶ 239. Accordingly, for the above reasons, I concur with the result reached by the majority.

JAMES L. ROBERTS, Jr. and SMITH, JJ., join this opinion.

PRATHER, Presiding Justice, dissenting:

¶ 240. A criminal defendant has a right, during the sentencing phase of a capital murder trial, to rebut evidence presented by the State and to introduce mitigating evidence related to the defendant's character, his record, and/or the circumstances of the crime. Therefore, I respectfully dissent from the views expressed in sections II through VII of the majority opinion.

¶ 241. The difficult question presented in this case arises from this State's statutory scheme for bifurcating capital murder trials into a guilt phase and a sentencing phase. The question is, to what extent may the scope of evidence in the two phases of the trial overlap? The answer is particularly complicated in a case such as Holland's, where the sentencing phase is tried by a jury other than the one which determined guilt.

¶ 242. This Court has never addressed this issue. However, this Court has held that (although residual doubt is not a mitigating factor and the jury cannot be so instructed) doubt relating to guilt itself may be a factor in capital murder sentencing and defense counsel may argue such doubt. Minnick v. State, 551 So.2d 77, 94-95 (Miss.1988), rev'd on other grounds, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), overruled on other grounds, Willie v. State, 585 So.2d 660, 681 (Miss.1991). See also Cole v. State, 525 So.2d 365, 371 (Miss.1987). Implicit in this holding, is the fact that counsel's argument must be based on the evidence presented, and that such evidence is admissible.

¶ 243. The notion of “residual” or “whimsical” doubt is subject to great debate. However, such debate is only tangential to the constitutional problems presented in this case. As the majority correctly indicates, the issue of guilt cannot be relitigated during the sentencing phase of the trial. However, the United States Supreme Court has held that a sentencer may not be “precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality)). The defendant is entitled to “individualized consideration” of his character, his record and his crime. See Minnick v. State, 551 So.2d at 96.

¶ 244. In addition, as the majority correctly points out, the State is required by statute to prove the applicable statutory aggravators and the following “ Enmund ” factors beyond a reasonable doubt: “(1) The defendant actually killed; (2) The defendant attempted to kill; (3) The defendant intended that a killing take place; (4) The defendant contemplated that lethal force would be employed.” Pinkton v. State, 481 So.2d 306, 309 (Miss.1985); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376-77, 73 L.Ed.2d 1140 (1982); Miss.Code Ann. § 99-19-101(7) (1994 rev.). It would be inconsistent for this Court to recognize the State's duty to present such evidence, but not to recognize the defendant's right to rebut it.

¶ 245. Furthermore, the United States Supreme Court has held that a capital murder defendant must have an opportunity to deny or explain any information used against him at sentencing. “The Due Process Clause does not allow the execution of a person ‘on the basis of information which he had no opportunity to deny or explain.’ ” Simmons v. South Carolina, 512 U.S. 154, 161, 114 S.Ct. 2187, 2192, 129 L.Ed.2d 133 (1994) (plurality) (quoting Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977)). See also Skipper v. South Carolina, 476 U.S. 1, 5 n. 1, 106 S.Ct. 1669, 1671 n. 1, 90 L.Ed.2d 1 (1986) (permitting defendant to submit rebuttal evidence of behavior in prison to counter State's charges of defendant as bad prisoner at sentencing).

¶ 246. In addition, other states have held that the defendant cannot be precluded from introducing rebuttal evidence of innocence at sentencing. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369, 371 (1983), cert. denied 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988); State v. Stewart, 288 S.C. 232, 341 S.E.2d 789 (1986) (Given that the State's evidence of guilt is admissible at the resentencing hearing, basic fairness requires that appellant's evidence of innocence be admitted as well). This is particularly true where a new jury is empaneled for sentencing purposes. Romine v. State, 256 Ga. 521, 350 S.E.2d 446, 453 (1986), cert. denied 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 517 (1987).

¶ 247. The capital murder defendant should have the opportunity to rebut the State's evidence and to prove mitigating circumstances. This is an entirely distinct concept from the majority's proposition that the doctrines of res adjudicata and collateral estoppel control the outcome in this case. Clearly, guilt cannot be relitigated. However, the issue here is not whether the conviction can be retried. Rather, the issue is, whether certain evidence is relevant to sentencing in capital murder cases. Although some of the evidence admitted may relate both to guilt and sentencing, the sentencing hearing would have no effect on the previous conviction of guilt. Therefore, the majority's application of the doctrines of res adjudicata and/or collateral estoppel does not really answer the legal question raised in this case.

¶ 248. Specifically, Holland contends that he should have been allowed to introduce Dr. Canfield's testimony that no acid phosphatase was found in the vaginal swabs from the victim, which indicated that no semen was present. This evidence was admissible, because it relates to the circumstances of the crime. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). Furthermore, to the extent such evidence could rebut the “heinous, atrocious, and cruel” aggravator, it was relevant to sentencing and should have been admitted into evidence. See Simmons v. South Carolina, 512 U.S. 154, 161, 114 S.Ct. 2187, 2192-93, 129 L.Ed.2d 133 (1994) (plurality) (quoting Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1206-07, 51 L.Ed.2d 393 (1977)). See also Skipper v. South Carolina, 476 U.S. 1, 5 n. 1, 106 S.Ct. 1669, 1671 n. 1, 90 L.Ed.2d 1 (1986). For this reason, I would reverse and remand.

¶ 249. Holland also contends that he should have been allowed to obtain an expert in forensic pathology to dispute the findings of the State's expert (Dr. McGarry) regarding the circumstances surrounding the victim's death. On remand, I would instruct the trial judge to evaluate the necessity of such an expert. See Hansen v. State, 592 So.2d 114, 125 (Miss.1991) (general standard of review for a trial court's refusal to provide an expert witness is substantial need for that expert).

¶ 250. Many facts relevant to guilt may also be relevant to sentencing. Due process requires that the defendant being sentenced for capital murder must be allowed to rebut the State's evidence and to prove mitigating circumstances. Furthermore, the introduction of such evidence would in no way undermine the validity of the underlying conviction. For these reasons, I would reverse for resentencing. Therefore, I must respectfully dissent.

SULLIVAN, P.J., and BANKS, J., join this opinion.

Holland v. State, 878 So.2d 1 (Miss. 2004). (PCR)

Background: Following appellate affirmance of his capital murder conviction, 587 So.2d 848, and death sentence, 705 So.2d 307, petitioner sought postconviction relief. The Circuit Court, Harrison County, Kosta N. Vlahos, J., denied petition. Petitioner appealed.

Holdings: The Supreme Court, Smith, C.J., held that: (1) trial counsel's preparation for and handling of testimony of State's pathologist was not deficient assistance of counsel; (2) trial counsel's failure to seek funding for defendant's own pathology expert or to more quickly test samples in rape kit in capital murder prosecution was not deficient assistance of counsel; (3) trial counsel was not deficient in presentation of mitigation evidence at sentencing; (4) defendant failed to establish ineffective assistance of counsel on grounds that search warrant was vague; and (5) defendant was not entitled to formal notice of aggravating circumstances to be employed by prosecution. Affirmed.

SMITH, Chief Justice, for the Court.

1. Gerald James Holland applies for post-conviction relief concerning his conviction for the 1986 capital murder of Krystal King committed during the commission of a felony, i.e., rape. His 15 year old victim was raped, viciously beaten and stabbed. The cause of death was asphyxiation from a ligature placed around her neck and clothing stuffed down her throat. Holland further mutilated the body to conceal the cause the death. Holland coerced Jerry Douglas, who had not been present during the murder, to assist him in disposing of the body. Douglas reported the homicide to police and testified against Holland at trial. A jury found Holland guilty of capital murder and the underlying crime of rape beyond a reasonable doubt and this Court affirmed the conviction. Holland v. State, 587 So.2d 848 (Miss.1991).

2. The death sentence however was vacated on appeal after it was found that the jury prematurely endorsed the death sentence before considering the mitigating and aggravating evidence and before the jury instructions were given by the trial court. This was evident by the jury's swift return of the death sentence with little time given to deliberation. This Court held that the defendant's Sixth Amendment right to a fair and impartial jury had been violated; thus we vacated the death sentence and remanded for a new sentencing hearing. Id. at 872.

3. Holland was granted a new sentencing hearing in 1993, but again received the death penalty. The jury imposed the death sentence after finding the existence of all three of the aggravating factors, and that Holland actually killed Krystal King, intended to kill and contemplated that lethal force would be employed. Holland again appealed, and this Court affirmed the death sentence. Holland v. State, 705 So.2d 307 (Miss.1997), cert. denied, 525 U.S. 829, 119 S.Ct. 80, 142 L.Ed.2d 63 (1998), rehearing denied, 525 U.S. 1013, 119 S.Ct. 533, 142 L.Ed.2d 443 (1998).

4. Having reviewed the application, we find that it should be denied.

I. Form of The Verdict at The Sentencing Trial.

5. Holland asserts that the jury failed to follow the trial court's instruction S-1 in that the written form of the verdict did not recite that the aggravating circumstances were found to exist beyond a reasonable doubt. This claim was previously raised on direct appeal and was found to be without merit. Holland, 705 So.2d at 352-53. This Court found that Holland did not object to the form of the verdict at trial and therefore did not preserve the issue for appeal. Without waiving the procedural bar, this Court addressed the merits of the claim and found that the omission was not fatal because the jury had previously been instructed that it had to find the presence of the aggravating circumstances beyond a reasonable doubt. Id. at 353. The matter is now procedurally barred from further consideration on collateral review. Miss.Code Ann. § 99-39-21(3).

6. Holland claims that trial counsel was ineffective in his preparation for and his handling of the testimony of the State's pathologist during the guilt phase of the trial. Specifically, Holland claims that counsel failed to interview the State's witness prior to trial, failed to timely object to his testimony, and failed to seek a continuance of the trial. Holland also asserts that counsel was ineffective in failing to seek funds for an expert pathologist and in failing to timely test the samples collected in the victim's rape kit. Holland also contends that counsel was ineffective in failing to object to the introduction of photographs depicting the exhumation of the victim's body.

7. A defendant's claim that trial counsel's assistance was so defective so as to require reversal of a death sentence has two components. First, the defendant must prove that counsel's performance was deficient which requires showing that counsel made errors so serious such that the attorney was not functioning at a minimum level guaranteed by the Sixth Amendment. Second, the defendant must show that the allegedly deficient performance prejudiced his defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result may be deemed reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

8. The first prong requires the defendant to overcome the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). As for the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

9. When a defendant challenges a death sentence based on ineffective assistance of counsel, the question is whether there is a reasonable probability that, absent the purported errors of counsel, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant imposition of the death penalty. Manning v. State, 735 So.2d 323, 347 (Miss.1999).

10. In the present case, the record reflects that trial counsel was afforded ample opportunity to interview Dr. McGarry prior to his testimony and even stated to the court, “I'm prepared for cross-examination of Dr. McGarry.” Although this Court originally found counsel's objection to be untimely, the record shows that trial counsel's objection to Dr. McGarry's testimony was posed on the same day that the pathologist first gave an in-court opinion as to the chronology of the infliction of injuries relative to the victim's time of death. Trial counsel acknowledged that he was aware of the State's right and intention to question their expert with regard to the autopsy report. However his objection had to do with the State's failure to notify the defense of the substance of the anticipated testimony, i.e., the time of the injuries.

11. Holland also argues that counsel should have sought a continuance, but fails to specify when counsel should have done so. As previously noted, counsel was given the opportunity to interview the State's witness. Further, Holland asserts that counsel should have sought funding for his own pathology expert, but he fails to include the affidavit of any professional who would dispute findings of the State's expert. The benefit of such a defense expert is therefore speculative at best. The same is true of the claim that counsel should have more quickly tested the semen samples collected in the victim's rape kit.

12. As for the claim that counsel failed to object to the introduction of photographic evidence, the record indicates that the crime scene photographs were initially admitted over objection during the guilt phase and that counsel in fact objected again at the sentencing phase. Holland, 705 So.2d at 349-50. Holland finally contends that trial counsel provided inadequate mitigation evidence at the second sentencing trial. The record indicates otherwise. Holland's brother and mother testified as to Holland's home life including physical and mental abuse suffered at the hands of an alcoholic father. Dr. Marc Zimmerman, a psychologist, examined Holland and testified at length that Holland, while functioning at an average or normal intellectual level, nonetheless suffered from some brain dysfunction. Even State's witness William Boyer testified that Krystal King was at Holland's home because she asked to be taken there.

13. Holland now asserts that more could have been done and offers medical records from Parchman and hospital records detailing a history of automobile and hunting accidents as well as a drug overdose. Holland does not explain how these records would serve to persuade a jury to leniency in sentencing and therefore the argument fails. This Court has previously noted that so long as counsel makes known to the sentencing jury evidence of a capital defendant's educational background, psychological profile and childhood experience, there is no error under the Strickland standard. Brown v. State, 798 So.2d 481, 498-99 (Miss.2001); Chase v. State, 699 So.2d 521, 528 (Miss.1997).

14. Applying the standard imposed by Strickland, trial counsel's conduct of the sentencing trial did not fall below the standard expected of lawyer and even, assuming some error on the part of counsel, the absence of any assumed error would not have resulted in sentence other than death. This issue is without merit. III. Right to a Fair and Impartial Trial.

15. Holland claims that he was denied a fair and impartial trial because counsel failed to have the trial court ascertain whether the jury pool was tainted by the statements of a particular venireman that he (the juror) was familiar with the case and was in complete agreement with the conviction. Holland raised the issue on direct appeal, and this Court found the argument to be without merit. Holland, 705 So.2d at 337. Holland cannot now recast the issue under guise of an ineffective assistance of counsel claim. Foster v. State, 687 So.2d 1124, 1129 (Miss.1996). Not only is the claim without merit, it is procedurally barred from consideration. Miss.Code Ann. § 99-39-21(3).

16. Holland contends that trial counsel was ineffective for failure to contest the vague phraseology of the search warrant that authorized a search for the “instrumentalities used in the commission of a crime.” Holland argues that a successful challenge would have excluded extraneous items such as a pillow case and cushion found with the body. Holland does not articulate how this would have changed the outcome of the trial, particularly in light of his several confessions. To his credit, trial counsel did attempt to suppress the confessions before trial and raised the challenge again on appeal. Holland v. State, 587 So.2d 848, 856 (Miss.1991). However, this Court found Holland's confessions to be voluntary. Id. at 862. This particular claim of ineffective assistance is wholly without merit.

V. Cumulative Effect of Failure to Object to Prosecution Rhetoric.

17. Holland claims that counsel was ineffective at the resentencing trial for failure to object to four statements made by the prosecutor which Holland claims were prejudicial. These statements included comments concerning the reliability of brain scans, a comment that the only witness had been killed, comments that minimized the importance of the mitigation evidence, and comments emphasizing his role as the State's attorney. Holland asserts that counsel at his resentencing trial failed to timely object to a number of supposed misstatements by the prosecutor whose cumulative effect deprived him of fair trial.

18. The record shows that counsel did pose objections to these comments and further raised them again on direct appeal. This Court considered each instance in great detail but found no error on the part of the trial court in allowing the statements to stand. Holland, 705 So.2d at 343-47. The propriety of the comments has been thoroughly litigated, and the issue is now barred from collateral review. Miss.Code Ann. § 99-39-21(3). Holland may not raise it again as an ineffective assistance of counsel claim. Foster v. State, 687 So.2d at 1129.

VI. Residual Doubt.

19. Holland next asserts that, at his resentencing trial, he was not allowed to argue residual doubt concerning his guilt. This issue was considered thoroughly on direct appeal following the resentencing. Holland, 705 So.2d at 322-27. This Court found that there was no residual doubt to be argued since the underlying conviction had already been affirmed on appeal. The Court stated, “We hold that there can be no error in denying Holland the right to argue residual or whimsical doubt, since it is not a mitigating factor that is constitutionally recognized.” Id. at 326. The issue is now procedurally barred from further consideration under the doctrine of res judicata. Miss.Code Ann. § 99-39-21(3).

VII. Testimony of the State's Pathologist.

20. Holland asserts that, during the resentencing trial, the testimony of the State's pathologist was overbroad and that his opinions were not always based on scientific standards and supporting proof. In Holland's words, “Dr. McGarry gave opinion testimony, over objection, without any statement as to probability or reasonable medical certainty.” This issue was also considered and rejected on direct appeal. This Court specifically found that Dr McGarry's testimony “was not rank speculation” and that the State had shown that Dr. McGarry's testimony “fell within the bounds of forensic pathology by demonstrating that his expertise dealt with wounds, suffering, and the means of infliction of injury.” Holland, 705 So.2d at 341.

VIII. Aggravating Factors Not Charged in the Indictment.

21. Holland argues that his death sentence must be vacated because the aggravating circumstances which charged capital murder were not included in the indictment. Holland 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 which the Court held unconstitutional a sentencing scheme where a judge rather than a jury determined whether there were sufficient aggravating circumstances to warrant imposition of the death penalty.

22. Apprendi fired several shots into the home of an African-American family in New Jersey and was indicted on state charges of shooting and possession of firearms. He pled guilty to two counts of possession of a firearm for unlawful purpose and one count of possession of an explosive. After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on the basis that it was a hate crime. Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The Supreme Court agreed, stating: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

23. However, the Court specifically stated that “Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question separately today.” Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348. The U.S. Supreme Court found in Apprendi that New Jersey's statutory scheme would allow a jury to convict a defendant of a second degree offense of possession of a prohibited weapon, and then, in a separate subsequent proceeding, allow a judge to impose a punishment usually reserved for first degree crimes made on the judge's finding based on a preponderance of the evidence.

24. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring 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), that of a jury deciding guilt and a judge making findings on aggravating factors, could survive the Apprendi decision. The Supreme Court decided it could not. [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, 111 L.Ed.2d 511. 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, 147 L.Ed.2d 435, the Sixth Amendment requires that they be found by a jury. * * * “The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.... If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. Ring, 536 U.S. at 609, 122 S.Ct. 2428.

25. Holland argues that because Ring found the Apprendi decision persuasive, the U.S. Supreme Court necessarily adopted every other rule stated in Apprendi for state capital sentencing proceedings, specifically the rule that the Constitution requires that aggravating factors be listed in indictments. The Court in Ring specifically noted what was being decided and what was not. “Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Ring, 536 U.S. at 597, 122 S.Ct. 2428 n. 4. Ring did not contend that his indictment was constitutionally defective.

26. Further, the retroactive application of Ring is in doubt and is now before the U.S. Supreme Court. Although the Ninth Circuit has ruled in Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.2003), cert. granted sub nom. Schriro v. Summerlin, 540 U.S. 1045, 124 S.Ct. 833, 157 L.Ed.2d 692 (2003) (No. 03 526), that Ring announced a substantive rule of law which may be applied retroactively to federal habeas review proceedings, another circuit has held that the Ring decision is not retroactive absent an express pronouncement to that effect. Turner v. Crosby, 339 F.3d 1247 (11th Cir.2003). We agree with the Eleventh Circuit.

27. The State is correct in its assertion that 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)). 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. Further this Court has previously rejected similar arguments in Stevens v. State, 867 So.2d 219, 223 (Miss.2003). This issue is without merit.

IX. Inability to Defend Proof of the Underlying Conviction at Re-sentencing.

28. Holland argues that it was improper to compel the State to prove that he had already committed murder and rape but not allow him to defend the State's assertions. This is a variation of the previously-discussed “residual doubt” argument. As noted before, the issue was considered and rejected on direct appeal. Holland, 705 So.2d at 322-25. “Our caselaw holds that in an appeal from a resentencing trial for capital murder, the issue of guilt is res judicata and cannot be relitigated.” Irving v. State, 441 So.2d 846, 851-52 (Miss.1983). This issue is procedurally barred from consideration. Miss.Code Ann. § 99-39-21(3).

X. Voir Dire of Prospective Jurors Concerning Mitigation Evidence.

29. Holland asserts that, prior to the resentencing trial, he was precluded by the trial judge from questioning prospective jurors about their willingness to consider mitigation evidence. This claim has previously been considered and rejected on direct appeal. Under Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), defense counsel is entitled to inquire whether jurors will consider mitigation evidence at all or whether they would automatically impose the death penalty. This Court however found that jurors may not be questioned as to what weight, if any, they would give to individual mitigating factors. Holland, 705 So.2d at 338-39. The issue is now procedurally barred from further consideration. Miss.Code Ann. § 99-39-21(3).

30. Holland argues that the trial court's limiting instruction as to the Especially Heinous Atrocious or Cruel aggravating factor was constitutionally infirm because the instruction to the jury was vague and overbroad. This issue was also decided against Holland on direct appeal and is now procedurally barred. Miss.Code Ann. § 99-39-21(3). On appeal, this Court found that Instruction C-2 tracked the required language of Clemons v. Mississippi, 494 U.S. 738, 757, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and that the issue was therefore without merit. Holland, 705 So.2d at 356.

XII. Death Sentence Disproportionate to the Offense.

31. On direct appeal, this Court conducted a proportionality review as required by the Eighth Amendment and specifically found that Holland's death sentence was not disproportionate. Holland, 705 So.2d at 357. Consequently, the issue is now procedurally barred from collateral review. Miss.Code Ann. § 99-39-21(3).

XIII. Sufficiency of the Evidence.

32. Holland claims that the testimony of Dr. McGarry alone was insufficient for a jury to find that the victim had been raped (as opposed to being a willing participant in sexual intercourse). On direct appeal from the conviction itself, this Court specifically held that “the evidence presented was sufficient to convince a rational factfinder of Holland's guilt of capital murder and the underlying crime of rape beyond a reasonable doubt.” Holland, 587 So.2d at 872. The issue in procedurally barred from consideration. Miss.Code Ann. § 99-39-21(3).

XIV. Request for Neurological Exam.

33. Holland argues again that the trial judge should have granted his request for a neurological exam based on the affidavit of Dr. Marc Zimmerman. On direct appeal, this Court found that Holland had not shown a substantial need for the exam and that it was within the discretion of the trial judge to deny the request. Holland, 705 So.2d at 334. The issue is now barred from further review. Miss.Code Ann. § 99-39-21(3).

XV. Cumulative Error and a Fundamentally Fair Trial

34. Holland argues last that the failure of counsel to make contemporaneous objections at both trials resulted in errors whose cumulative effect was to deprive him of a fundamentally fair trial. As previously discussed, Holland has failed to make a prima facie showing of ineffective assistance counsel. In the absence of professional error or omission, there can be no cumulative effect so as to deny Holland a fair trial. Foster v. State, 639 So.2d at 1303.

35. We find no merit in Holland's application. Therefore, the application for post-conviction collateral relief is denied.

36. LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

Holland v. Anderson, 583 F.3d 267 (5th Cir. 2009). (Habeas)

Background: Following affirmance of his murder conviction, 587 So.2d 848, and death sentence, 705 So.2d 307, and denial of state post-conviction relief, 878 So.2d 1, petitioner sought writ of habeas corpus. The United States District Court for the Southern District of Mississippi, William H. Barbour, Jr., J., 439 F.Supp.2d 644, denied petition. Petitioner appealed, and certificate of appealability (COA) was granted.

Holdings: The Court of Appeals, Prado, Circuit Judge, held that: (1) in prohibiting petitioner from contesting during penalty phase that he raped victim, trial court did not deny him due process right to present evidence of circumstances of offense as basis for sentence less than death, and (2) denial of defendant's claim that death sentence was imposed on basis of information he had no opportunity to deny or explain in violation of his due process rights did not warrant habeas relief. Affirmed.

PRADO, Circuit Judge:

Petitioner Gerald James Holland (“Holland”) appeals the district court's order denying him habeas corpus relief from his Mississippi conviction for capital murder and sentence of death. Holland raised five issues in his motion for a Certificate of Appealability (“COA”), and we granted a COA on “the single issue of whether Holland's rights were violated at his resentencing when he was not permitted to rebut the State's evidence that he killed [Krystal] King while engaged in the commission of the crime of rape,” as the jury found during the guilt phase of his trial. Holland v. Anderson, 230 Fed.Appx. 374, 386 (5th Cir.2007) (per curiam). For the following reasons, we AFFIRM the district court's denial of habeas corpus relief.

I. FACTUAL AND PROCEDURAL BACKGROUND
In its opinion denying Holland's Amended Petition for Writ of Habeas Corpus, the district court provided a detailed account of the factual background and procedural history of this case. See Holland v. Anderson, 439 F.Supp.2d 644, 649-53 (S.D.Miss.2006). Below, we focus upon only those facts most relevant to the instant appeal.

On November 17, 1986, a grand jury in Harrison County, Mississippi, indicted forty-nine-year-old Holland for murdering fifteen-year-old Krystal D. King (“King”) “while engaged in the commission of the crime and felony of Rape.” After a transfer of venue, the State tried Holland before a jury in November and December 1987. Following a twelve-day trial, the jury found Holland guilty of capital murder, thus making Holland eligible for the death penalty. See Miss.Code Ann. § 97-3-19(2)(e) (defining capital murder to include murder while “engaged in the commission of the crime of rape”); § 97-3-21 (authorizing the death penalty for those convicted of capital murder). Immediately after the jury returned its guilty verdict, the judge sent the jury out of the room so he could discuss with the attorneys how the penalty phase would proceed. Approximately twenty-two minutes later, the jury sent out a note stating, “We, the jury, sentence Gerald James Holland to death.” The judge then admonished the jury to refrain from deliberations, and the penalty phase proceeded with the same jury. At the conclusion of the sentencing phase, the jury recommended-and the court imposed-a sentence of death.

On Holland's first direct appeal, the Mississippi Supreme Court affirmed Holland's conviction but reversed his death sentence on the ground that the jury's premature sentencing deliberations violated his Sixth Amendment right to a fair and impartial jury. Holland v. State (Holland I), 587 So.2d 848, 872-75 (Miss.1991). The court remanded the case for resentencing by a new jury (the “resentencing jury”). Id. at 875.

On remand, the trial court concluded that, because the original jury-by virtue of finding Holland guilty of murder during the commission of a rape-found that Holland raped King (and this conviction had been affirmed on appeal), Holland could not deny the rape during his resentencing proceeding. See Holland v. State (Holland II), 705 So.2d 307, 327 (Miss.1997), cert. denied, 525 U.S. 829, 119 S.Ct. 80, 142 L.Ed.2d 63 (1998). The court ruled that Holland could introduce mitigating evidence and describe the circumstances of the rape and murder, but he could not argue that he did not rape King. See id.

The court also submitted to the jury three aggravating factors to consider: “(1) that the capital offense was committed while the defendant was engaged in the act of commission of the crime of rape, (2) that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest, and (3) that the capital offense was especially heinous, atrocious, or cruel.” Id. at 319. He further “submitted to the jury the determination of whether Holland actually killed Krystal D. King, or attempted to kill her, or intended that the killing take place, or contemplated that lethal force would be employed.” Id.; see Miss.Code Ann. § 99-19-101(7)(a-d); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

Pursuant to Mississippi procedure, the state recalled five witnesses who testified during the guilt phase of Holland's trial. See Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976) (“At this hearing, the State may elect to stand on the case made at the first hearing, if before the same jury, or may reintroduce any part of the evidence adduced at the first hearing which it considers to be relevant to the particular question of whether the defendant shall suffer death or be sentenced to life imprisonment.”), superseded by statute on unrelated grounds as recognized by Gray v. State, 351 So.2d 1342, 1349 (Miss.1977). Among these witnesses was Dr. McGarry, the State's pathologist, who testified that King had been raped and explained the heinous manner in which she had been murdered. Holland proffered the testimony of his own pathologist, Dr. Riddick, to rebut Dr. McGarry's testimony. The record indicates that the court would have permitted Dr. Riddick to dispute Dr. McGarry's testimony about the “especially heinous, atrocious or cruel” aggravating circumstance; the court only would have prohibited him from contesting the original jury's finding that Holland in fact raped King. Holland, however, elected not to call Dr. Riddick.FN1 Although Holland called multiple witnesses to testify on his behalf, including his mother, brother, a psychiatrist, and one of the state's witnesses, he chose not to testify himself, allegedly because he could not deny the occurrence of the rape, even though he could have testified to the facts and circumstances thereof in mitigation. At the conclusion of the resentencing proceeding, the jury found the existence of all three aggravating factors and “that Holland actually killed Krystal King, intended to kill and contemplated that lethal force would be employed.” Holland II, 705 So.2d at 319. It sentenced Holland to death. Id.

FN1. Holland did not present any expert evidence from a pathologist during the guilt phase of his original trial. The record reflects that Holland chose not to call his original pathologist, Dr. Steckler, during the guilt phase of his trial because he (Dr. Steckler) agreed with Dr. McGarry's conclusion that King was raped.

On Holland's second direct appeal, the Mississippi Supreme Court affirmed his sentence. Id. at 357.FN2 Prior to seeking post-conviction relief in Mississippi state court, in December 1998, Holland filed a pro se application for a stay of execution and a motion for appointment of counsel in the U.S. District Court for the Southern District of Mississippi. The district court granted both motions, but it stayed further action in Holland's case pending the exhaustion of his state court remedies. Holland then filed a petition for post-conviction relief with the Mississippi Supreme Court, which the court denied. Holland v. State (Holland III), 878 So.2d 1, 10 (Miss.2004), cert. denied, 544 U.S. 906, 125 S.Ct. 1590, 161 L.Ed.2d 280 (2005). FN2. Three Mississippi Supreme Court Justices dissented. See Holland II, 705 So.2d at 358-60 (Prather, J., dissenting).

After the Mississippi Supreme Court decided Holland III, the district court lifted the stay and Holland filed an amended petition for a writ of habeas corpusFN3 in which he raised twelve claims for habeas relief. In a thorough opinion, the district court denied the amended petition and subsequently denied Holland's request for a COA. See Holland, 439 F.Supp.2d 644. Holland then sought a COA from this court on five issues. Holland, 230 Fed.Appx. at 375. We granted a COA on the single issue currently before us and denied a COA on each of Holland's other claims. Id. at 386.

FN3. There was no “original” petition for habeas corpus relief in this case other than Holland's initial pro se filings. Holland's Application for Stay of Execution and his Motion for Appointment of Counsel, filed on December 15, 1998, initiated this case.

II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal under 28 U.S.C. § 2253(a) and (c)(1)(A) because the district court issued a final order denying Holland habeas relief and we granted him a COA. See Richardson v. Quarterman, 537 F.3d 466, 472 (5th Cir.2008).

“On habeas review, we review the district court's findings of fact for clear error and its legal conclusions de novo.” Mallard v. Cain, 515 F.3d 379, 381 (5th Cir.2008). Our review of Holland's amended petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, which mandates that federal courts give great deference, subject to limited exceptions, to the state courts' resolution of a petitioner's claims. See Foster v. Quarterman, 466 F.3d 359, 365 (5th Cir.2006). This “deference is mandated both for questions of law and for mixed questions of law and fact.” Id. Under AEDPA, a federal court cannot grant habeas relief unless the state court adjudication of a claim either

(1) resulted in a decision that was 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); see also Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “Under § 2254(d)(1), a decision is contrary to clearly established federal law if ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law’ or ‘confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that precedent].’ ” Oliver v. Quarterman, 541 F.3d 329, 334 (5th Cir.2008) (quoting (Terry) Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (alterations in original), cert. denied, --- U.S. ----, 129 S.Ct. 1985, 173 L.Ed.2d 1084 (2009). “A decision involves an unreasonable application of Supreme Court precedent if it ‘unreasonably extends a legal principle from [Supreme Court precedent] to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.’ ” Id. (quoting Williams, 529 U.S. at 407, 120 S.Ct. 1495) (alteration in original). We must presume that the state court's factual findings are correct unless Holland meets his “ ‘burden of rebutting [that] presumption ... by clear and convincing evidence.’ ” Foster, 466 F.3d at 365 (quoting 28 U.S.C. § 2254(e)(1)) (alteration and omission in original).

III. ANALYSIS
and asserts that the trial court violated his constitutional rights by prohibiting him from rebutting, at his resentencing trial, the State's evidence that he murdered King while engaged in the commission of a rape. He claims that, because the State, to prove an aggravating circumstance under Mississippi law, put on evidence that he raped King, it was constitutional error to prevent him from putting on evidence to show that he did not rape King prior to killing her. The State contends that the court properly prevented Holland from disputing that he raped King because the issue was res judicata based on the original jury's finding that Holland murdered King “while engaged in the commission of the crime of rape.” The State argues that this was not error and, further, that the Supreme Court's decision in Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006), forecloses Holland's claim.

This appeal implicates the following issues: (1) whether the resentencing court improperly prohibited Holland from introducing evidence of the circumstances of his crime as mitigating evidence, (2) whether Holland was entitled to present evidence of innocence of his crime of conviction at his resentencing, and (3) the effect of rape being both an element of Holland's crime of conviction and an aggravating circumstance. We address each in turn. Before analyzing these issues, however, we first briefly review the structure of Mississippi's capital sentencing scheme.

A. Mississippi's Capital Sentencing Scheme
Mississippi law provides for bifurcated trials for capital offenses. See Miss.Code Ann. § 99-19-101(1). First, if a jury convicts a defendant of capital murder during the guilt phase of the trial, the defendant is rendered death-eligible. See id. § 97-3-21. According to Mississippi law, the offense of capital murder includes “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of rape.” Id. § 97-3-19(2)(e). Thus, the commission of the crime of rape is an element of capital murder under this subsection.

If a person is convicted of capital murder, “the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without eligibility for parole, or life imprisonment.” Id. § 99-19-101(1). To impose a sentence of death, the jury must unanimously find:

(a) That sufficient factors exist as enumerated in subsection (7) of this section; (b) That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and (c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances. Id. § 99-19-101(3). Subsection (7) requires the jury to find that the defendant actually killed, attempted to kill, intended that a killing take place, or contemplated that lethal force would be employed. Id. § 99-19-101(7). Subsection (5) lists eight aggravating circumstances, of which the court submitted three to the resentencing jury in this case: (1) “[t]he capital offense was committed while the defendant was engaged ... in the commission of ... rape”; (2) “[t]he capital offense was committed for the purpose of avoiding or preventing a lawful arrest”; and (3) “[t]he capital offense was especially heinous, atrocious or cruel.” Id. § 99-19-101(5). Subsection (6) lists various mitigating circumstances not relevant to this appeal. See id. § 99-19-101(6).

In this case, the jury in Holland's original trial found him guilty of capital murder for killing King while engaged in the commission of the crime of rape, and this conviction was upheld on appeal. At resentencing, the second jury found that all three aggravating circumstances existed, that there were insufficient mitigating circumstances to outweigh the aggravating circumstances, and that Holland actually killed King, intended to kill, and contemplated that lethal force would be employed. Accordingly, the jury recommended-and the court imposed-a sentence of death.

As this discussion makes clear, and as our previous opinion granting Holland a COA explained, “the fact that Holland murdered King while engaged in the act of the commission of the crime of rape is both an element of the guilt/innocence finding on the capital murder charge and an aggravating circumstance militating toward imposition of the death penalty. It is this dual function that raises a constitutional question in this case.” Holland, 230 Fed.Appx. at 383.

B. The Trial Court Did Not Improperly Prohibit Holland from Introducing Evidence of the Circumstances of His Crime As Mitigating Evidence

Holland's primary argument on appeal is that, by prohibiting him from contesting that he raped King, the resentencing court denied him “his due process right to present evidence of the circumstances of the offense as a basis for a sentence less than death.” The State does not challenge the premise that Holland had the constitutional right to introduce evidence of the circumstances of his capital crime for the resentencing jury to consider as mitigation. Rather, the State contends that the evidence Holland sought to introduce was not evidence of the circumstances of his capital crime. We agree.

1. The Effect of Lockett, Eddings, and Their Progeny
In Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion), the Supreme Court addressed which facets of an offender or his offense are deemed “relevant” to mitigation in capital sentencing and “what degree of consideration of ‘relevant facets' ” is required. In that case, the Court entertained a challenge to an Ohio death penalty statute that “narrowly limit[ed] the sentencer's discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors.” Id. at 589, 98 S.Ct. 2954. The statute limited the sentencer to considering only three mitigating factors: whether “(1) the victim had induced or facilitated the offense, (2) it was unlikely that [the defendant] would have committed the offense but for the fact that [ ]he ‘was under duress, coercion, or strong provocation,’ or (3) the offense was ‘primarily the product of [the defendant's] psychosis or mental deficiency.” Id. at 593, 98 S.Ct. 2954 (quoting Ohio Rev.Code §§ 2929.03-.04(B) (1975)). The Ohio statute precluded any consideration of any other facts or circumstances in mitigation. See id.

Evaluating the constitutionality of this capital sentencing regime, a plurality of the Court noted that “ ‘in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’ ” Id. at 604, 98 S.Ct. 2954 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion)). Chief Justice Burger, writing for the plurality, concluded that

the Eighth and Fourteenth Amendments require that the sentencer, ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at 604, 98 S.Ct. 2954. In Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), a majority of the Supreme Court adopted this rule, which is now well-established. See Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

In adopting this rule, the Eddings Court explained that “the fundamental respect for humanity underlying the Eighth Amendment” requires such consideration “as a constitutionally indispensable part of the process of inflicting the penalty of death.” 455 U.S. at 112, 102 S.Ct. 869. In addition, the Court has explained that “[e]qually clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence.” Skipper, 476 U.S. at 4, 106 S.Ct. 1669 (internal quotation marks omitted). As the Supreme Court recently summarized, “[i]n aggregate, our precedents confer upon defendants the right to present sentencers with [such mitigating] information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here.” Kansas v. Marsh, 548 U.S. 163, 175, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006).

Notably, the evidence that Holland sought to present at his resentencing in this case is distinctly different from that at issue in Lockett and Eddings. As the Supreme Court has recently recognized, Lockett and Eddings each involved traditional sentence-related evidence: “evidence that tended to show how, not whether, the defendant committed the crime.” Oregon v. Guzek, 546 U.S. 517, 524, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006). In Lockett, the defendant sought to introduce evidence which, inter alia, showed he had a favorable prognosis for rehabilitation and that he had suffered from drug addiction but was receiving treatment and was “on the road to success,” but the Ohio statute precluded its consideration in mitigation. 438 U.S. at 594, 98 S.Ct. 2954. Similarly, in Eddings, the trial court refused to consider in mitigation the circumstances of the defendant's unhappy upbringing, including his turbulent family history and beatings by a harsh father, and his severe emotional disturbance. 455 U.S. at 116, 102 S.Ct. 869.FN4

FN4. In Skipper, the Court addressed the specific situation in which a prosecutor argues, as a factor warranting imposition of the death penalty, that the defendant “would pose disciplinary problems if sentenced to prison and would likely rape other prisoners.” 476 U.S. at 3, 106 S.Ct. 1669. In such a case, the Court held that, to rebut this testimony, the defendant had the right to introduce evidence of his good behavior in prison while awaiting trial even though such evidence did “not relate specifically to [the defendant's] culpability for the crime he committed.” Id. at 4-5, 106 S.Ct. 1669. Indeed, although not related specifically to the circumstances of the crime of conviction, such might be the only way a defendant could rebut the prosecutor's assertion.

Importantly, the trial court in this case did not prevent Holland from introducing such evidence. At his resentencing, the jury heard mitigating evidence from Holland's mother and brother, who testified that Holland had a difficult upbringing and that his alcoholic father physically and mentally abused him. Dr. Marc Zimmerman, a psychologist who examined Holland prior to his resentencing trial, testified that although Holland possessed an average or normal intellectual level, he nonetheless suffered from some brain dysfunction. Holland further called William Boyer, one of the state's witnesses, who testified that King was at Holland's home on the night of the murder because she had asked to be taken there. Moreover, the court did not prevent Holland from testifying: the resentencing court made clear that it would have allowed Holland to testify about any of the circumstances of his crime and any aspect of his character or record as mitigation. Nor did the court prevent Holland from calling his pathologist, Dr. Riddick, to rebut State pathologist Dr. McGarry's testimony about the “especially heinous, atrocious or cruel” nature of the crime. The only testimony and evidence that the court prohibited was that related to an element of the crime: the commission of a rape. As explained above, rape was an essential element of the original jury's capital murder conviction. Without finding rape, the jury could not have found Holland guilty of capital murder; rape was therefore not a circumstance of the crime.FN5 The only witness that the court precluded Holland from calling was Dr. Canfield, a serologist who Holland sought to call for the sole purpose of testifying that King had not been raped.FN6 The fact that Holland sought to introduce evidence to dispute an actual element of his crime of conviction-not merely evidence to explain the crime or to describe the circumstances of the crime-distinguishes this case from Lockett, Eddings, and their progeny.

FN5. As an illustration, consider non-capital murder. Had Holland been charged only with the non-capital murder of King, and had he also raped her, the rape would be a circumstance of the crime of murder (the killing of King). Capital murder in this case, however, required murder plus rape; rape was an essential element of the crime, not a circumstance thereof.

FN6. Dr. Canfield would have testified that he found no acid phosphates on a vaginal swab taken from King or sperm on a slide taken from her rape kit. Of course, as the State notes in its brief, such a finding, even if made, would not establish that King had not been raped because under Mississippi law, as elsewhere, rape requires only penetration of the vagina-no matter how slight-not ejaculation.

2. The Effect of Oregon v. Guzek In Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006), the Supreme Court addressed the rule of Lockett, Eddings, and their progeny and confronted a virtually identical question as in this case based on virtually identical facts and procedure. The Court decided Guzek after the Mississippi Supreme Court denied Holland habeas relief, and the district court found it dispositive of Holland's claim. Its holding is also central to the State's argument. Accordingly, we explain the case at some length.

In Guzek, the Supreme Court held that, in a resentencing proceeding in a capital case, a state can constitutionally limit a defendant's introduction of innocence-related evidence to the evidence he introduced at his original trial. See 546 U.S. at 523, 126 S.Ct. 1226. A jury convicted Guzek of capital murder in an Oregon court and sentenced him to death. Id. at 520, 126 S.Ct. 1226. The Oregon Supreme Court affirmed his conviction but vacated his sentence and ordered a new sentencing proceeding. Id. A jury again sentenced Guzek to death, but the Oregon Supreme Court again vacated his sentence and remanded. Id. A jury sentenced Guzek to death yet again, and the Oregon Supreme Court again vacated his sentence. Id. “Seeking to avoid further errors at the next (the fourth) sentencing proceeding, the Oregon Supreme Court also addressed the admissibility of certain evidence Guzek [sought] to introduce at that proceeding,” namely, new alibi evidence (that he did not offer at his original trial) tending to show that he could not have committed the capital murder of which the original jury had found him guilty. Id. Although Oregon law permitted Guzek to introduce innocence-related evidence from the guilt phase of his trial at resentencing, it did not allow him to introduce new innocence-related evidence. See Or. Rev. Stat. § 138.012(2)(b). Guzek sought to introduce evidence of the latter type: evidence that “is inconsistent with Guzek's prior conviction,” “sheds no light on the manner in which he committed the crime for which he ha[d] been convicted,” and is not “evidence that Guzek contends was unavailable to him at the time of the original trial.” Guzek, 546 U.S. at 523, 126 S.Ct. 1226. The Supreme Court concluded that it could “find nothing in the Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce new evidence of this kind at sentencing.” Id.

Notably, the Court specifically distinguished Guzek from Lockett and Eddings on the ground that the evidence in Guzek was inconsistent with Guzek's prior conviction: But the evidence at issue in [ Lockett and Eddings] was traditional sentence-related evidence, evidence that tended to show how, not whether, the defendant committed the crime. Nor was the evidence directly inconsistent with the jury's finding of guilt. Id. at 524, 126 S.Ct. 1226. The Court further explained that a defendant's Eighth Amendment right to present evidence in mitigation of sentence is not unlimited:

The Eighth Amendment also insists that a sentencing jury be able to consider and give effect to mitigating evidence about the defendant's character or record or the circumstances of the offense. But the Eighth Amendment does not deprive the State of its authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted. Rather, States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty. Id. at 526, 126 S.Ct. 1226 (citations and internal quotation marks omitted).

In support of its conclusion, the court explained three circumstances which, taken together, convinced it that a state could exclude evidence of the type Guzek sought to present: First, sentencing traditionally concerns how, not whether, a defendant committed the crime. See United States Sentencing Commission, Guidelines Manual § 1A1.1, editorial note, § 4(a), p. 4 (Nov.2004). But the evidence at issue here-alibi evidence-concerns only whether, not how, he did so.

Second, the parties previously litigated the issue to which the evidence is relevant-whether the defendant committed the basic crime. The evidence thereby attacks a previously determined matter in a proceeding at which, in principle, that matter is not at issue. The law typically discourages collateral attacks of this kind. Cf. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“As this Court and other courts have often recognized, res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication[.]”).

Third, the negative impact of a rule restricting defendant's ability to introduce new alibi evidence is minimized by the fact that Oregon law gives the defendant the right to present to the sentencing jury all the evidence of innocence from the original trial regardless. That law permits the defendant to introduce at resentencing transcripts and exhibits from his prior trial. Ore. Rev. Stat. § 138.012(2)(b) (2003). The defendant here has not claimed that the evidence at issue was unavailable at the time of his original trial. Thus, he need only have introduced it at that time to guarantee its presentation (albeit through transcripts) to a resentencing jury as well.

The legitimacy of these trial management and evidentiary considerations, along with the typically minimal adverse impact that a restriction would have on a defendant's ability to present his alibi claim at resentencing convinces us that the Eighth Amendment does not protect defendant's right to present the evidence at issue here. We conclude that the Oregon court was wrong in holding to the contrary. Id. at 526-27, 126 S.Ct. 1226.

The district court in the instant case found Guzek dispositive: Based on the holdings in Guzek, this Court finds that the trial court in Holland's re-sentencing trial did not constitutionally err by barring introduction of evidence suggesting that Holland did not murder King while in the act of raping her. That evidence relates to whether Holland committed the crime for which he was convicted, not how the crime was committed. Further, barring the introduction of this evidence did not prevent Holland from introducing other evidence of mitigating circumstances enumerated in § 99-19-101(6) of the Mississippi Code. Holland, 439 F.Supp.2d at 673-74 (emphasis added).

We agree that the Supreme Court's holding in Guzek suggests that Holland was not entitled to introduce evidence indicating that he did not rape King. Of the three circumstances the Guzek Court identified as supporting the assertion that a State may prohibit the introduction of new evidence of innocence at resentencing, two are directly applicable here. First, the Court noted that “sentencing traditionally concerns how, not whether, a defendant committed the crime.” Guzek, 546 U.S. at 526, 126 S.Ct. 1226. Just like the alibi evidence in Guzek, the evidence and testimony that Holland did not rape King, which Holland unsuccessfully sought to present at resentencing “concerns only whether, not how, he [committed his crime of conviction].” See id. Second, the Guzek Court explained that “the parties previously litigated the issue to which the evidence [that Guzek sought to introduce at resentencing] is relevant-whether [he] committed the basic crime,” which is “a previously determined matter.” Id. The same is true here. By virtue of his capital murder conviction, a jury found that Holland raped King, and the issue was actually litigated and necessary to the judgment of conviction.

Only the third circumstance identified by the Guzek Court does not apply in this case: whereas an Oregon statute expressly allows a defendant “to present to the sentencing jury all the evidence of innocence from the original trial,” Mississippi does not have a comparable statute. See id. at 526-27, 126 S.Ct. 1226 (emphasis omitted).FN7 However, the importance of this third circumstance is not clear. In his concurrence in Guzek, Justice Scalia questioned the Court's inclusion of this third circumstance in its analysis:

FN7. The State argues that “[u]nder Mississippi case law and procedure a capital defendant and the state are generally allowed to reintroduce any evidence adduced at the guilt/innocence phase in the sentence phase or resentencing phase.” In support, it cites the Mississippi Supreme Court's decision in Bell v. State, 360 So.2d 1206, 1211-12 (Miss.1978), and subsequent cases, most of which rely upon Jackson v. State, 337 So.2d 1242 (Miss.1976), superseded by statute on unrelated grounds as recognized by Gray v. State, 351 So.2d 1342, 1349 (Miss.1977). Although the Bell court noted that the defendant “moved to reaffirm” his testimony at resentencing, it did not hold that the defendant has a right to reintroduce evidence adduced during the guilt-innocence phase in the sentencing or resentencing phase. See Bell, 360 So.2d at 1211-12. Jackson and its progeny address only the State's right to reintroduce such evidence. No case that the State cites specifically holds that a defendant has a similar right.

The first two of the circumstances are alone sufficient to dispose of the claim that the Eighth Amendment guarantees a capital defendant a second opportunity, at sentencing, to litigate his innocence. In fact, the Court's third “circumstance” is an analytical misfit in the company of the other two. The first two-that “sentencing traditionally concerns how, not whether, a defendant committed the crime,” and that “the parties previously litigated the issue to which the evidence is relevant”-show that compelling the admission of innocence-related evidence would be improper and unnecessary at a sentencing hearing. The third, by contrast, suggests that there is no constitutional violation in this case because enough of such evidence may be admitted on remand. The latter factor would be relevant only if the former two were not. See id. at 528, 126 S.Ct. 1226 (Scalia, J., concurring in the judgment) (citations omitted). Moreover, at least two circuit courts have cited Guzek's holding that a defendant has no right to present new evidence of innocence at sentencing without mentioning this “third circumstance.” See Owens v. Guida, 549 F.3d 399, 419 (6th Cir.2008); Shelton v. Carroll, 464 F.3d 423, 442 (3d Cir.2006) (explaining that “because [the defendant] did not testify at trial, any factual statements about what happened on the night of the murder and his involvement in the crime would have been new evidence not already in the trial record,” and therefore holding that the state court's refusal to permit the defendant to testify to such facts at allocution was not an unreasonable application of Lockett or any other clearly established federal law). Thus, even though only two of the three considerations that the Guzek Court identified as underlying its holding are present in this case, this does not render Guzek inapplicable.

Importantly, almost all of the evidence that Holland sought to present at resentencing is exactly the type of new evidence of innocence described in Guzek. Holland assigns error to the resentencing court's refusal to let him call his pathologist, Dr. Riddick, to rebut Dr. McGarry's testimony that King had been raped.FN8 However, Holland never called a pathologist at trial. He elected not to do so because his pathologist at the time, Dr. Steckler, agreed with Dr. McGarry's conclusion that King had been raped. Moreover, Holland chose not to testify during the guilt phase of his trial. Thus, any testimony from Holland that the rape did not occur (as opposed to testimony regarding the circumstances of the rape), would constitute new evidence inconsistent with the jury's guilty verdict. See Shelton, 464 F.3d at 442 (“[B]ecause [the defendant] did not testify at trial, any factual statements about what happened on the night of the murder and his involvement in the crime would have been new evidence not already in the trial record.”). FN9 The only witness who testified during the guilt phase who the court prohibited Holland from recalling was Dr. Canfield, and Holland does not specifically challenge his exclusion on appeal. Regardless, as explained above, see supra note 6, Dr. Canfield would have merely testified that he found no acid phosphates on a vaginal swab taken from King or sperm on a slide taken from her rape kit. This testimony could not have demonstrated that a rape did not occur. Accordingly, the exclusion of Dr. Canfield's testimony, if error, was harmless. See Nixon v. Epps, 405 F.3d 318, 329-30 (5th Cir.2005) (citing Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also Oliver, 541 F.3d at 340-44 (finding a constitutional error harmless under the Brecht standard on habeas review).

FN8. Holland suggests in his brief that the court prohibited him from calling Dr. Riddick altogether. However, this is not true. As explained above, see supra Section I, the court would have permitted Holland to call Dr. Riddick to dispute Dr. McGarry's testimony regarding the nature of King's injuries to rebut the “especially heinous, atrocious, or cruel” aggravating circumstance. The only fact that he could not contest was that Holland raped King, which the guilt-phase jury had previously found.

FN9. We recognize that the rule in Shelton would appear to create a perverse incentive for a defendant when determining whether to testify during the guilt phase of his trial, potentially in violation of the Fifth Amendment. However, the decision in Shelton, based on Guzek, shows-at the very least-that there is no clearly established federal law that would permit a defendant to offer such new evidence during the resentencing phase.

As we noted when granting Holland a COA, however, Guzek is not completely on all fours with this case: in addition to the difference in Oregon and Mississippi law, “there do not appear to have been any overlapping issues between the guilt/innocence phase and the re-sentencing phase in Guzek.” Holland, 230 Fed.Appx. at 384. Notwithstanding these dissimilarities, the holding in Guzek-and its supporting reasoning-demonstrates that Holland does not have the right to present evidence at resentencing that is inconsistent with the verdict of the guilt-phase jury. At the very least, in light of these cases, the Mississippi Supreme Court's denial of Holland's claim “was not contrary to or an unreasonable application of Lockett or any other clearly established federal law as determined by the Supreme Court.” See Shelton, 464 F.3d at 442-43.

C. The Trial Court Did Not Impose Holland's Death Sentence on the Basis of Information He Had No Opportunity to Deny or Explain

Holland argues that the trial court, at resentencing, violated his due process rights by imposing a death sentence on the basis of information that he had no opportunity to deny or explain. In support, Holland relies on two plurality decisions of the Supreme Court: Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), and Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality opinion). In Gardner, a jury found the defendant guilty of the capital murder of his wife, and in a separate sentencing proceeding expressly found that the mitigating circumstances outweighed the aggravating circumstances and therefore recommended a sentence of life imprisonment. 430 U.S. at 352-53, 97 S.Ct. 1197. However, the trial judge, who was the ultimate sentencer at the time, considered a presentence report containing confidential information not disclosed to the defense, and, on the basis of information in the report, sentenced the defendant to death. Id. at 353, 97 S.Ct. 1197. The Supreme Court reversed, with a plurality concluding, apparently broadly, “that [the defendant] was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Id. at 362, 97 S.Ct. 1197. However, as the State notes, Justice White's concurring opinion provided the narrowest ground for decision among the Justices who voted to reverse and is therefore controlling. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....” (internal quotation marks omitted)). Justice White expressly declined to rely on the Due Process Clause and found that “[a] procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the ‘character and record of the individual offender’ ” violates the Eighth Amendment. Gardner, 430 U.S. at 364, 97 S.Ct. 1197 (White, J., concurring in the judgment).

In Simmons, a jury found the defendant guilty of the capital murder of an elderly woman. 512 U.S. at 157, 114 S.Ct. 2187. During the sentencing phase, the prosecution argued that the defendant's future dangerousness was a factor warranting imposition of a death sentence. Id. Notwithstanding evidence suggesting that the jury would likely believe that a life sentence would allow for the possibility of parole, the court refused to allow the defendant to inform the jury that, if sentenced to life imprisonment, he would be ineligible for parole. Id. at 158-60, 114 S.Ct. 2187. The plurality quoted the Gardner plurality's statement that “[t]he Due Process Clause does not allow the execution of a person ‘on the basis of information which he had no opportunity to deny or explain.’ ” Id. at 161, 114 S.Ct. 2187 (quoting Gardner, 430 U.S. at 362, 97 S.Ct. 1197). However, its holding was much narrower: “[W]here the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156, 114 S.Ct. 2187. Moreover, Justice O'Connor's opinion is the controlling opinion, as it provides an even narrower ground of decision:

When the State seeks to show the defendant's future dangerousness, however, the fact that he will never be released from prison will often be the only way that a violent criminal can successfully rebut the State's case. I agree with the Court that in such a case the defendant should be allowed to bring his parole ineligibility to the jury's attention ... as a means of responding to the State's showing of future dangerousness. Id. at 177, 114 S.Ct. 2187 (O'Connor, J., concurring in the judgment).

Holland's reliance upon Gardner and Simmons is thus problematic for several reasons. First, both cases are factually distinguishable from Holland's case. The defendant in Gardner was sentenced on the basis of information which no jury received and of which the defense was not even aware; the defendant in Simmons was essentially prevented from ever contesting the State's argument and from alleviating what he showed to be probable jury confusion. Here, no information was ever kept secret from Holland, the court did not prevent Holland from having the opportunity to ever contest the State's arguments, and there was no evidence of jury confusion. Moreover, Holland did have the opportunity to challenge the fact that he raped King-during the guilt phase of his trial. Neither Gardner nor Simmons suggests that Holland is constitutionally entitled to a second bite at this apple. Second, the narrowest ground of decision in Gardner did not even implicate due process, and that in Simmons was specifically limited to demonstration of parole ineligibility in response to the state's argument for a death sentence on the basis of future dangerousness. Third, in neither Gardner nor Simmons did five Justices agree to the propositions for which Holland cites the cases; accordingly, they are not holdings of the Court and cannot constitute “clearly established Federal law, as determined by the Supreme Court” as required by 28 U.S.C. § 2254(d)(1). See Jacobsen v. United States Postal Service, 993 F.2d 649, 655 (9th Cir.1992); see also Stevens v. Ortiz, 465 F.3d 1229, 1237-38 (10th Cir.2006).

Essentially, Holland's argument premised on Gardner and Simmons boils down to a contention that Holland has the right to introduce evidence of innocence at sentencing. However, as the Mississippi Supreme Court's opinion denying Holland's second direct appeal thoroughly explains, Holland does not have a clearly established constitutional right to do so. As that court observed, federal courts are split on the issue of whether a defendant may introduce evidence of innocence of a crime of conviction at sentencing. See Holland II, 705 So.2d at 325. Multiple circuits have permitted findings of guilt to estop a defendant in a later proceeding. See Hernandez-Uribe v. United States, 515 F.2d 20, 22 (8th Cir.1975) (holding that there is “no violation of any constitutional right of the defendant” when he is collaterally estopped from denying his alien status on the basis of a prior criminal conviction); United States v. Colacurcio, 514 F.2d 1, 6 (9th Cir.1975) (allowing collateral estoppel to apply against a defendant in a criminal case, and holding that “facts actually decided which were essential to the judgment in [a] prior [criminal] case” may be used against a criminal defendant). Two other circuits, however, have prohibited such use of collateral estoppel against a criminal defendant. See United States v. Pelullo, 14 F.3d 881, 896 (3d Cir.1994), rev'd on other grounds, 105 F.3d 117 (3d Cir.1997); United States v. Harnage, 976 F.2d 633, 635-36 (11th Cir.1992) (rejecting application of collateral estoppel against criminal defendants on the ground that it does not sufficiently promote judicial economy and expressly not reaching any due process implications). Yet another court has recognized that the Supreme Court has never addressed the application of collateral estoppel against a criminal defendant. Flittie v. Solem, 775 F.2d 933, 940 (8th Cir.1985). Indeed, the Mississippi Supreme Court noted that state courts are similarly split on this issue. See Holland II, 705 So.2d at 323-24 (citing cases from various states).

This clear split among federal-and state-courts as to whether a defendant does or does not have a constitutional right to present evidence of innocence at sentencing when such evidence would contravene a prior guilty adjudication indicates that the Mississippi Supreme Court's denial of Holland's claim that he had such a right cannot possibly be “contrary to or involve[ ] an unreasonable application of, clearly established Federal law.” See 28 U.S.C. § 2254(d)(1); cf. McDuffie v. Estelle, 935 F.2d 682, 689 (5th Cir.1991) (“Absent binding precedent in this circuit and faced with somewhat conflicting decisions in the two circuits which actually addressed the issue relevant here, we cannot say that the law as set forth by the Ninth Circuit in Clutchette was ‘clearly established’ so as to affect the actions within the Fifth Circuit of the ... defendants in 1976.”).

[9] Furthermore, to the extent that Holland seeks to premise his argument that he has a constitutional right to present evidence of innocence at sentencing upon a right to argue residual or whimsical doubt, his argument fails. Preliminarily, we note that although Holland argued in his second direct appeal that the resentencing court impermissibly prohibited him from introducing evidence of residual or whimsical doubt, he did not raise a similar issue in his amended petition for writ of habeas corpus,FN10 and thus we did not grant a COA on this issue. Consideration of the issue, however, is nonetheless relevant. Notably, the Supreme Court has “fail[ed] to recognize a constitutional right to have such doubts considered as a mitigating factor.” Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion). In Franklin, Justice White, writing for a plurality, explained:

FN10. See Holland, 439 F.Supp.2d at 672 n. 12 (“Holland made many other arguments related to this issue [of whether the court violated his rights by restricting the evidence he could offer at resentencing] in his second direct appeal. However, this Court will consider only the arguments specifically asserted in the Amended Petition. See Fuentes [ v. Dretke, 89 Fed.Appx. 868, 875 (5th Cir.2004).]” (citation omitted)).

Finding a constitutional right to rely on a guilt-phase jury's “residual doubts” about innocence when the defense presents its mitigating case in the penalty phase is arguably inconsistent with the common practice of allowing penalty-only trials on remand of cases where a death sentence-but not the underlying conviction-is struck down on appeal. In fact, this Court has, on several previous occasions, suggested such a method of proceeding on remand. Moreover, petitioner himself, in suggesting the appropriate relief in this case, asked only that he be “resentenced in a proceeding that comports with the requirements of Lockett”-not that he be retried in full so as to have the benefit of any potential guilt-phase “residual doubts.”

In sum, we are quite doubtful that such “penalty-only” trials are violative of a defendant's Eighth Amendment rights. Yet such is the logical conclusion of petitioner's claim of a constitutional right to argue “residual doubts” to a capital sentencing jury. Id. at 173 n. 6, 108 S.Ct. 2320 (citations omitted).FN11

FN11. As the Mississippi Supreme Court recognized in Holland's second direct appeal, “[m]ost federal courts generally follow Franklin.” Holland II, 705 So.2d at 326 (citing Evans v. Thompson, 881 F.2d 117, 120 (4th Cir.1989), and Coleman v. Saffle, 869 F.2d 1377, 1393 (10th Cir.1989)). Moreover, state courts are split on the issue. See Holland II, 705 So.2d at 325 (collecting cases).

In light of the fact that the Supreme Court has not recognized a constitutional right to argue “residual doubt” at sentencing, any argument that the Mississippi court erred by not allowing Holland to argue at resentencing that he did not rape King premised upon a right to argue residual or whimsical doubt does not suffice to demonstrate that the court's holding was “contrary to, or involved an unreasonable application of, clearly established Federal law.” See 28 U.S.C. § 2254(d)(1).

D. The Effect of Rape Being Both an Element of Holland's Crime of Conviction and an Aggravating Circumstance

Although Holland does not argue that it is improper for an aggravating factor to duplicate an element of capital murder-and such an argument would lack merit-we briefly address the fact of the overlap in this case as it bears on our decision. The Supreme Court has explained that “[t]o pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (internal quotation marks omitted). This is the purpose of requiring a jury to find at least one aggravating circumstance before allowing the imposition of the death penalty: “By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition.” Id.

The Supreme Court has long accepted that an aggravating circumstance may duplicate an element of the capital crime of conviction. See Lowenfield v. Phelps, 484 U.S. at 244-46, 108 S.Ct. 546. In Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994), the Court further explained the role of aggravating circumstances:

Our capital punishment cases under the Eighth Amendment address two different aspects of the capital decisionmaking process: the eligibility decision and the selection decision. To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one “aggravating circumstance” (or its equivalent) at either the guilt or penalty phase. The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both). As we have explained, the aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. See Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993) (“If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm”). Second, the aggravating circumstance may not be unconstitutionally vague. Id. at 971-72, 114 S.Ct. 2630 (citations omitted). Thus, as long as an aggravating circumstance serves to narrow the class of defendants convicted of murder (and is not unconstitutionally vague), it “may be contained in the definition of the crime [of conviction] or in a separate sentencing factor ( or in both).” Id. at 972, 114 S.Ct. 2630 (emphases added). The Court's use of the word “or” in this requirement indicates that a jury must find this factor only once to render a death sentence (assuming all other requirements are satisfied). The Court's language clearly indicates that a jury need not find an aggravating circumstance at both the guilt and sentencing phases. FN12. The rationale underlying this rule is, admittedly, not as strong when a defendant is convicted and sentenced by different juries.

Thus, in this case, Holland's death sentence could stand even if the State had not presented the “rape” aggravating factor to the resentencing jury. Indeed, to satisfy federal constitutional requirements, that jury did not even need to find the existence of the two other aggravating circumstances (the “to avoid arrest” and “especially heinous” circumstances), so long as it did not find sufficient mitigating factors to warrant imposition of a life sentence rather than death: the original jury found the required “aggravating circumstance”-better termed a “narrowing circumstance”-when it found Holland guilty of capital murder (as opposed to simply murder). The fact that the court precluded Holland from contesting the rape at resentencing-thereby effectively preventing him from disputing the existence of the “rape” aggravating circumstance-therefore did not prejudice him.

Importantly, the entirety of Dr. McGarry's testimony regarding King's rape and murder was relevant not only to the “rape” aggravator but also to the aggravating circumstance that “the capital offense was especially heinous, atrocious, or cruel.” Thus, even had the court not submitted the rape aggravator to the jury, the State would have still been able to introduce Dr. McGarry's testimony in its entirety. The inclusion of the rape aggravator therefore could not have prejudiced Holland by allowing testimony to be presented to the resentencing jury that otherwise would not have been.

E. Miscellaneous Arguments

Holland makes two other arguments, both of which lack merit. First, Holland argues that the resentencing court essentially-and improperly-directed a verdict on the issue of whether Holland murdered King during the commission of the crime of rape. However, the court expressly stated that “there would not be a directed verdict granted by the Court.” The fact that the court allowed the State to reintroduce evidence from the guilt phase, as expressly permitted by Mississippi state law not challenged here, see Jackson, 337 So.2d at 1256, does not constitute a directed verdict.

Second, Holland argues that it was error for the resentencing court to inform jurors that Holland was eligible for the death penalty. In so arguing, Holland misconstrues the meaning of “death eligibility.” As explained above, Mississippi capital punishment cases involve two distinct decisions: the eligibility decision and the selection decision. See Tuilaepa, 512 U.S. at 971, 114 S.Ct. 2630. Here, the guilt-phase jury made the first decision when it found Holland guilty of capital murder. Based on this finding, Holland became death-eligible. However, the selection decision-whether or not to impose the death penalty for which Holland was eligible-remained. It was this decision that was within the province of the resentencing jury. The question of Holland's eligibility for the death penalty was already settled.FN13

FN13. Holland further argues in his brief that the district court erred in denying him habeas relief on the ground that he was denied the right to be tried by a fair and impartial jury during the guilt phase of his trial. However, we previously denied Holland's request for a COA on this issue, see Holland, 230 Fed.Appx. at 378-80, and therefore lack jurisdiction to consider it, see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’ ” (quoting 28 U.S.C. § 2253(c)(1)) (omission in original)).

IV. CONCLUSION

For the reasons herein, the Mississippi Supreme Court's denial of Holland's claim for habeas relief was not “contrary to” and did not “involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” Thus, Holland is not entitled to relief under 28 U.S.C. § 2254. We therefore AFFIRM the district court's denial of Holland's request for habeas relief.