Paul Everette Woodward

Executed May 19, 2010 at 6:39 p.m. by Lethal Injection in Mississippi


20th murderer executed in U.S. in 2010
1208th murderer executed in U.S. since 1976
1st murderer executed in Mississippi in 2010
11th murderer executed in Mississippi since 1976


Since 1976
Date of Execution
State
Method
Murderer
(Race/Sex/Age at Murder-Execution)
Date of
Birth
Victim(s)
(Race/Sex/Age at Murder)
Date of
Murder
Method of
Murder
Relationship
to Murderer
Date of
Sentence
1208
05-19-10
MS
Lethal Injection
Paul Everette Woodward

W / M / 38 - 62

01-17-48
Rhonda Crane

W / F / 24

07-23-86
Handgun
None
04-29-87
09-15-95

Summary:
24 year old Rhonda Crane had been traveling on Mississippi 29 in Perry County to join her family for a camping trip when Woodward, then working as a logger, used his work truck to make her to stop. He forced her into his logging truck at gunpoint and took her to a secluded area, where he raped her. Woodward then shot Crane in the back of the head and left her to die. Woodward ultimately made written and videotaped confessions and admitted to his boss that he had killed Crane, who was a volunteer with the Jackson County Youth Court.

Citations:
Woodward v. State, 533 So.2d 418 (Miss. 1988). (Direct Appeal)
Woodward v. State, 635 So.2d 805 (Miss. 1993). (PCR)
Woodward v. State, 726 So.2d 524 (Miss. 1997). (Direct Appeal After Remand)
Woodward v. Epps, 580 F.3d 318 (5th Cir. 2009) (Habeas).

Final/Special Meal:
Hamburger (grilled, well done, seasoned with salt & pepper) on a real bun with mustard, mayonnaise, lettuce, tomato, onion and dill pickle, French fries with salt, fried onion rings, a bowl of chili without beans, a pint of vanilla ice cream and two 20oz. root beers.

Final Words:
"Thank you warden - I'm sorry, I mean commissioner. I would like to say the Lord's Prayer." Woodward invited others in the execution room to join in.

Internet Sources:

Jackson Clarion-Ledger

"First of back-to-back executions carried out," by Elizabeth Crisp. (May 20, 2010)

PARCHMAN — Before he died Wednesday evening, death row inmate Paul Everette Woodward asked witnesses to join him in reciting the Lord's Prayer, but he never publicly showed remorse for the 1986 kidnapping, rape and murder of Rhonda Holloman Crane, of Escatawpa.

Woodward, 62, was pronounced dead by lethal injection at 6:39 p.m. in the first of two back-to-back executions scheduled this week. Gerald Holland, 72, is scheduled for execution at 6:15 p.m. today. Like Woodward, he also has asked Gov. Haley Barbour for clemency. Barbour denied Woodward's request just hours before Wednesday's execution - Mississippi's first since 2008.

The execution followed more than two decades of legal battles over whether Woodward should be put to death for Crane's murder. A Hinds County jury convicted Woodward in 1987 after the case was moved from Perry County because of pretrial publicity. But he was resentenced six years later because of a technicality. Crane, 25, had been traveling on Mississippi 29 in Perry County to join her family for a camping trip when Woodward, then working as a logger, used his work truck to make her to stop. He forced her into his logging truck at gunpoint and took her to a secluded area, where he raped her. Woodward then shot Crane in the back of the head and left her to die.

"I thought this day would never come," said Crane's sister, Renee Lander, who witnessed the execution, speaking at a news conference after the execution. "We waited a long time to see him put to death. I'm very glad to have seen him take his last breath. I wish it could have been brutal like Rhonda's death."

Woodward did not know Crane."The scary part to me is that the victim could have been any young lady - any female," Corrections Commissioner Chris Epps said. According to court records, Woodward ultimately made written and videotaped confessions and admitted to his boss that he had killed Crane, who was a volunteer with the Jackson County Youth Court.

During the trial, Woodward's attorneys told the jury that Woodward had a "dark influence" over him and claimed to have conversations with the devil, court records show. Attorneys also disclosed that Woodward previously had been committed to the state mental hospital at Whitfield and had been arrested at least twice before. "One reason for admitting these prior bad acts was our defense theory that Paul had been 'troubled' all his life and had wrestled with good versus evil," his attorney, Terryl Rushing, wrote in an affidavit contained in his appeal to the Mississippi Supreme Court. "He had always striven to do the right thing but was overwhelmed at the time he killed Rhonda Crane."

Mississippi has executed 10 others since the U.S. Supreme Court reinstated the death penalty in 1976.

Described as active and talkative in his final hours, Woodward visited with spiritual adviser Buck Buchannan, and finished his last meal. He had a grilled hamburger - well done and seasoned with salt and pepper - dressed with mustard, mayonnaise, lettuce, tomato, onion and pickles; French fries with salt; fried onion rings; a bowl of chili without beans; a pint of vanilla ice cream and two 20-ounce root beers at about 5 p.m., while meeting with Mississippi State Penitentiary chaplain James Whisnet.

Epps said the 307-pound Woodward ate everything "except a few of his French fries." The inmate had been eating lightly earlier in the day. "He told me he was saving room for his last meal," Epps said. Woodward did not take a sedative before the execution.

Though he was believed to have had at least five children and 11 grandchildren, Woodward took no family visits in his final days and made no calls to relatives. "I think a reasonable person would assume he doesn't have close family ties," Epps said. Three protesters wearing shirts with anti-death penalty slogans stood at the Parchman entrance as a mix of sodium pentothal, saline, pavulon and potassium chloride was pumped into Woodward's veins. His body was released to the University of Mississippi Medical Center at his request.

Though he did not publicly express remorse or discuss Crane's death in the hours leading up to his death, Epps said he asked Woodward about it privately. "His voice started shivering and he said 'Yes sir, I do. I wish I could take it all back,' " Epps recounted. Woodward's final words were: "Thank you warden - I'm sorry, I mean commissioner.

Epps, who first met Woodward when he was admitted to Parchman in 1987, said the inmate always had been talkative and followed the rules. He had just two infractions - both in 1993 - in the 23 years he was imprisoned. Mississippi now has 60 inmates on death row, including Holland, who is scheduled to die for the 1986 rape and murder of Krystal Dee King on her 15th birthday in Gulfport. Epps noted the last time the state had back-to-back executions was 1961 - the year Epps was born. "I have received word that we may be doing some more (executions) this year," he said.

Lander said her family had been disappointed by repeated delays in Woodward's execution. She said she thought it should have happened years ago. "He had many, many appeals and he gave Rhonda none," she said. Epps agreed 23 years is a long time for a prisoner to sit on death row. "We talk about finance and expense ... I think it's also important that we think about the victims' family and what they have to go through," he said. Lander said the delay of the execution created "anger" in her family. "It made my father ... more bitter knowing he was still alive," she said.

WOODWARD TIMELINE

•July 23, 1986: Rhonda Crane is kidnapped, raped and murdered in Perry County.
•July 24, 1986: Crane’s body is found. Paul Everette Woodward is arrested.
•April 29, 1987: Woodward is convicted and sentenced to death by lethal injection.
•October 1988: The Mississippi Supreme Court upholds Woodward’s conviction.
•October 1993: The state high court orders a resentencing hearing for Woodward because of a U.S. Supreme Court decision that prohibited prosecutors from using the words “heinous,” “atrocious” and “cruel” to describe a death.
•Sept.1995: A Perry County jury hands down another death sentence to Woodward.
•Dec.18, 1997: The state Supreme Court refuses to grant Woodward a new sentencing.
•March 6, 2003: Mississippi justices turn down Woodward’s post-conviction petition.
•August 2009: The 5th Circuit Court of Appeals denies Woodward’s request for habeas relief.
•May 4, 2010: The Mississippi Supreme Court sets Woodward’s execution date.
•Monday: The state Supreme Court rejects Woodward’s motion to halt his execution.
•Wednesday: Woodward is executed at 6:15 p.m.

Mississippi Department of Corrections

Mississippi Department of Corrections
Offender Data Sheet
Inmate: PAUL EVERETT WOODWARD
Offender Number: 45981
Date Of Birth: 01/17/1948
FBI#: 381028J8
Height: 5'10"
Weight: 307 lbs
Hair Color: GREY OR PART
Complexion: FAIR
Race: WHITE
Sex: MALE
Eye Color: BLUE
Build: EXTRA LARGE

1 HOMICIDE- 04/29/1987 PERRY DEATH
2 KIDNAP- 04/29/1987 PERRY 30 YEARS
3 SEX ASSAULT 04/29/1987 PERRY 30 YEARS

Date: May 19, 2010
Contact: Tara Booth
Phone: (601) 359-5701
Email: tbooth@mdoc.state.ms.us

May 19, 2010 Execution of Paul E. Woodward - 7:00 p.m. News Briefing

Parchman, Miss. - The Mississippi Department of Corrections (MDOC) today conducted the mandated execution of state inmate Paul E. Woodward. Inmate Woodward was pronounced dead at 6:39 p.m. at the state penitentiary at Parchman.

MDOC Commissioner Christopher Epps said during a press conference following the execution that the evening marked the close of the Paul E. Woodward case. Woodward was convicted in 1987 for the crimes of capital murder (with the underlying crime of rape), kidnapping and sexual battery of Rhonda Crane in Perry County in 1986.

“It is our agency’s role to see that the order of the court is carried out professionally with dignity and decency. That has been done and justice was championed today,” said MDOC Commissioner Chris Epps. In this final chapter tonight, it is our heartfelt hope that the family of Rhonda Crane may now begin the process of healing. Our prayers go out to you as you continue life’s journey,” said Epps.

Epps concluded his comments by commending Deputy Commissioner of Institutions Emmitt Sparkman and the entire Mississippi State Penitentiary security staff for their professionalism during the process.

###

May 19, 2010 Scheduled Execution of Paul E. Woodward - 2:00 p.m. News Briefing

Parchman, Miss. - The Mississippi Department of Corrections (MDOC) will hold three news briefings today related to events surrounding the Wednesday, May 19th scheduled execution of death row Inmate Paul E. Woodward, MDOC #45981. The following is an update on Inmate Woodward’s recent visits and telephone calls, activities, last meal to be served, and the official list of execution witnesses.

Visits with Inmate Paul E. Woodward - Tuesday, May 18, 2010

Inmate Woodward did visit from 1:15 pm until 3:00 with attorneys C. Jackson Williams and Nina Rifkind.

Wednesday, May 19, 2010
Allowed visits with attorneys, spiritual advisor and family and friends from 1:00 p.m. until 3:00 p.m.

Inmate Woodward has requested no visits with family.

Approved visitation list:
C. Jackson Williams (Attorney)
Nina Rifkind (Attorney)
Spiritual advisor William “Buck” Buchanan

Activities of Woodward

This morning at 5:10 a.m., for breakfast, Inmate Woodward was offered 4oz oatmeal, 1 roll, ham, milk, 2 eggs, and syrup. Inmate Woodward did consume the roll, the syrup and the milk.

Inmate Woodward was offered lunch today consisting of 1 roll, 4oz pork, 4oz pinto beans, 1 square cake, 4oz steamed cabbage, 1 milk. Inmate Woodward did consume ˝ portion of cabbage, ˝ portion of pork, and the milk.

Inmate Woodward has access to a telephone to place unlimited collect calls to persons on his approved telephone list. He had access to the phone from 8:00 a.m. to 5:00 p.m. on Tuesday and will have access today, May 19th from 8:00 a.m. until 5:00 p.m.

2:00 p.m. News Briefing – Scheduled Execution of Paul E. Woodward Inmate Woodward made no phone calls yesterday and has made no calls thus far today. According to the MDOC correctional officers that are posted outside his cell, Inmate Woodward is observed to be active and talkative.

Inmate Woodward has requested that his body be released to the University of Mississippi Medical Center.

Inmate Woodward requested the following as his last meal: hamburger (grilled, well done, seasoned with salt & pepper) on a real bun with mustard, mayonnaise, lettuce, tomato, onion and dill pickle, French fries with salt, fried onion rings, a bowl of chili without beans, a pint of vanilla ice cream and two 20oz. root beers.

Inmate Woodward’s Collect Telephone Calls - Tuesday, May 18, 2010 No phone calls.

Execution Witnesses

Condemned Inmate Woodward requested no spiritual advisor witness the execution
Condemned’s Inmate Woodward requested no family witness the execution
Attorneys for the condemned - C. Jackson Williams
Member(s) of the victims’ family - Renee Ladner (Sister of Rhonda Crane)
Sheriff Sheriff Jimmy Dale Smith, Perry County
Governor’s Witness Serena Clark
8 Members of the Media
Rick Cleveland, Clarion Ledger
Woodrow Wilkins, WXVT-TV
Carl Gibson, MS Public Broadcasting
Randy Bell, Clear Channel Radio
Mike McDaniel, WDAM-TV
Jack Elliott, Associated Press
Keith Hill, Mississippi News Network
Ed Kemp, Hattiesburg American

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

Source: Mississippi Department of Corrections, Mississippi State Penitentiary

CBS News

"Mississippi Executes Paul Everette Woodward, 305 Pound Killer, for '86 Rape-Slay of Rhonda Crane," by Edecio Martinez. (May 20, 2010)

PARCHMAN, Miss. (CBS/AP) Paul Everette Woodward said a prayer before being put to death by lethal injection Wednesday for the 1986 rape and murder of 24-year-old Rhonda Crane. "I would like to say the Lord's Prayer," Woodward said, inviting others in the execution room to join in. After the prayer, the 62-year-old, who weighed 305 pounds, took a couple of heavy breaths, turned his head to the left and closed his eyes. He was pronounced dead at 6:39 p.m. by Sunflower County Coroner Heather Burton at the state penitentiary in Parchman.

Woodward was convicted of capital murder in 1987 for raping and killing Crane, a Jackson County Youth Court volunteer. Crane was driving in July 1986 to join her parents for a family camping trip when Woodward used his log truck to force her to stop on Mississippi Highway 29 south of New Augusta, prosecutors said. Woodward, who was 38 at the time, kidnapped and raped Crane, then shot her to death.

Woodward did not fight his execution beyond an appeal to Gov. Haley Barbour for clemency, which the governor denied Wednesday.

Renee Lander, the victim's sister, told reporters at a post-execution news conference that the family wasn't sure this day would come. "We waited a long time to see him put to death. I am very glad to see him take his last breath," Lander said. "I wish it had been brutal like Rhonda's death."

Hattiesburg American

"His last breath: Woodward executed," by Jack Elliott Jr. (Associated Press • May 20, 2010)

PARCHMAN — Paul Everette Woodward was put to death by lethal injection Wednesday for the 1986 rape and murder of a 24-year-old Escatawpa woman. Woodward, clad in a red prison jumpsuit and sandals, was pronounced dead at 6:39 p.m. by Sunflower County Coroner Heather Burton at the state penitentiary in Parchman. "I would like to say the Lord's Prayer," Woodward said, inviting others in the execution room to join in. After the prayer, Woodward, a large man at 305 pounds, took a couple of heavy breaths, turned his head to the left and closed his eyes.

His attorney, C. Jackson Williams of Oxford, left the building without commenting. Woodward did not fight his execution beyond an appeal to Gov. Haley Barbour for clemency, which the governor denied Wednesday. Renee Lander of Escatawpa, the victim's sister, told reporters at a post-execution news conference that the family wasn't sure this day would come. "We waited a long time to see him put to death. I am very glad to see him take his last breath. I wish it had been brutal like Rhonda's death. "There was never any question about his guilt. His death didn't change anything that happened. He lived 24 years longer than Rhonda," she said.

Woodward's execution was one of two set in as many days. Gerald James Holland is scheduled to be executed today at 6 p.m.

Woodward, 62, was convicted of capital murder in 1987 for raping and killing Rhonda Crane, a Jackson County Youth Court volunteer. Crane was driving in July 1986 to join her parents for a family camping trip when Woodward used his log truck to force her to stop on Mississippi Highway 29 south of New Augusta, prosecutors said. Woodward, who was 38 at the time, kidnapped and raped Crane, then shot her to death, prosecutors said.

Corrections Commissioner Christopher Epps said Woodward asked that his body be turned over to the University of Mississippi Medical Center in Jackson. He said Woodward asked for no family members to witness the execution. Epps said Woodward appeared in a good mood as he prepared to die. His last meal was hamburger and fries and 2 20-ounce root beers. "He never knew the victim. The scary part for me, having been in law enforcement, is that victim could have been any young lady," Epps said.

The Mississippi Supreme Court declined to halt the executions of Woodward and Holland. Holland has also asked Barbour for clemency. No decision from the governor has been announced.

Holland, 72, was sentenced to death for raping and killing 15-year-old Krystal King of Gulfport in 1987. He is the oldest death-row inmate in Mississippi. The Mississippi Supreme Court on Wednesday refused to stop Holland's execution based on the appeal of a lawsuit filed on behalf of 16 condemned inmates. Woodward was not a party in that lawsuit.

The last back-to-back executions happened in 1961, according to Mississippi Department of Corrections records. Howard Cook was executed on Dec. 19, 1961, and Ellic Lee was put to death the following day.

AT A GLANCE
AGE: 62
HOMETOWN: Monticello
CRIME: Convicted in 1987 for raping and killing Rhonda Crane, 24, of Escatawpa
LAST MEAL: Hamburger - grilled, well done, seasoned with salt and pepper - with mustard, mayonnaise, lettuce, tomato, onion and pickles; french fries with salt; fried onion rings; a bowl of chili without beans; a pint of vanilla ice cream and two 20-ounce root beers.

Hattiesburg American

"Waiting a big part of this story," by Ed Kemp. (May 20, 2010)

The worst part is the waiting. I'm not talking about the day-long wait at the Mississippi State Penitentiary at Parchman, in anticipation of the execution of death row inmate Paul Everette Woodward. That was like a glorified high school study hall, as about 15 members from media outlets ranging from Greenville to the Associated Press to Mississippi Public Broadcasting were thrown together in a one-story inmate visitation room. We tapped away at computers and fidgeted with cameras under signs reading "Shake Down Line Only" and "No Money Past this Point." In between, Mississippi Department of Corrections Commissioner Christopher Epps briefed us on Woodward's visitors; his eating habits; his signs, if any, of remorse.

No, I'm talking about the long wait in the MDOC van right before the scheduled 6 p.m. execution, as Clarion-Ledger reporter Rick Cleveland, WDAM broadcaster Mike McDaniel, Randy Bell of Clear Channel Radio and I were transported from the inmate visitation room across acres of farmland to the victim's execution observation room. Thirty minutes? 40 minutes? It was hard to tell. Watches were forbidden, one of many security measures outlined by MDOC communications director Suzanne Singletary.

We were told later by Epps that the long wait was related to sticking the IV into Woodward's vein. We passed the time chatting about deadlines. About the facts of the murder case. About the wait. And we did the required execution experience tally. Among McDaniel, Cleveland and me, it went like this: "You ever been to an execution before?" "No." "Me neither."

Bell had us rookies beat, having seen four previous executions. Then we disembarked and watched the execution from the well-air-conditioned observation room in what seemed an almost anti-climactic moment. Woodward recited the Lord's Prayer verbatim, thanked Epps and then, with a couple of faint chest heaves, slowly faded from life. He was pronounced dead at 6:39 p.m.

Waiting, of course, is a huge part of this story. Victim Rhonda Crane's sister Renee Ladner watched Woodward die from the observation room. She squeezed the hand of MDOC victim's service director Melinda Box, before sitting solemnly watching the last breaths of her sister's murderer. Then later from the podium, she gave a statement to the media, as her daughter Kelli Belcher held up a photo of Crane that was taken when she was 18.

She used the word "bitterness" to describe how she and other family members felt that Woodward had lived 24 years after the murder he had committed, including 23 after first being sentenced to death. "I think it needs to be swifter," she said of the death penalty. She noted that Woodward had only given her sister one hour to live after he steered her car from the road that day in July. "He had many appeals and he didn't give any to Rhonda," she said. Absorbing the act of seeing Woodward die and Ladner's simmering grief was hard thing to do on a Wednesday night - my first witnessed execution.

In the end Woodrow Wilkins, longtime reporter for the Delta Democratic Times and current reporter with WXVT in Greenville who sat next to me at a table in the press room, may have summed it up best. He said this was the third execution he had covered and second witnessed. "We're here to do a job. The corrections officers are here to do a job," he said. "I like to think that we're here to see that protocol is followed."

ProDeathPenalty.com

Around noon on July 23, 1986, Rhonda Crane, age twenty-four, was traveling on Mississippi Highway 29 south of New Augusta in Perry County, Mississippi to join her parents on a camping trip. Paul Everette Woodward driving a white log truck forced her car to stop in the middle of the road. He then exited the truck with a pistol in his hand and forced Rhonda to get into his truck. Woodward then drove the victim to an isolated area, forced her out of his truck and into the woods at gunpoint and forced her to have sexual relations with him. Rhonda Crane was shot in the back of her head and died.

Rhonda’s automobile was left on the highway with the engine running, the driver’s door open and her purse on the car seat. A motorist traveling in a vehicle on the same highway saw a white colored, unloaded, logging truck moving away from the victim's vehicle, and notified the authorities. Additionally, a housewife residing on a bluff along the highway at the location of the car noted a logging truck with a white cab stop in front of her driveway. A white male exited and walked toward the back of his truck and returned with a blonde haired woman wearing yellow clothing. As he held her by her arm, the male yelled sufficiently loud for the housewife to hear the words “get in, get in,” and forced the blonde woman into the driver’s door of the truck and then drove off. The housewife investigated the scene on the highway in front of her house, discovered the abandoned car, and notified the authorities.

Law enforcement officers began an investigation to locate Rhonda Crane. The officers discovered that Paul Everette Woodward unloaded logs at a pulp mill and departed the yard at 11:36 a.m. in a white Mack log truck. Woodward arrived at his wood yard at approximately 12:45 to 1:00 p.m. The yard manager noted that he was late arriving at the yard and was wet from sweating. A drive from the mill to the wood yard takes approximately thirty minutes. A sheriff’s deputy stopped Woodward, who was driving a white Mack logging truck, around 2:00 p.m. on the afternoon of July 23, to ask if he had seen anything that would assist in the investigation of Rhonda Crane’s disappearance. Woodward replied that he had not seen anything.

Woodward v. State, 533 So.2d 418 (Miss. 1988). (Direct Appeal)

Defendant was convicted in the Circuit Court, Hinds County, of capital murder, kidnapping, and sexual battery. Defendant appealed. The Supreme Court, Prather, J., held that: (1) crimes could be charged in single indictment; (2) kidnapping and sexual battery based on fellatio were not same offense for double jeopardy purposes as felony capital murder during forcible, sexual intercourse; and (3) search of defendant's truck for blue topped fountain pens after investigator had previously conducted valid consent search, seen pens in truck, learned of similar pen at crime scene, and realized significance of pens was reasonable whether it was conducted before or after arrest. Affirmed. Robertson, J., concurred by separate written opinion.

PRATHER, Justice, for the Court:

Paul Everette Woodward was convicted of the crimes of capital murder, kidnapping and sexual battery of Rhonda Crane, and sentenced to death. Venue was changed from Perry County to the Circuit Court of Hinds County. On appeal, Woodward presents the following issues for review:

AS TO THE GUILT/INNOCENCE PHASE

I. The multi-count indictment was prejudicial and should have been quashed by the trial court.
II. The trial court committed reversible error in excusing for cause venirepersons, Mary Magee and Ella M. Lewis.
III. The trial court erred in denying the motion to quash the jury panel because of the prejudicial effect of the State's opening statement before voir dire examination of the jury.
IV. The trial court erred in overruling the appellant's motion to suppress the physical evidence consisting of a pack of Reliance ink pens which were removed from the vehicle of the appellant.
V. The trial court erred in failing to suppress the confessions of the defendant.
VI. The trial court erred in its failure to grant a circumstantial evidence instruction.
VII. The State failed to prove the underlying felony of rape.

AS TO GUILT AND SENTENCE PHASE

VIII. Cumulative errors which took place during the course of the trial denied the appellant a fair trial:
A. The continuous staring at the defendant by the victim's father while he testified.
B. The use of extraneous comments, or “rabbit trailing” by the district attorney.
C. The District Attorney throwing a pistol across the courtroom floor.
D. The District Attorney loading the pistol in the presence of the jury during closing argument.
E. The District Attorney's alleged improper argument during the sentence phase that the defendant should receive the death penalty because of danger to prisoners in Parchman.

STATEMENT OF THE FACTS

Mrs. Crane's automobile was left on the highway with the engine running, the driver's door open and her purse on the car seat. Within seconds of her kidnapping, a motorist traveling in a vehicle on the same highway saw a white colored unloaded logging truck moving away from the Crane vehicle. Realizing that something unusual was occurring, the motorist notified the law enforcement authorities. Additionally, a housewife residing on a bluff along the highway at the location of the Crane car noted a logging truck with a white cab stop in front of her driveway. A white male exited and walked toward the back of his truck and returned with a blonde haired woman wearing yellow clothing. As he held her by her arm, the male yelled sufficiently loud for the housewife to hear the words “get in, get in,” and forced the blond woman into the driver's door of the truck and then drove off. Hearing a sound like a running motor, the housewife investigated the scene on the highway in front of her house and also discovered the abandoned Crane car. This was reported to the Sheriff's office.

Law enforcement officers identified the ownership of the Crane vehicle and its occupant and immediately began an investigation to locate Mrs. Crane. Their investigation developed the following facts. Paul Everette Woodward unloaded logs at the Leaf River Forest Products, a pulp mill, and departed the yard at 11:36 a.m. in a white Mack log truck. Woodward arrived at his wood yard, Walley Timber Company, at approximately 12:45 to 1:00 p.m. The yard manager noted that he was late arriving back at the yard and was wet from sweating. A drive from Leaf River to Walley takes approximately thirty minutes. A sheriff's deputy stopped Woodward, who was driving a white Mack logging truck, around 2:00 p.m. on the afternoon of July 23, to ask if he had seen anything that would assist in the investigation of Rhonda Crane's disappearance. Woodward replied that he had not seen anything.

Through the investigation, it was ascertained that Paul Everette Woodward was the only driver of a white colored logging truck operating at the nearby timber yards on that date. On the following date, the body of Rhonda Crane was located in the nearby wooded area by her father and a friend. She was wearing a yellow shirt and a blue topped fountain pen was found at the scene.

Upon a motion for change of venue, Paul Woodward was tried before a jury in Hinds County and convicted of all three counts of the indictment. After a separate sentencing hearing, the jury sentenced Paul Everette Woodward to death.

THE GUILT/INNOCENCE PHASE
I. WAS THE MULTI-COUNT INDICTMENT PREJUDICIAL AND SHOULD IT HAVE BEEN QUASHED?

After Woodward was indicted on September 8, 1986, he filed a demurrer and motion to quash the indictment contending that the muliple count indictment was prejudicial and denied him due process of law. The lower court entered an order overruling and denying the demurrer and motion to quash. Woodward raises two issues in this assignment: (1) that he was prejudiced by assigning three felony crimes in a single indictment and (2) that under the merger doctrine there should be only one capital charge. Thus, this Court addresses the question.

In relevant part, the state legislature has defined capital murder as follows: The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: ... (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies.... Miss.Code Ann. § 97-3-19(2)(e) (Supp.1987).

The Legislature recently authorized the use of single multi-count indictments as follows: (1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan. (2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding. (3) When a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction. (4) The jury or the court, in cases in which the jury is waived, shall return a separate verdict for each count of an indictment drawn under subsection (1) of this section. (5) Nothing contained in this section shall be construed to prohibit the court from exercising its statutory authority to suspend either the imposition or execution of any sentence or sentences imposed hereunder, nor to prohibit the court from exercising its discretion to impose such sentences to run either concurrently with or consecutively to each other or any other sentence or sentences previously imposed upon the defendant. Miss.Code Ann. § 99-7-2 (Supp.1987). (Effective from and after July 1, 1986).

This Court has historically disapproved of a single multiple count indictment because of the possibility of the exact complaint that Woodward makes here, the pyramiding of multiple punishments growing out of the same set of operative facts. Thomas v. State, 474 So.2d 604 (Miss.1985). However, the cases relied upon by the defendant were decided before enactment of the multi-count indictment statute effective July 1, 1986.

The Legislature has now addressed the use of the single indictment containing multi-counts, and it has stated that as a matter of state policy no objection may be validly raised to an indictment containing multi-counts if the statute is otherwise followed. Thus, this Court holds that there is no error in the State's charging of three felony counts within a single indictment since this indictment was returned after the effective date of the statute and followed its dictates.

Secondly, Woodward argues that all three counts of the indictment arose out of the same incident. Under Miss.Code Ann. § 97-3-19, capital murder is murder committed during the commission of the crime of rape, kidnapping or sexual battery. The defendant contends he should have been charged in one single count of only capital murder because the provisions of the statute merged the crimes of kidnapping, sexual battery and rape into capital murder if murder was committed while the person was engaged in the commission of those underlying crimes.

The U.S. Supreme Court has held that the double jeopardy clause does not prohibit states from prosecuting an accused for multiple offenses in a single prosecution. Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425, 434 (1984).

Woodward appeals to Justice Robertson's concurring statements in Dixon v. State, 465 So.2d 1092, 1099 (Miss.1985), and in Thomas v. State, 474 So.2d 604, 607-608 (Miss.1985), that a defendant may be convicted and sentenced for felony murder or the felony, but not both, due to the federal and state double jeopardy clauses and the common law merger rule. Faraga v. State, 514 So.2d 295, 312 (Miss.1987) (Robertson, J., concurring). However, the precise question here is whether the defendant may be convicted of both felony murder and another felony or felonies which were not used as a basis for the felony murder charge in a multi-count indictment arising out of the same transaction or occurrence. The courts have rarely touched on this question. However, numerous cases address the problem of a conviction for both capital murder and the underlying felony.

At the most, the double jeopardy clause is violated only if the charges for the felony murder and the underlying felony are tried separately: When as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) [ followed in Payne v. Virginia, 468 U.S. 1062, 104 S.Ct. 3573, 82 L.Ed.2d 801 (1984) ]. “In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy-protection against cumulative punishments-is designed to insure that the sentencing discretion of courts is confined to the limits established by the Legislature.” Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-2541, 81 L.Ed.2d 425, 433 (1984).

This Court has relied upon Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) to support the position that a criminal defendant may be prosecuted for more than one statutory offense arising out of a basic set of facts. Harden v. State, 460 So.2d 1194, 1199 (Miss.1984).

In the instant case, it cannot be said that kidnapping or sexual battery is the same offense as capital murder in the commission of the crime of rape. Each offense requires proof of at least one element which the other does not contain. The kidnapping and sexual battery charges would not merge because they were acts separate and distinct from the act producing the death of Rhonda Crane. Based upon Woodward's confessions, the sexual battery with which he was charged was a separate crime from the rape. The rape charge requires proof of forcible, natural sexual intercourse, Miss.Code Ann. § 97-3-65 (Supp.1987), whereas the sexual battery charge requires proof of any sexual penetration, in this case fellatio, without the victim's consent, Miss.Code Ann. §§ 97-3-95 and 97-3-97(a) (Supp.1987). As seen in Woodward's confessions, in the indictment and in the instructions, the rape charge and the sexual battery charge were for two separate acts. Therefore, the underlying felony of rape has not been separately charged.

Any doubt as to the validity of the multi-count indictment should be dispelled by McFee v. State, 511 So.2d 130 (Miss.1987), wherein the defendant was originally indicted for capital murder of the rape victim, but the underlying felony used was burglary. The defendant pled guilty to simple murder, and afterwards, prosecution for the rape charge was commenced. This Court stated that nothing in the capital murder indictment suggested that the defendant committed rape and that the prosecution was well within its prerogatives in seeking an indictment and trial on the additional charge of rape. Id. at 132-133.

Finally, this Court has consistently rejected any claims that the underlying felony merges into the capital murder due to the language of the felony murder statute. The statutory provisions dealing with murder and the particular felonies are intended to protect different societal interests. Smith v. State, 499 So.2d 750, 753-54 (Miss.1986); Faraga v. State, 514 So.2d 295, 302-303 (Miss.1987). The trial court is affirmed in his denial of the motion to quash the indictment.

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN EXCUSING FOR CAUSE VENIREPERSONS MARY MAGEE AND ELLA M. LEWIS?

At issue in the assigning of this error is whether the two venire persons were excused because of their views on the death penalty or because of their incompetence. The basis for this challenge arises under the holding of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Witherspoon rule holds that the death penalty could not be imposed where “the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 785 (1968). In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Court reexamined Witherspoon and held that a juror could not be excluded for cause unless his views about capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with the court's instructions and his oath. This holding was reaffirmed in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). See also Lockett v. State, 517 So.2d 1317, 1335 (Miss.1987); Wiley v. State, 484 So.2d 339 (Miss.1986); Fuselier v. State, 468 So.2d 45, 53-54 (Miss.1985).

To answer the issue of whether the venirepersons were excused because of their death penalty views or their incompetence can be answered by the facts of this record, which are as follows: The State challenged Mary Magee, who slept during the course of voir dire, at first, without the court noticing it. Once she snored; then subsequently while sleeping again, the court said something to her. The voir dire of prospective jurors lasted for three days. Mary McGee indicated that her drowsiness was caused from nervousness. She had not slept well the night before, but she answered that it would not interfere with her jury service. The court struck her for cause because of her incompetency.

The State next challenged Ella M. Lewis for cause because she had been disabled since the 1950's, was taking medication for various ailments and was a self-proclaimed genius. Her speech was slurred and she had difficulty responding appropriately to questions. The court had to admonish her on a couple of occasions when she approached the bench at inappropriate times. She was the individual who was one hour and five minutes late for voir dire on the third day. Lewis answered the question that she could serve as a juror, and indicated the reason for her tardiness was that she overslept. The court added that her responses in chambers were at best incoherent, and she too was excused for cause.

On a questionnaire and at voir dire, Magee indicated some opposition to imposition of the death penalty. It took long and tedious questioning to qualify her for the jury under Witherspoon, supra, and its progeny. At voir dire, Lewis indicated that she had no conscientious scruples against the infliction of the death penalty when the law and the testimony authorized it in proper cases. However, on her questionnaire, she indicated “If it's necessary within the findings, okay.” She agreed that there was some difference in those two answers.

Woodward asserts that striking these two jurors who were opposed to capital punishment allowed the State to get around the Witherspoon test to save two of their challenges to strike other jurors who were also opposed to capital punishment. Thus, Woodward contends that he was prejudiced by denial of a fair and impartial jury in a death penalty case.

Generally, a juror removed on a challenge for cause is one against whom a cause for challenge exists that would likely affect his competency or his impartiality at trial. Billiot v. State, 454 So.2d 445, 457 (Miss.1984). Under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the U.S. Supreme Court held that deference must be paid to the trial judge who sees and hears the juror and that the trial judge's determination that a juror is biased will not be reversed where it is supported by the record. “It is well founded that the trial judge has the discretion to excuse potential jurors for cause if the court believes the juror could not try the case impartially.” Burt v. State, 493 So.2d 1325, 1327 (Miss.1986). This Court will not lightly interfere with a finding of fact made by the trial judge in a criminal case, and it will reverse only when it is satisfied that the trial court has erred in holding a juror competent, when this Court is clearly of the opinion that he was not a competent juror. Dennis v. State, 91 Miss. 221, 44 So. 825 (1907). See also Norris v. State, 490 So.2d 839 (Miss.1986); Weaver v. State, 497 So.2d 1089, 1094 (Miss.1986) (a physical disability, such as deafness, is sufficient to support a challenge for cause).

It is this Court's opinion that the trial judge did not err in excusing the sleeping juror or the tardy juror who took numerous medications, and who gave incoherent and contradictory answers. These findings are sufficient and justifiable. This assignment is rejected.

III. DID THE TRIAL COURT ERR IN DENYING THE MOTION TO QUASH THE JURY PANEL BECAUSE OF THE PREJUDICIAL EFFECT OF THE STATE'S OPENING STATEMENT BEFORE VOIR DIRE EXAMINATION OF THE JURY?

After voir dire by the court as to the death penalty, the court stood in recess. Early on the second day of voir dire, the court told the prospective jury panel that the attorneys were always afforded an opportunity to make a brief opening statement prior to their engaging in voir dire examination. Such opening statements did not preclude opening statements on beginning their cases in chief.

After the State's voir dire examination, Woodward moved the court to quash the entire jury panel because of the district attorney's statements of what expected proof would be offered of the three crimes against this defendant. At least three or four jurors, possibly more, indicated that they had changed their position on capital punishment, as two of them phrased it, “from the evidence they had heard today.” Both the court and district attorney had admonished the venirepersons several times that the district attorney's remarks were not evidence and that the State has the burden of proof.

The appellant argues that the court departed from established procedure in allowing the State to make an alleged inflammatory opening statement prior to voir dire. The defendant asserts that the departure from standard procedure caused the jury panel to be biased, prejudiced and unfair to the appellant and, therefore, constituted reversible error. Opening statements prior to voir dire were a regular practice of this trial court, and Woodward made no objection to the practice when it was announced. Most of those questioned indicated that their opinion had not actually changed, but only that they more clearly understood the proceedings and could vote for the death penalty if warranted. The court noted and overruled the motion to quash the jury panel.

Two rules of procedure in trying criminal cases supply guidance in this area. “The prosecuting attorney may make an opening statement to the jury, confining the statement to the facts he expects to prove.” Unif.Crim.R.Cir.Ct.Prac. 5.11. “Attorneys will direct remarks to the jury panel only during voir dire, opening and closing statements.” Unif.Crim.R.Cir.Ct.Prac. 5.05. Woodward argues that the word “jury” means the jury which has been impanelled and selected to try the case and not the prospective jury. Even so, the rule does not exclude some type of opening statement during voir dire. The crucial point is that the prosecuting attorney must confine his statement to the facts he expects to prove.

Finally, “the voir dire examination is largely a matter within the sound discretion of the trial judge....” Murphy v. State, 246 So.2d 920, 922 (Miss.1971). The appellant admits that there was no departure from statutory procedure, and it is this Court's opinion that the Uniform Criminal Rules of Circuit Court Practice were not violated by the opening statement. The opening statement was confined to the facts which the prosecuting attorney expected to prove, and the prosecuting attorney's remarks were within the permissible range of voir dire examination. The trial judge did not abuse his discretion in permitting such opening statement.

This Court has admonished “the trial judge [to] conduct his own independent examination of the jurors to determine whether they can follow the testimony, the instructions, and their juror's oath and return a verdict of guilty even though such a verdict could result in the imposition of the death penalty....” Williamson v. State, 512 So.2d 868, 881 (Miss.1987). See Gray v. State, 472 So.2d 409, 421 (Miss.1985), rev'd Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). In the instant case, the trial judge did conduct his own independent examination and kept control of the voir dire examinations of the State and the defendant.

It is this Court's opinion that the trial court should be affirmed on this issue.

IV. DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS THE PHYSICAL EVIDENCE CONSISTING OF A PACK OF RELIANCE INK PENS WHICH WERE REMOVED FROM THE APPELLANT'S VEHICLE?

Woodward filed a motion to suppress all of the physical evidence, but his argument specifically addresses several blue topped fountain pens. Initially it should be noted that the defendant came by the sheriff's office around 8:00 a.m. on July 24, and at that time he had a blue topped fountain pen in his shirt pocket. Arlon Moulds, investigator for the district attorney's office, testified that he talked with Woodward on July 24, 1986 about 12:15 or 12:30 p.m., prior to any arrest. Moulds asked Woodward to sign a waiver form allowing a search of his logging truck. Woodward signed the consent to search, which was received into evidence. When the investigating officers exchanged information, they realized that there was a blue topped fountain pen at the crime scene, one in Woodward's shirt pocket, and a partial packet of pens in his truck. Realizing this fact, Moulds later asked Woodward to return to the sheriff's office, which Woodward did. Moulds stated that Woodward was arrested prior to the time he signed the waiver of rights form, which was 2:30 p.m., and that Woodward's truck, its contents and a fountain pen from his pocket were seized after the arrest. The waiver form had “Time 2:30 p.m.” written at the top. On cross-examination Moulds testified that the arrest occurred about 2:30 p.m.

Julia James, a crime scene specialist with the Mississippi Crime Laboratory, testified at the suppression hearing that about lunch time, she searched the truck pursuant to Woodward's consent to search and seized certain items from it. At that time, she saw the pack of blue topped fountain pens. After finding a similar ink pen at the crime scene, she returned to the sheriff's office, where the truck had been seized, and collected the pack of ink pens at “approximately 2:30, 2:40.” Later in the suppression hearing, Moulds testified that after the arrest he removed a similar pen from Woodward's shirt pocket at approximately 3:08 p.m. On cross, he agreed with defense counsel that the reason he arrested Woodward was “because of the pen,” which was the crucial evidence. He continued to assert that the arrest occurred at approximately 2:30. The trial court overruled the motion to suppress, stating the following: As far as the physical evidence is concerned, it is the finding of this Court beyond a reasonable doubt that the seizure of all items were performed after the execution of a valid consent form with the Defendant freely and voluntarily having waived his rights and consented thereto to the search of his truck, and that this was done without any threat, force, coercion or intimidation. That the seizure of all subsequent items were made subsequent to a lawful arrest, and that probable cause did in fact exist for any and all searches and subsequent seizures.... Woodward argues that the second search was pre-arrest, and being three hours after the first search, was not a part of the initial investigation. Woodward correctly notes that after the first consent search, he was allowed to take the truck and continue his daily work activities. He asserts that this intervening factor made any subsequent search unreasonable and illegal. The State contends that the second search was valid whether pre-arrest or post-arrest, with which this Court agrees. The trial judge made a factual finding supported by the record, and this Court will not overturn a finding of fact made by a trial judge unless clearly erroneous. West v. State, 463 So.2d 1048, 1056 (Miss.1985). Further, this Court must give effect to all reasonable presumptions in favor of the ruling of the court below.

In Mississippi, where the police officer determines that it is necessary to leave the scene of the search in order to examine the body at the hospital, a 25 to 30 minute delay is not unreasonable. In Crum v. State, 349 So.2d 1059 (Miss.1977), this Court held: The opinion of the Supreme Court of Tennessee quoted from United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 434, 94 L.Ed. 653 (1950), where it was said: “What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmuspaper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.... Reasonableness is in the first instance for the District Court to determine.” The Tennessee Court then said: We cannot say that the second search of Voss' room was unauthorized and that the evidence tendered and admitted was the result of an unlawful search. It conclusively appears from the record before us that the arresting officers, having lodged their prisoners in jail, returned at once to make a further and more thorough search of the premises for evidence connecting them with the murder of Mr. Hutchinson. The time which elapsed between the arrest, the immediate search and this second search was of such short duration that we are justified in holding that the second search was merely a continuation of the first. It cannot be considered as unreasonable in any legal sense. Id. at 1062.

Again, it is this Court's opinion that the trial court should be affirmed on this issue in his holding that the second search was authorized and reasonable, and that therefore the evidence was the result of a lawful search.

V. DID THE COURT ERR IN FAILING TO SUPPRESS THE CONFESSIONS OF THE DEFENDANT?

Where this Court is concerned in substantial part with a finding of fact, so long as the trial court applies the correct legal standards, this Court will not overturn a finding of fact made by a trial judge unless it be clearly erroneous. Neal v. State, 451 So.2d 743, 753 (Miss.1984). Further, a trial court's determination of voluntariness is considered a finding of fact that will not be reversed on appeal unless manifestly wrong, or contrary to the overwhelming weight of the evidence. Dedeaux v. State, 519 So.2d 886, 889-90 (Miss.1988).

A. THE WRITTEN CONFESSION

Woodward testified that there was no attorney present when he gave his written statement although he requested one prior to giving the statement. He further stated that he did not personally read the yellow legal pad or the typed statement which he signed. He also testified that Detective Rawls told him to sign or he and Moulds would “throw all the irons in the fire.”

On the contrary, Arlon Moulds testified that after arrest, Woodward was informed of his rights, that before giving the statement, he freely and voluntarily executed a waiver of rights, which was introduced into evidence, and that he never requested the services of a lawyer. Moulds further testified to the free and voluntary nature of the statement itself. The requisites of Agee v. State, 185 So.2d 671 (Miss.1966), were complied with, and there is no claim to the contrary as to any of the confessions. Moulds stated that he wrote Woodward's statement out on a yellow legal pad, word for word, and would have to stop him periodically to catch up. After writing the statement in long hand, he carried it into the adjoining office, without affording Woodward an opportunity to examine it. Woodward did not ratify it in any way. Mrs. Elaine Davis typed the statements from the yellow sheets of paper.

The typed confession was admitted into evidence. Woodward had an opportunity to review and did in fact read the statement, and acknowledged that it was correct, except for some misspelled words, each of which Woodward initialled at Moulds' direction and in Moulds' presence. Moulds never compared the typed statement with his notes, but threw the notes into the garbage can because he had a signed affidavit typed statement. Elaine Davis testified that she typed the statement verbatim from Moulds' notes.

Woodward moved to suppress the written confession because it was tainted by the State's failure to furnish him the original written statement as required by Unif.Crim.R.Cir.Ct.Prac. 4.06 and because the destruction of the original statement denied Woodward his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. The trial judge found as follows: This Court finds beyond a reasonable doubt that this statement was free and voluntary and was taken only after the defendant had been advised of all of his rights and after it was obvious that the Defendant understood his rights and intelligently waived his rights. This Court now specifically resolves, as a result of the evidentiary hearing, that this Defendant did not at any time request the services of an attorney, and that the oral statements made by this Defendant concerning the gun and the statement to Detective Rawls wherein the Defendant said, “I shot her” would be admissible. This Court finds that the Defendant did not ratify the written notes of Investigator Moulds but did have an opportunity to review the typed statement which the typist, Mrs. Elaine Davis, testified was typed verbatim from the handwritten notes of Investigator Moulds. It should be noted further that this Defendant even made corrections of the typographical errors which had been acknowledged by him and that the Defendant initialed the same. The case of Dickins v. State goes only to the weight and credibility of the issue. This Court rules that the written statements of the Defendant are free and voluntary, and therefore, are admissible.

Woodward relies upon the following portions of Rule 4.06: (a) The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following: (2) Copy of any recorded statement of the defendant's to any law enforcement officer; ... (6) Copy of any exculpatory material concerning defendant. The Fifth Circuit has held that there was no discovery violation as to an officer's notes, taken in the presence of witnesses, and destroyed in good faith.

Moore also asserts that his confession is inadmissible because FBI Agent Genakos was unable to produce for his examination the original notes taken at Moore's questioning. We deem this contention to be without merit. The summary made by Genakos contains the inculpatory statements allegedly made by Moore during his examination by the FBI agents and there is no doubt that under the Jencks Act, 18 U.S.C. § 3500(b), if the agents had the notes they would be required to produce them. However, Genakos' notes, taken in the presence of witnesses, were destroyed in good faith. There was no error here. Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302 [308], 7 L.Ed.2d 256 (1961). United States v. Moore, 453 F.2d 601, 603-604 (3rd Cir.1971). See United States v. Monroe, 397 F.Supp. 726, 732-3 (D.C.Cir.1975); People v. Nunez, 698 P.2d 1376, 1388 (Colo.App.1984); (rejecting a due process claim on a similar set of facts). It is this Court's opinion that the trial judge properly admitted the written confession.

B. THE VIDEOTAPED CONFESSION

Moulds testified that on July 24, 1986 at approximately 6:45 p.m. (after the written confession), Woodward freely and voluntarily gave a videotaped confession in the district attorney's office, after being read his rights from a waiver of rights form. This form was received into evidence. Woodward signed only the portion acknowledging that he knew his rights, not the portion waiving his rights. However, Moulds testified that Woodward waived his rights and began the statement. On the video tape itself, which this Court viewed, Woodward was read his rights, stated that he understood them and that he wanted to sign the waiver, and did in fact sign the form.

The trial judge made the following finding: We now turn the Court's attentions ... the videotaped statement. It is uncontradicted that this statement is free and voluntary, and this Court so rules. Prior to, at the time of the taking of this statement, and during the taking of same, it was done without any threats, coercion, intimidation or force to this Defendant. This Court specifically finds beyond a reasonable doubt that the Defendant waived his right to remain silent, and that after being administered his Miranda rights and warnings, that the Defendant acknowledged those rights and did then and there give a free and voluntary statement.

It is the further finding of this Court that there is no technical requirement that a written waiver be signed by the Defendant, and the State proved beyond a reasonable doubt, by a totality of the circumstances, and after this Court had the benefit of reviewing the videotape, that this Defendant, after being questioned by Investigator Moulds concerning his rights, that this Defendant did then and there acknowledge his rights and waived his rights and gave a statement, and then in fact, that statement was in his own words. This Court is of the opinion that this statement which is contained in that videotape is free and voluntary and finds at this time that the same would be admissible.

Woodward submits that the record does not show that he intelligently waived his rights after being advised of them and that his failure to sign the waiver clearly demonstrates, in this case, that he did not intend to waive his rights. The U.S. Supreme Court has held that an express waiver of the defendant's rights is not always required, even where the defendant has refused to sign a waiver. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Rather, the question of waiver turns on the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused. Id. at 374-75, 99 S.Ct. at 1758, 60 L.Ed.2d at 293 [quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ]. While refusal to sign a waiver may weigh against finding such a waiver, see McDonald v. Lucas, 677 F.2d 518 (5th Cir.1982); 2 W. Ringel, Searches & Seizures, Arrests & Confessions, § 28.3(b)(3) (2d Ed.1987), a failure to sign, by itself, does not weigh against such finding. There is no evidence that Woodward refused to sign the waiver. Rather, it appears that Woodward inadvertently failed to sign the form in question twice, and the officers failed to notice this.

It is this Court's opinion that the trial judge properly admitted the videotaped confession.

C. THE ORAL STATEMENT TO WOODWARD'S EMPLOYER

Moulds testified that he asked Woodward whether he would like to call anybody and he said he would like to call Mrs. Harrigill, his boss. Moulds then placed the call for Woodward because it was a long-distance, credit card call, from the secretary's office in the district attorney's office. Moulds, the sheriff and a deputy sheriff sat there listening and overheard Woodward's side of the conversation.

Susan Harrigill, owner of Harrigill Refuge Services, a trucking company, testified that she employed Woodward and owned the truck driven by Paul Woodward. On the evening of July 24, 1986, she received a telephone call, which she recounted as follows:

Someone said that there's someone here who wants to speak with you. Then Paul took the phone, and he said, “Hello.” And I said, “Paul, where are you?” He said, “Hattiesburg Jail.” I said, “What's happened?” He said, “They have charged me with capital murder.” I said, “Did you do it?” He said, “Yes, I did.” .... ... I said, “Why did you do it?” He said, “I don't know.” I said, “I didn't know you carried a gun.” He said, “Most people didn't”-either “most people” or “most folks”. She stated that no law enforcement officer requested her to ask these questions of Woodward. She further stated that it was Moulds who said, “There's somebody here who wants to speak to you.” She testified that about ten days later, Moulds called her stating that he overheard her telephone conversation with Woodward. For that reason Moulds knew to contact Harrigill to testify.

The trial judge found as follows: We shall now address the oral statement made to Mrs. Harrigill, the employer of the Defendant. This statement in the opinion of this Court does not fall within the criteria of Miranda under the following cases: McElroy v. State, Brown v. State, and McBride v. State. The phone call that was made was for the benefit of the Defendant, and this Court finds that there was no law enforcement officer on the phone with the Defendant and Mrs. Harrigill, and that the call was not done as a subterfuge to the interrogation by any law enforcement officer through Mrs. Harrigill. That this Court finds beyond a reasonable doubt that the statement of the Defendant in the form of a confession was for the benefit of the Defendant and was done by him to notify his mother and his employer concerning personal matters. The evidentiary hearing in this matter reveals that it is uncontradicted that the oral statement of the Defendant to Mrs. Harrigill is free and voluntary, and that there was no threats, force, coercion or intimidation of the Defendant. Mrs. Harrigill testified that there was no collusion between herself and any law enforcement official, and that she asked the Defendant questions out of her own curiosity, and that the Defendant spoke to her about his actions. There is absolutely no doubt that this oral statement is free and voluntary, and based thereon, it is the ruling of this Court that the same would be admissible.

Woodward submits that the telephone conversation constituted a custodial interrogation because the officers placed the call and that it should have been suppressed because of a failure to provide Woodward with the Miranda warnings.

In Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458, reh'g. denied, 483 U.S. 1034, 107 S.Ct. 3278, 97 L.Ed.2d 782 (1987), the U.S. Supreme Court held that the defendant, despite indicating that he did not wish to be questioned further without a lawyer present, was not subjected to the functional equivalent of police interrogation by permitting his wife to see and talk with him. In both Mauro and the instant case, no officers questioned the defendant, there is no evidence that the permission for the conversation was a psychological ploy, there is no evidence that the officers arranged the conversation for the purpose of eliciting incriminating statements; the presence of the police officer was known by the defendant; and merely allowing such conversations would not cause the defendant to feel that he was being coerced to incriminate himself. Further, the mere possibility of incrimination does not mean that an interrogation occurred. Mauro is entirely consistent with prior Mississippi case law. Dycus v. State, 440 So.2d 246, 256 (Miss.1983); Brown v. State, 293 So.2d 425, 427-28 (Miss.1974).

It is this Court's opinion that the trial judge properly admitted the oral statement to Woodward's employer. The trial judge is affirmed on admission of all confessions.

VI. SHOULD THE APPELLANT HAVE BEEN GRANTED A CIRCUMSTANTIAL EVIDENCE INSTRUCTION?

The court refused to give a circumstantial evidence instruction. For the instruction to be required, the prosecution must be without a confession and wholly without eye witnesses to the gravamen of the offense charged. Kniep v. State, 525 So.2d 385 (Miss.1988). The same is true where there is an admission by the defendant on a significant element of the offense. Mack v. State, 481 So.2d 793, 795 (Miss.1985).

The details of the crimes were described in both the written and the videotaped confessions. The mere fact that Woodward asserts that the confession indicates the voluntary nature of the sexual intercourse does not require a circumstantial evidence instruction even if the assertion is true, because the sexual intercourse is proved by the confession.

VII. DID THE STATE FAIL TO PROVE THE UNDERLYING FELONY OF RAPE?

At the conclusion of the State's case, Woodward moved the court for a directed verdict of not guilty of capital murder for failure of the State to prove the necessary elements of the underlying felony of rape. The court overruled the motion. Woodward asserts that the State failed to prove that the sexual intercourse was by force rather than voluntary.

The victim's husband testified that he had last had sexual relations with his wife two days prior to her death. Dr. Robert Cooke testified that he found no tears on her clothing and no lacerations or tears in the vagina area. He noted that the lack of lacerations does not prove that there was no legal rape because different people react differently when they are fearful of their life. Judy James, a crime lab expert, testified similarly. On appeal, Woodward argues that the circumstantial evidence actually indicates that the victim was killed during the course of robbery or grand larceny because James testified that she found two rings on the ground near the victim and a white beaded necklace in her left hand.

Larry Turner, a forensic serologist, testified that Woodward is a secretor with type A blood and that the seminal fluids present in the victim's vagina were from a person who is a secretor with type A blood. The testimony from Woodward's confession certainly constitutes sufficient proof that sexual intercourse between Woodward and the victim occurred. However, the vaginal sexual intercourse occurred after the oral intercourse and, more importantly, was accompanied by threats of violence while Woodward had the pistol in his hand.

There may be sufficient proof of rape despite a complete absence of bruises or lacerations on the victim's body. Stewart v. State, 466 So.2d 906, 908 (Miss.1985). Stewart also states the following: The well-settled rule is that in a prosecution for rape, physical force on the part of the assailant or physical resistance on the part of the victim is not necessary if the proof shows beyond a reasonable doubt that the victim surrendered because of fear arising out of a reasonable apprehension of great bodily harm. Clemons v. State, 460 So.2d 835 (Miss.1984); Davis v. State, 406 So.2d 795 (Miss.1981); Fields v. State, 293 So.2d 430 (Miss.1974).... Id. at 909. It is this Court's opinion that the evidence presented was sufficient to convince a rational factfinder of Woodward's guilt of the crime of rape beyond a reasonable doubt. Id. * * * There remains one multicount assignment which addresses principally the guilt phase, but which contains one incident during the sentence phase.

VIII. DID CUMULATIVE ERRORS DURING THE COURSE OF THE TRIAL DENY THE APPELLANT A FAIR TRIAL?

It is true that in capital cases, although no error, standing alone, requires reversal, the aggregate effect of various errors may create such an atmosphere of bias, passion and prejudice that they effectively deny the defendant a fundamentally fair trial. Stringer v. State, 500 So.2d 928, 939 (Miss.1986); Williams v. State, 445 So.2d 798, 814 (Miss.1984). This Court must determine whether any prosecutorial misconduct, viewed in light of the entire trial, denied the defendant a fundamentally fair trial. Lockett v. State, 517 So.2d 1317, 1333 (Miss.1987). The actions asserted by Woodward to be error for their cumulative effects are now considered individually.

A. THE STARE DOWN The first of these alleged errors concerns the behavior of the victim's father towards the defendant. At the beginning of the trial, defense counsel for Woodward had placed into the record a notation that the victim's father was engaging in disruptive behavior, including but not limited to a shoving match at the back of the courtroom and staring intently at the defendant. Deputy Joe Lowery testified that the father also walked into the court room and said “that is the guy that killed my daughter.” Woodward claims that this put the State and the court on notice at the beginning of the trial that there were problems with the conduct of the victim's father toward him.

Defense counsel also moved for a mistrial because during the majority of the victim's father's testimony he stared at the defendant. On leaving the witness stand, the victim's father stopped in front of the defendant and stared him down for a few brief seconds before the district attorney moved him past the defendant. This behavior was also noted in the defendant's motion for a new trial. Woodward relies upon Fuselier v. State, 468 So.2d 45 (Miss.1985), wherein the victim's daughter conspicuously placed herself within the rail of the courtroom facing the jury box after her testimony. She also conferred on several occasions with the district attorney. In finding the daughter's behavior objectionable, this Court noted the following rule:

Only officers of the court, attorneys and litigants or one representative of a litigant in the case on trial will be permitted within the rail of the courtroom, unless authorized by court. Unif.Crim.R.Cir.Ct.Prac. 5.01.

Of course, the action here falls far short of that in Fuselier. The testimony of the victim's father here was relevant, had probative value, and was admissible no matter how emotional his testimony became. Evans v. State, 422 So.2d 737, 743 (Miss.1982), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986). See Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 2535 n. 10, 96 L.Ed.2d 440, 451 n. 10, reh'g. denied, 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987). Furthermore, the stare at the counsel table was very brief, and the victim's father did not remain within the rail of the courtroom. The trial court was in control of the proceedings at all times. Therefore, this portion of the assignment is without merit.

B. THE RABBIT TRAIL

On cross-examination and redirect examination of Woodward's employer, Mrs. Harrigill, she was questioned about problems relating to the high range gears on Woodward's truck and on the number of rounds made by Woodward on July 23. The district attorney finally warned against getting off on a rabbit trial in closing argument. Defense counsel moved for a mistrial based on the remark because it was made in the presence of the jury. The court overruled the motion for mistrial but instructed the jury to disregard any extraneous comments of the district attorney or any attorney which would not be within the framework of the trial of this case. It is well established in Mississippi law “that jurors are presumed to heed the trial judge's directive to disregard a question or statement or even an entire testimony.” White v. State, 520 So.2d 497, 500 (Miss.1988). Therefore, we now find that the warning by the trial judge was sufficient to cure any possible prejudice to the defendant.

C. AND D. THROWING THE PISTOL AND LOADING THE PISTOL

The record reflects that during the district attorney's closing argument, he picked up the defendant's pistol and threw it in the air, demonstrating the defendant's action when he was arrested. Defense counsel objected and argued that the demonstration was highly improper, prejudicial and had no place in a court of law. The court overruled the motion for mistrial and cautioned the district attorney. During the rebuttal closing argument, the district attorney loaded the empty shell that killed Rhonda Crane into the defendant's pistol. Defense counsel objected and moved for a mistrial. The court overruled this motion. On the motion for new trial, defense counsel stated that the district attorney had thrown the pistol in the air for 10 to 12 feet landing in front of the jury.

Woodward admitted in his confession that he had thrown the pistol out of the truck. Rickey Rawls testified that Woodward said he threw the pistol out about half way across a bridge and later showed authorities where he had thrown the pistol for its recovery. The demonstration by the district attorney, although theatrical, was questionable conduct for a court of law. In Fuselier v. State, 468 So.2d 45, 53 (Miss.1985), this Court expressed the view that this Court strives for a verdict based on reason and rules rather than emotion. However, the occurrence here was properly handled by the trial court and constituted no reversible error. Therefore, this portion of the assignment must also fail.

E. THE IMPROPER ARGUMENT

In the district attorney's rebuttal closing argument during the sentencing phase, he stated, “You know, as bad as I hate to say it, what about prisoner's rights? What about those people in Parchman who are in there for drugs?” Defense counsel objected and moved for a mistrial and for an instruction to the jury to disregard the remark. The court sustained the objection and instructed the jury to disregard but overruled the motion for a mistrial. Woodward's reliance on Hance v. Zant, 696 F.2d 940 (11th Cir.1983), is misplaced because Hance has been largely overruled. Davis v. Kemp, 829 F.2d 1522, 1526 (11th Cir.1987); Brooks v. Kemp, 762 F.2d 1383, 1398-99 (11th Cir.1985) (en banc), vacated on other grounds, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986).

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court held that the future dangerousness of a defendant is a proper consideration in imposing death. See Tucker, 762 F.2d at 1507; Bowen v. Kemp, 769 F.2d 672, 679 (11th Cir.1985). In the above quoted excerpt, the prosecutor dramatically illustrated this future dangerousness. In Brooks, the prosecutor brought this very matter home to the jury by asking, “Who's daughter will be killed next?” We found such an argument to be constitutional, concluding that: “A legitimate future dangerousness argument is not rendered improper merely because the prosecutor refers to possible victims.” Brooks, 762 F.2d at 1412. The argument made in this case is no more emotion laden than the imagery created by the prosecutor in Brooks. Davis, 829 F.2d at 1528-29. Included in the prosecutor's argument in Brooks was the suggestion that the defendant may kill a guard or fellow prisoner. 762 F.2d at 1411 & n. 46. See also, Evans v. Thigpen, 809 F.2d 239, 243 (5th Cir.1987). The prosecutor's arguments were “directly relevant to the consideration of whether Brooks would remain a threat to society.” 762 F.2d at 1411. On the same day Brooks was decided, the eleventh circuit also specifically held in another case that an argument about the safety of prisoners and guards if the defendant were to receive a life sentence was an appropriate means of pointing out the possibility of the defendant's future dangerousness and did not call for a speculative inquiry into prison conditions. Tucker v. Kemp, 762 F.2d 1480, 1486 (11th Cir.1985), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (11th Cir.1986), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987).

In light of these recent decisions, we conclude that this final portion of the assignment is without merit. We further conclude that the cumulative effect of these alleged errors do not merit reversal of either guilt or sentence phase of this case.

IX.

Following the guilt/innocence phase of this consolidation trial of Paul Woodward for the separate crimes of (1) capital murder, (2) kidnapping, and (3) sexual battery under a multi-count indictment, the jury returned three separate verdicts of guilty to all charges. The trial court deferred sentencing on kidnapping and sexual battery until after the bifurcated hearing on the capital murder charge.

At the sentencing trial, the State introduced all evidence from the guilt phase, with the reservations by the defendant of all former objections raised by him. The defendant presented evidence of mitigating circumstances. Prior to trial, the defendant had been examined at Mississippi State Hospital and found to be competent to stand trial. Subsequently, the defendant gave notice to the State that he would offer a defense of insanity at the time of the alleged crime and moved the court to afford financial assistance for independent psychological testing and court attendance of the psychologist. The court ordered the same. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53, (1985). After the private testing, the defendant withdrew his insanity defense and gave notice to the State of his intent to introduce expert testimony related to a mental disease, defect or other mental condition. Such mitigating proof was offered by the defendant at the sentencing phase.

After conclusion of the sentencing phase proof, the court submitted the following aggravating circumstances to the jury for their consideration: (1) that the capital murder of Rhonda Crane was committed while Paul Woodward was engaged in the commission of rape; (2) that the capital murder of Rhonda Crane was especially heinous, atrocious or cruel; and (3) that the capital murder offense was committed for the purpose of avoiding or preventing a lawful arrest, or effecting an escape from custody. In addition, the State submitted an instruction of a definition of “especially heinous, atrocious, and cruel.” Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Following its deliberation, the jury returned the following verdict:

We the jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of capital murder: 1. That the defendant actually killed Rhonda Crane; 2. That the defendant attempted to kill Rhonda Crane; 3. That the defendant intended that the killing of Rhonda Crane take place; 4. That the defendant contemplated that lethal force would be employed during the commission of the crime of felonious rape.

Additionally, the jury found that: (1) all three above aggravating circumstances existed; (2) the aggravating circumstances were sufficient to impose the death penalty; (3) there are insufficient mitigating circumstances to outweigh the aggravating circumstance(s); and unanimously found that the defendant should suffer death for capital murder.

The court entered three separate sentences, sentencing the defendant to thirty years in the Mississippi Department of Corrections for the crime of kidnapping and to thirty years in the Mississippi Department of Corrections for the crime of sexual battery, and that the sentences for these two crimes shall run consecutively with each other. After the jury verdict of death on capital murder, the court entered the order reflecting that verdict. The court here on review affirms the guilt and sentencing phases of this trial.

X.

Miss.Code Ann. § 99-19-105(3)(c) (1972), as amended, directs this Court to consider in death penalty cases, in addition to the assigned errors, the punishment imposed, as follows: (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; and (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Having made a thorough review of this record, this Court holds that as to the above 3(a), the death penalty was not the result of passion, prejudice, or any other arbitrary factor; that as to 3(b) the jury's finding of statutory aggravating circumstances is supported in the record; and that as to 3(c) the sentence of death is proportionate to the penalty imposed in similar cases, considering the defendant and the crime. (See Appendix). The Court, therefore, affirms the penalty of death.

CONVICTION AND SENTENCE TO THIRTY (30) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR THE CRIME OF KIDNAPPING AFFIRMED, AND CONVICTION AND SENTENCE TO THIRTY (30) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR THE CRIME OF SEXUAL BATTERY AFFIRMED, SAID SENTENCES TO RUN CONSECUTIVELY WITH EACH OTHER. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH AFFIRMED. NOVEMBER 23, 1988, SET AS DATE FOR EXECUTION OF SENTENCE IN THE MANNER PROVIDED BY LAW.

ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and SULLIVAN, ANDERSON, GRIFFIN and ZUCCARO, JJ., concur. ROBERTSON, J., concurs by separate written opinion.

Woodward v. State, 635 So.2d 805 (Miss. 1993). (PCR)

After affirmance of conviction of capital murder, kidnapping, and sexual battery, 533 So.2d 418, defendant sought postconviction relief. The Supreme Court, Prather, P.J., held that: (1) counsel's admission during guilt phase that defendant was guilty of simple murder, rather than capital murder, did not constitute ineffective assistance of counsel; (2) counsel's failure to offer all evidence they had in mitigation during penalty phase, combined with counsel's remarks that he could not ask jury to spare defendant's life, constituted ineffective assistance of counsel; and (3) instruction on aggravating factor of capital murder being especially heinous, atrocious, or cruel mandated remand for new sentencing hearing. Death sentence vacated and remanded for new sentencing hearing. Smith, J., concurred in part, dissented in part, and filed opinion in which Dan M. Lee, P.J., and James L. Roberts, Jr., J., joined.

PRATHER, Presiding Justice, for the Court: PROCEDURAL HISTORY Paul Everett Woodward was found guilty of capital murder and sentenced to death by the jury on April 29, 1987. On direct appeal, this Court affirmed Woodward's conviction. Woodward v. State, 533 So.2d 418 (Miss.1988). Woodward's Petition for Writ of Certiorari to the United States Supreme Court was denied on April 17, 1989. Woodward v. Mississippi, 490 U.S. 1028, 109 S.Ct. 1767, 104 L.Ed.2d 202 (1989). On September 26, 1989, Woodward filed in this Court his Application for Leave to File Motion to Vacate Judgment and Death Sentence. On November 20, 1990, Woodward filed an Application for Leave to File Amendment and Supplement to Motion to Vacate Judgment and Death Sentence, raising an additional issue based on the United States Supreme Court decisions in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). The Court accepted this Supplemental Application on December 5, 1990. Woodward raises eleven issues for consideration by the Court.

Because the sentence of death must be reversed under the Clemons decision, this Court discusses only the issue of ineffective assistance of counsel and the issues affecting the guilt portion of the trial.

ANALYSIS

I. Whether the Admission of a Sample of Woodward's Blood Which Was Obtained Without a Warrant Was Error for Which the Conviction Should Be Set Aside. Woodward did not raise this issue on direct appeal. Normally, Miss.Code Ann. § 99-39-21(1) (Supp.1993) directs that an issue not raised on direct appeal be deemed waived, unless the petitioner can meet his burden to show cause and actual prejudice. “Cause” is “defined and limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.” Miss.Code Ann. § 99-39-21(4) (Supp.1993). “Actual prejudice” is “defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence. Miss.Code Ann. § 99-39-21(5) (Supp.1993).

Woodward cannot meet the test of cause. Here, the basis of the Fourth Amendment objection to the admission of illegally obtained evidence is certainly by now deeply rooted and well known. This Court has a long tradition of reversing convictions based on the admission of illegally obtained evidence. See Lewis v. State, 198 Miss. 767, 23 So.2d 401 (1945). As for actual prejudice, under the weight of the evidence against him, including written and videotaped confessions, Woodward had practically no chance of escaping conviction even without this evidence. This issue is barred by the waiver of Miss.Code Ann. § 99-39-21(1) (Supp.1993).

II. Whether Defense Counsel's Performance at Trial and on Direct Appeal was Constitutionally Ineffective.

This is the one issue which the State admits is not procedurally barred. Indeed, this Court has noted that a defendant is entitled to one opportunity to raise this issue. Perkins v. State, 487 So.2d 791, 792-93 (Miss.1986). Where the same counsel represents the defendant at trial and on direct appeal, the claim is procedurally viable on application for post-conviction relief. Id. However, in order to receive a hearing on his claim of ineffective assistance, the post-conviction applicant to this Court must demonstrate with specificity and detail the elements of the claim. Id. at 793.

The law on ineffective assistance emanates from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires the defendant to demonstrate that his counsel was deficient and that the deficient performance prejudiced his defense. “The performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Once a deficient performance is shown, a “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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In the present case, Woodward alleges numerous errors of counsel at both the guilt phase and the penalty phase of his trial.

A. Guilt Phase

Woodward alleges the following errors at the guilt phase of the trial:
1. His attorneys sat with their backs to him during the course of the trial because of their fear of violence from the audience, which resulted in giving the jury the impression that they were distancing themselves from him.
2. The attorneys made no opening statement and therefore failed to rebut victim character evidence injected by the State.
3. The attorneys failed to cross-examine ten (10) State witnesses, giving the impression that they had little faith in Woodward's case.
4. One attorney complimented the district attorney.
5. One attorney assisted a State witness in identifying Woodward.
6. The attorneys waived voir dire of some jurors.
7. The attorneys failed to use all of their peremptory challenges to the venire.
8. One attorney admitted that Woodward was guilty of kidnapping and murder, which caused the District Attorney to request a mistrial. Subsequently, the other attorney referred back to this candor during his own closing argument.
9. One attorney's closing argument negated a defense of consent.

It will suffice to say most of these assertions are either not borne out by the record or are inconsistent with a claim of ineffective assistance when placed in the context of circumstances under which they occurred. We choose to discuss only Woodward's allegation that his attorney admitted his guilt of the crime. In fact, the attorney admitted that Woodward was guilty of simple murder, not capital murder, and submitted a lesser-included offense instruction in accordance with the argument. The argument was that Woodward was guilty only of simple murder since his confession indicated that he shot the victim after the completion of the rape and while he was leaving the scene and that; therefore, the murder did not occur during the commission of the felony.

This Court has faced similar allegations in other cases, and found that the attorney's strategic decision to admit to a lesser crime than that charged in the indictment did not amount to deficient performance. In a very similar case to the one at bar, Wiley v. State, 517 So.2d 1373 (Miss.1987), cert denied 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 610 (1988), an attorney admitted in his opening statement that he thought the jury would find that his client shot the victim. The attorney's theory was that the shooting was not capital murder as charged in the indictment. Although this Court was concerned with this strategy and stressed the point that an attorney is not to stipulate to facts amounting to a guilty plea, this Court, nevertheless found that the attorney had made a strategic decision which did not amount to deficient performance. Id. at 1382.

Even more similar is Faraga v. State, 514 So.2d 295 (Miss.1987), cert. denied 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 894 (1988), where the defense counsel admitted the defendant had committed simple murder in a capital murder case and submitted an instruction in accordance with his admission. This Court in Faraga was also concerned about the attorney's admitting too much, but found the decision tactical and made in order to gain the jury's confidence and to attempt to mitigate the sentence. This Court found the argument “the best argument he could make given the circumstances under which he found his client.” 514 So.2d at 308.

In the instant case, these attorneys similarly could not do much at the guilt phase of this trial. The evidence of guilt was overwhelming. In addition to separate written and videotaped confessions, which were properly admitted, the State presented a mountain of evidence. A housewife near the scene of the crime saw a white logging truck stopped in front of her house and a white man forcing a blonde woman in a yellow dress into his truck. After the truck drove off, the housewife found the victim's car on the highway, with the door open and the motor still running. A motorist reported to law enforcement officers that he saw a white logging truck moving away from a car with an open door on the highway. Woodward unquestionably was in the area that day, driving his white logging truck. His white logging truck was the only white logging truck at the logging mill. Law enforcement found a fountain pen at the crime scene matching pens found in Woodward's truck. Tests of Woodward's blood showed that he could not be excluded as the perpetrator. On the evidence presented, it is impossible to imagine a Mississippi jury that would not have convicted Woodward. He was “hopelessly guilty.” Caldwell v. State, 481 So.2d 850 (Miss.1985) (remanded on other grounds, Caldwell v. Mississippi, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987).

Assuming for the sake of argument that Woodward's counsel was deficient in the guilt phase, he, in order to prevail on an ineffective assistance of counsel claim, must also show that the result of the guilt phase would have been different. The proof in the case does not present reasonable probability sufficient to “undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, Woodward cannot show that he fulfills the prejudice prong of the Strickland test as to the guilt phase.

B. Penalty Phase

Errors Woodward alleges his attorney committed at the penalty phase include the following:
1. Defense counsel requested only half of the amount of time for closing argument that the State did.
2. Both counsel, during their closing arguments, stated that defending the case was a burden.
3. One of the attorneys stated on closing argument that he could not ask the jury to spare the defendant's life on the facts of the case.
4. Counsel had no family or friends to testify on mitigating evidence.
5. Counsel gave the prosecution confidential tapes of interviews between Woodward and his expert psychological witness.
6. Counsel did not interview the State's surprise rebuttal expert psychological witness prior to his testimony.
7. Counsel did not speak with their own expert witness until five (5) minutes before he testified.

The defense's proof in the sentencing phase contained almost no facts in mitigation upon which the jury could act to spare Woodward's life. As mentioned above, counsels' trial strategy was to admit to the crime and then hope to appeal to the jury for leniency in sentencing. Woodward's attorneys presented no defense in the guilt phase and in the sentencing phase. They made little effort to present mitigating circumstances to the jury.

On closing argument during the sentencing phase, one of Woodward's attorneys made the following statement:

I don't condone what he's done. That's known as redeeming love. You-it's a commandment that is the hardest thing in the world to do. You can't-it's just it's something that you got to do, if you're going to believe it, but it's hard to love somebody who's done something wrong to you. It's easy for us to go out and love people we like, or who like us-there's no merit in that. But, when you've got to love somebody that's trespassed against you, somebody that's hurt you bad, somebody that's done something difficult to you, that's where the merit is. And that's what's called redeeming love. In this case, I realize that will probably never happen. I don't know. You say, how could you ask me to spare Paul Woodward's life? How could any lawyer come and ask you to do it? I can't ask you to do it on the facts. No, I can't. They're terrible. I'm going to be honest with you. I can't ask you to do it on the facts. There's only one way that I can ask you to spare his life, and that's on redeeming love. That's the only way. I know whatever your decision will be, it will be fair and just. Thank you. (Emphasis added).

The counsel's statement above to the jury severely prejudiced any chance Woodward had to receive a life sentence from this jury. The Court's instructions to the jury, which they are presumed to follow, told them that they could consider the eight statutory mitigating circumstances FN1 which included:

FN1. (1) The Defendant has no significant history of prior criminal activity. (2) The offense was committed while the Defendant was under the influence of extreme mental or emotional disturbance. (3) The victim was a participant in the Defendant's conduct or consented to the act. (4) The Defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor. (5) That the Defendant acted under extreme duress or under the substantial domination of another person. (6) The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as substantially impaired. (7) The age of the Defendant at the time of his crime. (8) Any other matter, any other aspect of the Defendant's character or record, and any other circumstance of the offense brought before you during the trial of this cause which you, the jury, deem to be mitigating on behalf of the Defendant. See Miss.Code Ann. § 99-19-101(6) (Supp.1993). [A]ny other matter, any other aspect of the Defendant's character or record, and any other circumstances of the offense brought before you during the trial of this cause which you, the jury, deem to be mitigating on behalf of the Defendant.

Redeeming love is not one of the eight factors which the jury could have considered under the court's instructions and therefore, defense's counsel's argument to the jury told them that they could not spare Woodward's life.

Defense counsel had to argue redeeming love because he and his co-counsel failed to present much of a case in mitigation. Their expert witness, Dr. Thurman, was also the only witness the defense called during the entire case. Dr. Thurman had interviewed Woodward on several occasions and administered several different psychological tests to Woodward. In his opinion, Woodward was able to distinguish between right and wrong at the time of the crime. However, the critical portion of Dr. Thurman's testimony was that Woodward did suffer from severe mental disturbance at the time of the crime, in the form of a major depressive disorder with psychotic features. At trial, Woodward's attorney allowed Dr. Thurman to testify only to the results of his testing and not to the detailed history brought out during the interviews with Woodward. This is stated in Dr. Thurman's affidavit and is apparent from the direct examination.

By not realizing that they could offer Dr. Thurman's testimony about the Woodward's mental illness without opening the door to unlimited character evidence, Woodward's trial counsel were ineffective. Having made a tactical decision to rely solely on mental illness as a mitigating factor, counsels' failure to offer all of the evidence they had was inexcusable. In conjunction with Jones' remarks on closing argument, this error becomes even more prejudicial. Failing to make the most of the available evidence in mitigation resulted in the death sentence according to the affidavits of the jurors submitted with Woodward's application. The ineffective counsel issue provides an independent reason for reversal of the death penalty and remand for a new trial on sentencing.

III. Whether Woodward's Confession Was Obtained in Violation of His Right Against Self-Incrimination, Because the Miranda Warnings Given to Him Placed the Burden of Obtaining Counsel on Him.

Woodward claims that the following statement on the waiver form he signed before giving a confession prejudiced him:

“7. A Lawyer will also be provided for you now, if you wish, whom you may call from the list of lawyers furnished.” This statement followed these prior statements: “4. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning,” “5. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish,” and “6. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.”

No reasonable person would believe Woodward's argument after reading this entire document. It clearly advises the defendant that he can refuse to answer questions without a lawyer present and that “one will be appointed for you before any questioning, if you wish.” Woodward did not raise this issue on direct appeal, and therefore the waiver provisions § 99-39-21(1) (Supp.1993) of the PCR Act apply as discussed in issue I.

IV. Whether the Videotaped Confession Should Not Have Been Admitted Because of the State's Failure to Comply with the Agee Rule.

Woodward complains that the requirement of Agee v. State, 185 So.2d 671, 673 (Miss.1966), that all of the officers present at the confession be called to show that it was made voluntarily, was not met. Again, Woodward did not raise this issue on direct appeal, nor has he shown here that he can meet the definition of cause and actual prejudice in the Act as discussed above. Woodward does not suggest to this Court any type of prejudice which could have even possibly resulted from the failure to call all of the officers present. This issue is barred by the waiver provision of Miss.Code Ann. § 99-39-21 (Supp.1993).

V. Whether the Especially Heinous, Atrocious or Cruel Jury Instruction Given to Woodward's Jury Requires a New Trial?

In his supplemental application filed November 20, 1990, Woodward argues that the especially heinous, atrocious or cruel jury instruction given in his case requires a new sentencing hearing under the U.S. Supreme Court's decisions in Clemons and Shell. This issue is procedurally viable, despite the fact that Woodward did not object to the instruction at trial or on direct appeal. Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Wilcher v. State, 635 So.2d 789 (Miss.1993). See also, Wilcher v. Hargett, 978 F.2d 872 (5th Cir.1992); Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992); Irving v. State, 618 So.2d 58 (Miss.1992); Gilliard v. State, 614 So.2d 370 (Miss.1992).

Woodward's sentencing jury did indeed receive an instruction on the same especially heinous, atrocious or cruel aggravating circumstance at issue in Clemons, with the same “definitional” instruction the United States Supreme Court found constitutionally insufficient in Shell. Woodward's instruction read: The Court instructs the jury that in considering whether the capital offense was especially heinous, atrocious or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means assigned [sic] to inflict a high degree of pain with indifference to or even enjoyment of the suffering of others.

This Court has, in Clemons and in all of the cases since Clemons, unequivocally stated that it did not have the authority to re-weigh aggravating FN2 and mitigating circumstances under Miss.Code Ann. § 99-19-101 (Supp.1993), finding that only the jury could make that determination under Mississippi's statutory scheme. Clemons v. State, 593 So.2d 1004 (Miss.1992). See also, Irving v. State, 618 So.2d 58 (Miss.1992); Gilliard v. State, 614 So.2d 370 (Miss.1992); Pinkney v. State, 602 So.2d 1177 (Miss.1992); Jones v. State, 602 So.2d 1170 (Miss.1992); Shell v. State, 595 So.2d 1323 (Miss.1992). Further, as this Court held in Wilcher v. State, 635 So.2d 789 (Miss.1993), this Court cannot either reweigh or apply harmless-error analysis to this issue as a matter of state statutory law.

FN2. Under Miss.Code Ann. § 99-19-101(5) (Supp.1993) the trial court submitted three aggravating factors to the jury for its consideration: (1) That the Capital Murder of Rhonda Crane was committed while Paul Woodward was engaged in the commission of rape. (2) That the Capital Murder of Rhonda Crane was especially heinous, atrocious or cruel. (3) That the capital offense was committed for the purpose of avoiding or preventing a lawful arrest, or effecting an escape from custody.

This section, 99-19-101(5)(d), provides the submission of “[t]he capital offense was committed while the defendant was engaged, --- in commission of --- a rape ...,” and Subsection (5)(e) permits “the capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.” The third aggravation factor was declared unconstitutionally vague in Clemons. This Court reiterates its holding that the reweighing of these factors is for a jury under our statute. In accordance with the foregoing precedent, this Court vacates the judgment of death against Woodward and remands to the Circuit Court of Perry County for a new sentencing hearing.

DEATH SENTENCE VACATED AND REMANDED TO THE CIRCUIT COURT OF PERRY COUNTY FOR A NEW SENTENCING HEARING.

HAWKINS, C.J., and SULLIVAN and BANKS, JJ., concur. SMITH, J., concurs in part, dissents in part with separate written opinion joined by DAN M. LEE, P.J. and JAMES L. ROBERTS, Sr., J. PITTMAN and McRAE, JJ., not participating.

SMITH, Justice, concurring in part, dissenting in part:

I concur in the affirmance of the guilt phase of Woodward's trial. Woodward fits into the category of “hopelessly guilty.” Caldwell v. State, 481 So.2d 850 (Miss 1985), rev'd on other grounds, Caldwell v. Mississippi, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987). While I agree that Woodward should be granted a new trial on sentencing, I would do so based solely on a finding that he was not afforded effective assistance of counsel during the penalty phase of his capital murder trial. I dissent from the majority's opinion to the extent that it relies on any other basis for reversal.

Choosing to rely on a single witness or in limiting the focus of the mitigation to the issue of acting under extreme mental disturbance or illness was not ineffective per se. Indeed, the defense cannot be faulted for their trial strategy. The attorneys selected the only logical defense available. They chose to admit to simple murder, then appeal to the jury for leniency presenting mitigating circumstances showing mental illness. It was in the failure to thoroughly prepare or carry out their chosen strategy that counsel failed to provide effective assistance of counsel. Counsel did not confer with their only witness until minutes before he was to testify. They incorrectly instructed him and unnecessarily limited his testimony apparently based on a misunderstanding of evidentiary rules. They would not have opened the door to unlimited character evidence. They provided no character evidence to supplement this testimony. They simply did not do their homework.

When given the opportunity by the court to interview the State's rebuttal witness, Dr. Stanley, counsel chose not to, without justification or reason. This witness delivered damaging testimony which defense counsel was not prepared to counter. When looking at the decisions made by counsel in the context of review of a claim of ineffective assistance of counsel, “a common thread of the fabric of the reviewing courts' deference to tactical considerations is thorough investigation.” State v. Tokman, 564 So.2d 1339, 1343 (Miss.1990) The decision not to interview witnesses, particularly your own, cannot be considered as an effective strategic choice.

When counsel makes choices of which witnesses to use or not use, those choices must be made based on counsel's proper investigation. Counsel's minimum duty is to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case. Tokman, 564 So.2d at 1342; Ferguson v. State, 507 So.2d 94, 96 (Miss.1987).

While there may be no constitutional mandate that any mitigating character evidence be presented during the sentencing phase of a capital murder case, this judgment call should be based on some real notion that this testimony will not have a positive effect. See Tokman, 564 So.2d at 1343. In Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985), this Court set out some possible reasons for not calling witnesses: “their testimony as a whole may be more harmful than helpful, their testimony may be cumulative, the witnesses may be unwilling or uncooperative; witnesses may be beyond the jurisdiction of the court or it may be beyond the financial ability of the defendant to provide for the witnesses' appearance.” Present and available to testify at Woodward's trial, at a minimum, was the defendant's mother. There was no reason not to call her or other family members present at the trial. The failure to call any witness who could humanize the defendant cannot be justified as an effective strategy. As this Court said in Leatherwood, 473 So.2d at 970:

In view of the importance of mitigating evidence in the sentencing phase it is difficult to understand why favorable, willing witnesses who could be discovered by questioning the defendant would not be called. It if were within the financial ability of the defendant to arrange for the appearance of a representative group of them, this would have a strong bearing on whether trial counsel provided effective assistance.

Counsel's failure to prepare for and carry out the chosen defense and to provide any character evidence justifies this case being reversed and remanded for a new sentencing trial.

In looking at the jury instruction on heinous, atrocious or cruel aggravating circumstance, I have already expressed my view that this Court's decision not to apply harmless error analysis is not mandated by state statutory law and should be applied in appropriate cases. I cannot help but note that in the case sub judice defense counsel objected to any instruction which would assist the jury in understanding this aggravating circumstance. I adopt and reaffirm my argument found in dissent to Wilcher v. State, 635 So.2d 789 (Miss.1993) and other cases subsequent thereto.

Woodward v. State, 726 So.2d 524 (Miss. 1997). (Direct Appeal After Remand)

Defendant was convicted by the Circuit Court, Hinds County, of capital murder, kidnapping, and sexual battery. Defendant appealed. The Supreme Court, 533 So.2d 418, affirmed. Defendant moved for postconviction relief. The Circuit Court denied motion and defendant appealed. The Supreme Court, 635 So.2d 805, vacated death sentence and remanded for new sentencing hearing. On remand the Circuit Court again imposed death sentence. Appeal was taken. The Supreme Court, Prather, P.J., held that: (1) defendant was not entitled to be examined at state expense by psychiatrist of his choice; (2) prosecution provided race-neutral reasons for peremptory challenges to black jurors; (3) trial court had discretion to admit two photographs of body of victim; (4) mistrial was not required after prosecutor left projector showing photographs on after testimony regarding photographs was concluded; (5) trial court adequately instructed jury on “heinous, atrocious and cruel” aggravator; (6) evidentiary basis existed for instruction on “avoiding lawful arrest” as aggravating factor for murder; and (7) prosecutor did not engage in misconduct by paying excessive witness fees to state's witnesses. Affirmed. Sullivan, P.J., concurred in result only.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION

¶ 1. This capital murder case arises from the July 23, 1986, rape and murder of twenty-four-year-old Rhonda Holliman Crane (a volunteer, court-appointed, special advocate for children in the Jackson County Youth Court). Crane was traveling alone on Highway 29 in Perry County to meet her parents, who were camping at Flynt Creek Water Park. The appellant, Paul Everette Woodward, who was driving a logging truck, forced her vehicle to stop. He ordered her into his truck at gunpoint, and drove her to a secluded spot. He took her into the woods, raped her, and shot her in the back of the head, killing her instantly. Crane's father found her body the next day.

¶ 2. This Court affirmed Woodward's subsequent capital murder conviction and death sentence. Thereafter, however, this Court granted Woodward's petition for post-conviction relief, based upon the United States Supreme Court's decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). The case was remanded for resentencing, and Woodward was, once again, sentenced to death. The appeal sub judice arises from Woodward's second sentencing trial.

¶ 3. Several of the issues raised by Woodward on appeal were not presented to the trial judge for consideration; therefore, consideration of these issues is procedurally barred. In addition, after due consideration, this Court finds each issue raised by Woodward to be without merit. Accordingly, the judgment sentencing Woodward to death is affirmed.

II. STATEMENT OF THE CASE

¶ 4. On September 8, 1986, Paul Everette Woodward was indicted by the Perry County Grand Jury for the July 23, 1986, capital murder (with the underlying crime of rape), kidnapping, and sexual battery of Rhonda Crane. Upon Woodward's motion for change of venue, a trial was held in Hinds County in April, 1987. Woodward was convicted on all three counts, and was sentenced to death on the capital murder conviction. On direct appeal, this Court affirmed. Woodward v. State, 533 So.2d 418 (Miss.1988) (hereinafter Woodward I ), cert. denied, 490 U.S. 1028, 109 S.Ct. 1767, 104 L.Ed.2d 202 (1989), reh'g denied, 490 U.S. 1117, 109 S.Ct. 3179, 104 L.Ed.2d 1041 (1989).

¶ 5. On October 7, 1993, this Court granted Woodward's motion for post-conviction relief, and remanded the case for resentencing on the capital murder charge. Specifically, this Court cited the United States Supreme Court decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and held that Woodward's death sentence was improper because the sentencing jury was incorrectly instructed regarding the “especially heinous, atrocious, or cruel” aggravating circumstance. Woodward v. State, 635 So.2d 805, 811 (Miss.1993) (hereinafter Woodward II ).

¶ 6. On remand for resentencing on the capital murder charge, the trial judge granted Woodward's motion to withdraw the motion for change of venue. Jury selection in Perry County began September 13, 1995.

¶ 7. On September 20, 1995, the jury rendered its verdict, that Woodward should, once again, be sentenced to death. Specifically, the jury found that Woodward: a) attempted to kill the victim, b) actually killed the victim, c) intended the killing of the victim, and d) contemplated that lethal force would be employed. The jury also found the following aggravating factors to exist: a) the murder was committed while Woodward was engaged in the commission of rape, b) the murder was especially heinous, atrocious, or cruel, and c) the murder was committed for the purpose of avoiding or preventing a lawful arrest, or effecting an escape from custody. The trial judge then sentenced Woodward to death.

¶ 8. On September 26, 1995, Woodward moved for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial. The trial judge denied the motion October 12, 1995. From that judgment, Woodward appeals, in forma pauperis, and raises the following issues for consideration by this Court:

A. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S CHALLENGES TO MISSISSIPPI'S CAPITAL MURDER STATUTES?

B. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S REQUEST FOR PSYCHIATRIC EVALUATION?

C. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PEREMPTORILY STRIKE EVERY AVAILABLE BLACK JUROR IN VIOLATION OF BATSON V. KENTUCKY AND POWERS V. OHIO?

D. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION OF PHOTOGRAPHS OF THE DECEDENT?

E. WHETHER THE TRIAL COURT'S LIMITING INSTRUCTION DEFINING “ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL” BOTH BY ITS DEFINITION OF TERMS AND ITS REFERENCE TO MUTILATION, TORTURE OR DISMEMBERMENT WAS CONSTITUTIONALLY INVALID AND UNSUPPORTED BY THE EVIDENCE IN THIS CASE?

F. WHETHER THE STATE ADDUCED EVIDENCE TO SUPPORT THE PROPOSITION THAT THE MURDER WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR PREVENTING DETECTION AND LAWFUL ARREST?

G. WHETHER THE SUPREME COURT CAN REWEIGH REMAINING AGGRAVATING CIRCUMSTANCES TO DETERMINE WHETHER THE DEATH SENTENCE WAS PROPER?

H. WHETHER THE PAYMENT OF THE STATE'S WITNESSES IN EXCESS OF THE AMOUNT PERMITTED BY LAW CONSTITUTES PROSECUTORIAL MISCONDUCT THAT MANDATES REVERSAL?

¶ 9. As stated earlier, consideration of several of these issues is procedurally barred, because the issues were not presented to the trial court. This rule is not diminished in a capital case. Chase v. State, 645 So.2d 829, 845 (Miss.1994); Foster v. State, 639 So.2d 1263, 1270 (Miss.1994); Cole v. State, 525 So.2d 365, 369 (Miss.1987); Irving v. State, 498 So.2d 305, 307 (Miss.1986); Johnson v. State, 477 So.2d 196, 214 (Miss.1985); In re Hill, 460 So.2d 792, 798 (Miss.1984); Hill v. State, 432 So.2d 427, 439 (Miss.1983). Alternatively, this Court has considered the merits of the procedurally barred claims, with the knowledge that any subsequent review will stand on the bar alone. Chase, 645 So.2d at 845; Foster, 639 So.2d at 1270. Additionally, this Court has considered the merits of the remaining claims.

¶ 10. After thorough consideration, this Court finds that the issues raised by Woodward on appeal lack merit. For this reason, the trial court's imposition of the death sentence is affirmed. Moreover, in cases where the death sentence is affirmed, Mississippi law mandates a determination of the following additional issue:

I. WHETHER, PURSUANT TO MISS. CODE ANN. § 99-19-105(3), THE DEATH SENTENCE IMPOSED IN THIS CASE WAS FREE FROM THE INFLUENCE OF PASSION, PREJUDICE OR ANY OTHER ARBITRARY FACTOR; SUPPORTED BY THE EVIDENCE; AND PROPORTIONATE TO THE PENALTY IMPOSED IN SIMILAR CASES?

III. LEGAL ANALYSIS

¶ 11. This Court's standard for reviewing an appeal from capital murder conviction and death sentence was explained in Williamson v. State, 512 So.2d 868, 872 (Miss.1987): On appeal to this Court convictions of capital murder and sentences of death must be subjected to what has been labeled ‘heightened scrutiny.’ Under this method of review, all bona fide doubts are to be resolved in favor of the accused because ‘what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.’ Balfour v. State, 598 So.2d 731, 739 (Miss.1992) (citations omitted). Woodward raises eight assignments of error for this Court's review under this standard.

A. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S CHALLENGES TO MISSISSIPPI'S CAPITAL MURDER STATUTES?

¶ 12. Woodward filed several pre-trial motions challenging the validity of Mississippi's capital murder statutes, all of which were denied. On appeal, Woodward contends that Mississippi's capital murder statutes are unconstitutional because capital punishment is cruel and unusual. He also argues that the imposition of capital punishment is inherently capricious.

¶ 13. “[T]his Court has previously determined that Mississippi's capital sentencing scheme, as a whole, is constitutional.” Lockett v. State, 614 So.2d 888, 897 (Miss.1992) (citing Billiot v. State, 454 So.2d 445 (Miss.1984); Smith v. State, 419 So.2d 563 (Miss.1982); Jones v. State, 381 So.2d 983 (Miss.1980); Coleman v. State, 378 So.2d 640 (Miss.1979)). Therefore, Woodward's argument is without merit.

B. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S REQUEST FOR PSYCHIATRIC EVALUATION?

¶ 14. Woodward also moved pre-trial for funds with which to be examined by Dr. John Ritter, a psychiatrist. Dr. Clarence Thurman, the clinical psychologist who had extensively evaluated Woodward in 1986 and 1994, filed an affidavit supporting Woodward's request for evaluation by a forensic psychiatrist. According to Dr. Thurman: Given the severity of Mr. Woodward's emotional problems, I believe that his request for examination and assistance by a forensic psychiatrist is reasonably necessary to his defense. Such an examination would complement my own interviews and testing of Mr. Woodward and provide a different perspective regarding his emotional problems. I believe such further examination by a medically licensed psychiatrist would not be cumulative and would contribute substantially and significantly to Mr. Woodward's defense.

¶ 15. The trial judge granted in part and denied in part Woodward's motion for psychiatric evaluation as follows:

IT IS, THEREFORE, ORDERED AND ADJUDGED, that the defendant be allowed evaluation at Mississippi State Hospital if he so desires psychiatric examination, and to continue to have at his disposal Dr. Clarence Therman [sic], who has previously examined the defendant, as well as testified in connection with this matter for the defendant's behalf, and to allow the defendant additional funds to continue any examination and treatment of the defendant by Dr. Clarence Therman [sic], and the portion of the Motion requesting additional psychiatric expertise is overruled.

¶ 16. Thus, the trial judge granted Woodward the opportunity for psychiatric evaluation at Whitfield State Hospital, but denied him the opportunity to be examined by his psychiatrist of choice. Woodward argues that the opportunity to be examined by State psychiatrists was not adequate. He claims that he was prejudiced by being denied access to a medical expert to corroborate and enhance Dr. Thurman's testimony, because such corroboration would have been highly relevant to the mitigation evidence in this case. In support of his argument, Woodward cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

¶ 17. In Ake, the United States Supreme Court ruled that a trial judge is required “to allow expert psychiatric or psychological assistance to indigent defendants upon a threshold demonstration that sanity will be an issue or for the purpose of rebutting the State's experts regarding mental condition.” Cole v. State, 666 So.2d 767, 781 (Miss.1995) (citing Ake, 470 U.S. at 83, 105 S.Ct. at 1096). In the case sub judice, the State did not present expert evidence of Woodward's mental condition in its case-in-chief. However, Woodward presented Dr. Thurman's expert psychological testimony in mitigation. Therefore, Woodward's mental condition did appear to be “an issue” in the case, such that Ake would apply.

¶ 18. Nonetheless, even the Ake Court acknowledged that a criminal defendant is not entitled “to choose a psychiatrist of his personal liking or to receive funds to hire his own.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096. Rather, the Court's concern was that “the indigent defendant have access to a competent psychiatrist.” Id.

¶ 19. Thus, the question is, whether the order allowing Woodward to be examined at the Whitfield State Hospital met the requirements of Ake. This Court has repeatedly held that, where the defendant was evaluated by psychiatrist(s) from the Whitfield State Hospital, the examination “satisfied ‘the constitutional mandate of [ Ake v. Oklahoma ].’ ” Butler v. State, 608 So.2d 314, 321 (Miss.1992) (quoting Willie v. State, 585 So.2d 660, 671 (Miss.1991)); Cole, 666 So.2d at 781; Lanier v. State, 533 So.2d 473, 480-81 (Miss.1988). The analysis is no different in this case, even though Woodward did not avail himself of the examination allowed by the trial court.

¶ 20. Therefore, the trial judge's decision to allow Woodward to undergo psychiatric evaluation at the Whitfield State Hospital was sufficient. Woodward's argument to the contrary is without merit.

C. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PEREMPTORILY STRIKE EVERY AVAILABLE BLACK JUROR IN VIOLATION OF BATSON V. KENTUCKY AND POWERS V. OHIO?

¶ 21. Woodward also argues that, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the trial judge erred in granting the State's peremptory challenges to black members of the venire. The record reflects that Woodward is white. The State exercised eleven peremptory challenges to the jury pool, five of which were for blacks. The State exercised one strike for each of the two alternate juror positions; one of the potential alternates challenged by the State was black. As a result of these challenges, every black person was removed from the jury panel, and the jury that was eventually empaneled was composed entirely of white members.

¶ 22. According to Batson and its progeny, the State cannot exercise its peremptory strikes in a racially discriminatory manner. Powers, 499 U.S. at 415-16, 111 S.Ct. at 1373-74. A review of Batson questions normally involves a three-step analysis: The Supreme Court set forth a three[-]step process for determining whether a party has improperly utilized peremptory challenges for the purpose of racially discriminating against potential jurors in violation of the Equal Protection Clause. The party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory challenge. If this initial showing is successful, the party desiring to exercise the challenge has the burden to offer a race-neutral explanation for striking the potential juror. The trial court must then determine whether the objecting party has met their burden to prove there has been purposeful discrimination in the exercise of the peremptory [challenge]. Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995).

¶ 23. Thus, ordinarily, the first step in this analysis would be to determine whether there was a prima facie showing that race was the motivation for the State's peremptory challenges. However, in this case, the State has given an explanation for the exercise of its peremptory strikes. Under these circumstances, the sufficiency of the prima facie showing of discrimination is moot. Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991); Mack v. State, 650 So.2d 1289, 1298 (Miss.1994).

¶ 24. Therefore, the first prong of the analysis is to determine whether the State met its burden of offering race-neutral reasons for its peremptory challenges of blacks members of the venire. “The establishment of a race[-]neutral reason is not a difficult task.” Stewart, 662 So.2d at 558; Griffin v. State 607 So.2d 1197, 1202 (Miss.1992). [A] trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority persons are to be accorded great deference and will not be reversed unless they appear clearly erroneous or against the overwhelming weight of the evidence. This perspective is wholly consistent with our unflagging support of the trial court as the proper forum for resolution of factual controversies. Stewart, 662 So.2d at 558 (quoting Lockett v. State, 517 So.2d 1346, 1350 (Miss.1987)); Johnson v. Mississippi, 529 So.2d 577, 583-84 (Miss.1988) (“The determination of whether purposeful discrimination has been shown largely turns on credibility ... a trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority persons are accorded great deference and will not be reversed unless they appear clearly erroneous or against the overwhelming weight of the evidence.”).

¶ 25. Woodward argues that the State's reasons for challenging black members of the venire were “blatantly pretextual.” The State argues that the reasons given were sufficiently race-neutral.

¶ 26. The record reflects that the trial judge granted the State's peremptory challenges to five black members of the jury panel. The following is an analysis of the State's reasons for exercising the peremptory strikes, which reasons the trial judge determined were race-neutral: 1. Juror No. 7-The State gave the following reason for challenging Juror No. 7, “she is unemployed and on a previous case was unable to reach a verdict.” “[B]eing unemployed is a race-neutral explanation that can be used to strike a juror.” Mack, 650 So.2d at 1298 (citing Porter v. State, 616 So.2d 899, 907 (Miss.1993)); Foster v. State, 639 So.2d 1263, 1280 (Miss.1994). In addition, this Court has held that previous service on a jury in a case which resulted in a mistrial is a race-neutral reason for challenging a potential juror. Harper v. State, 635 So.2d 864, 868 (Miss.1994). Therefore, Woodward's argument with regard to this member of the venire is without merit. 2. Juror No. 12-The following transpired with regard to the State's peremptory challenge of Juror No. 12: BY [THE ASSISTANT DISTRICT ATTORNEY]: ... Juror No. 12 ... was unresponsive. [Co-counsel] both indicated to me that she was very hostile when the State was on voir dire and open to the defense. Further that her relative works in Leakesville with the prison system and we struck her on that basis. We didn't want her to have any affiliations with that. * * * BY [DEFENSE COUNSEL]: ... No. 12. He said something about that she was hostile. I remember her as being very cooperative. BY [THE ASSISTANT DISTRICT ATTORNEY]: That's exactly what we're saying, she was cooperative with you. BY [DEFENSE COUNSEL]: No, she was cooperative with everybody. I don't remember her being hostile. BY THE COURT: The Court is of the opinion that the strikes were not racially motivated and was not being done to constitute members of a certain race on the jury panel.

Woodward argues that the State did not peremptorily challenge several white members of the venire who had relatives in law enforcement. These relatives included a brother who worked with the Sheriff's Office; a brother-in-law who was a constable, and a part-time police department employee; and, two in-laws in law enforcement. However, it is clear from the record that the State moved to peremptorily strike both white and black veniremen who had relatives working for prison systems. That is, the State objected to the fact that the potential jurors' relatives worked in prisons-not that they worked in “law enforcement.” “Employment and factors related thereto have ... been accepted by various courts as race-neutral reasons for a peremptory challenge.” Walker v. State, 671 So.2d 581, 628 (Miss.1995) (the fact that the potential juror was a member of the Board of Directors for the Capital Defense Project was a sufficiently race-neutral reason for exercising a peremptory challenge). In addition, the fact that the State exercised a similar challenge to a white juror “adds strength to the prosecutor's reason and shows consistency of action along racially neutral lines.” Johnson, 529 So.2d at 585.

Furthermore, the State also challenged this potential juror because she seemed hostile to the prosecution and “open” to the defense. A similar factual situation arose in Harper v. State, 635 So.2d 864, 868 (Miss.1994), and this Court upheld the reason given by the State as race-neutral. Harper, 635 So.2d at 868 (quoting Johnson, 529 So.2d at 585) (“A prosecutor may sense by a juror's demeanor that he is hostile to being in court and thus fear that the juror might respond negatively to the prosecution simply because the government was responsible for calling him to jury duty.”).

Moreover, this Court has held that “[a]n expression of contempt or hostility may reasonably be assumed to spell trouble for the prosecution. Such demeanor is a legitimate reason, related to any case, for a prosecutor to exercise a peremptory challenge.” Lockett v. State, 517 So.2d 1346, 1351-52 (Miss.1987). For these reasons, the trial judge did not abuse his discretion in granting the State's peremptory challenge to this witness.

3. Juror No. 22-There is considerable discussion in the record about Juror No. 22, beginning with her ambiguous testimony during individual voir dire regarding her stance on the death penalty. After the individual voir dire, the State questioned Juror No. 22's competence. The trial judge noted the inconsistencies in Juror No. 22's answers, and the fact that the juror would not maintain eye contact. However, he decided to return her to the jury pool.

Thereafter, the State's request to remove this potential juror from the venire for cause was denied. The trial judge stated, “She was incoherent at times I thought, and her body language was such that she did appear nervous. She did not maintain eye contact with anyone. But I don't know that she reached the level of incompetence.” The judge then asked if the State wanted further individual voir dire of Juror No. 22, and the State declined.

Later, the trial judge granted the State's peremptory challenge to this potential juror. The trial judge ruled that the peremptory strike was not racially motivated. The record clearly indicates that the State struck this member of the venire because of doubts concerning her competency. The trial judge noted in the record that this potential juror would not make eye contact, seemed nervous, and gave conflicting, if not incomprehensible, responses with regard to her opinion of capital punishment. Lack of eye contact and demeanor have been approved as race-neutral reasons for peremptorily challenging black members of the venire. Lockett, 517 So.2d at 1351-52. This is particularly true in this case, where the judge described the potential juror's demeanor as “appear[ing] incoherent.” Therefore, the trial judge properly ruled that the State's peremptory challenge to this potential juror was not racially motivated.

4. Juror No. 56-The State gave the following reason for peremptorily challenging Juror No. 56: BY [THE ASSISTANT DISTRICT ATTORNEY]: Yes. We talked to Jerry Gardner. She is related to another potential juror, No. 67, on the panel, but her husband has had law enforcement problems at a trailer park, according to Jerry Gardner. And we struck her on that basis. We thought there might be some empathy with that particular case. She lives in the Sand Ridge Trailer Park here in New Augusta.

Woodward argues that a white juror served on the jury, even though he was related to a member of the jury panel. However, the record clearly indicates that the State had another reason for peremptorily challenging Juror No. 56. That is, her husband had “law enforcement problems”, and this might make her more empathetic to Woodward. This is a race-neutral reason, and the State's peremptory challenge was properly granted. See Collins v. State, 691 So.2d 918, 927 (Miss.1997) (citing Griffin, 607 So.2d at 1203 and Benson v. State, 551 So.2d 188 (Miss.1989)) (striking minority venireman because relative was convicted or was tried for crime is a race-neutral reason).

5. Juror No. 67-During voir dire, Juror No. 67 indicated that she was a psychology major in college and that she had two courses in psychology. She had not really used her major, and she was not familiar with psychological testing. She had done “some” reading on the subject of psychology since college. The State gave the following reason for peremptorily challenging Juror No. 67: “Psychological [sic] major, Your Honor. We struck the same one on S-7, juror No. 37, for the same reason, we don't want a psychology person. And we don't have a written response from her as well.” Woodward argues that a white juror was allowed to serve, despite the fact that he did not turn in a questionnaire. However, the record clearly demonstrates that the State was also concerned about Juror No. 67's psychological training. In fact, the State exercised a peremptory challenge on a white member of the venire with similar training. As stated earlier, this “adds strength to the prosecutor's reason and shows consistency of action along racially neutral lines.” See Johnson, 529 So.2d at 585.

Although this Court has not addressed this particular reason for exercising a peremptory challenge to a black venireman, one of our neighboring states has considered this issue in an extremely factually similar case. In Ex parte Brown, 686 So.2d 409 (Ala.1996), the Alabama Supreme Court considered this question in the context of a capital murder conviction and sentence of death. The prosecutor moved to strike a black member of the jury pool, who had studied psychology in college. The State also moved to strike a white member of the venire, whose spouse was a psychologist. The defendant's mental condition was a substantial issue at trial. The Alabama Court found that the reason for striking the black psychology major was a race-neutral reason. Brown, 686 So.2d at 418. See also Adanandus v. Johnson, 947 F.Supp. 1021, 1072 (W.D.Tex.1996) (potential juror's training in psychology was one of several race-neutral reasons for striking her); People v. Thomas, 266 Ill.App.3d 914, 204 Ill.Dec. 437, 443, 641 N.E.2d 867, 873 (1994) (psychology student was excused for racially neutral reason). This Court finds the reasoning of the Alabama Court to be persuasive, and holds that the fact that this potential juror had majored in psychology was a sufficiently race-neutral reason for the State's peremptory challenge.

After these peremptory challenges were exercised, the State successfully challenged one black alternate juror (Juror No. 72). The trial judge did not issue a specific ruling with regard to the reason given by the State for challenging this potential alternate juror.

6. Juror No. 72-Juror No. 72 gave the following response during the State's voir dire: BY [THE ASSISTANT DISTRICT ATTORNEY]: ... Is there anyone here that feels that a victim of rape somehow did something to lure a man to do this? Enticed a man or attracted a man to her to cause him to do this? Anybody have those feelings at all? Yes, Sir. NO. 72 ...: Will you ask that question again? Do you feel that a rape victim had to lure a man to commit this crime or she enticed the man to commit the crime or somehow attracted him to her to have him commit this crime? A. You say she had to? Yes. Do you feel that way? A. No.

The following transpired with regard to the State's peremptory challenge to this person's service as an alternate juror: BY [THE ASSISTANT DISTRICT ATTORNEY]: We are going to strike him based on the response to the rape question as well as the fact that his brother-in-law is a convicted felon. BY THE COURT: So that brings up [the next person] --- BY [DEFENSE COUNSEL]: For the record, we want to note that [Juror No. 72] is black. They have now struck every black juror.

Striking minority members of the jury pool who are related to a person who has been convicted or tried for a crime is a race-neutral reason. See Collins, 691 So.2d at 927; Griffin, 607 So.2d at 1203; Benson, 551 So.[2d] at 192. See also Lockett, 517 So.2d at 1351 (“The juror whose brother was convicted of armed robbery can easily be seen as being potentially prejudiced against the prosecution.”). Therefore, the State's reason for striking this potential juror was sufficient.

¶ 27. Woodward also claims that the trial judge erred by summarily rejecting defense counsel's Batson arguments, and cites Hatten v. State, 628 So.2d 294, 298 (Miss.1993). In Hatten, this Court prospectively held it “necessary that trial courts make an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors.” Hatten, 628 So.2d at 298. However, where defense counsel does not rebut the race-neutral reasons offered by the State, “the trial judge may base his decision only on the reasons given by the State.” Coleman v. State, 697 So.2d 777, 786 (Miss.1997) (citing Bush v. State, 585 So.2d 1262, 1268 (Miss.1991)). See also Sudduth v. State, 562 So.2d 67, 71 (Miss.1990) (“In the absence of an actual proffer of evidence by the defendant to rebut the State's neutral explanations, this Court may not reverse on this point.”)

¶ 28. The record reflects that the trial judge participated attentively in the discourse regarding these potential jurors. Furthermore, with the exception of the challenge to the potential alternate juror, the trial judge specifically found that the State's peremptory challenges were not used in a racially discriminatory manner.

¶ 29. In addition, the defense did not rebut most of the reasons submitted by the State. The defense did argue that Juror No. 12 had not been hostile as the State claimed; however, the defense did not rebut the State's other reason for striking this potential juror (that she was related to a prison employee).

¶ 30. The defense also argued, with regard to Juror No. 7, that “the fact that she was unable to reach a verdict in some prior jury is not a racially neutral reason. It's a non-race and it's an irrelevant reason.” As stated earlier, the fact that a member of the venire has previously served on a case resulting in a mistrial is a valid, race-neutral reason for exercising a peremptory challenge. Furthermore, this legal argument by defense counsel did not address the other reason offered by the State against this potential juror (that she was unemployed).

¶ 31. Other than offering these rebuttal statements, the defense repeatedly “noted for the record” that the challenges by the State were for blacks, but did not rebut the reasons given by the State for exercising the strikes. In addition, the trial judge was very attentive to both parties with regard to the exercise of the peremptory challenges. However, the trial judge did not make extensive findings of fact regarding the reasons given by the State (except for his findings regarding the “incoherent” demeanor of Juror No. 22). Rather, the judge ruled that the reasons were race-neutral and that the State's peremptory strikes were not used for the purpose of excluding blacks from the jury.

¶ 32. Given that defense counsel did not rebut all the reasons offered by the State for striking any one potential juror, and, given, that all of the reasons offered by the State were race-neutral, the trial judge did not err in basing his ruling only on the reasons offered by the State. See Coleman, 697 So.2d at 786; Bush, 585 So.2d at 1268; Sudduth, 562 So.2d at 71.

¶ 33. The only peremptory challenge on which the trial judge made no finding was that of potential alternate Juror No. 72. However, the defense did not challenge the State's reason for striking this juror. Rather, defense counsel stated, “For the record, we want to note that [Juror No. 72] is black. [The State has] now struck every black juror.” From this statement, it is not clear that defense counsel wanted to do anything more than make a note for the record; therefore, it is not clear whether the trial judge was being asked to make a ruling.

¶ 34. Moreover, the fact that the trial judge did not give an explicit ruling on this potential alternate juror did not prejudice Woodward in any way. That is, none of the alternate jurors were asked to sit on the actual panel, so the State's peremptory strike of this potential alternate juror did not affect the outcome of the case. For these reasons, Woodward's assignments of error with regard to Batson are without merit.

D. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION OF PHOTOGRAPHS OF THE DECEDENT?

¶ 35. Woodward next argues that the trial judge erred by admitting two photographs of the deceased victim. The record reflects that two photographs of the victim's body were introduced over Woodward's objection. These photographs were initially introduced during the testimony of the victim's father, who was the first person to arrive at the scene of the murder. The pictures were used again during the testimony of the officer who arrived at the scene a few moments after the victim's father.

¶ 36. Woodward contends that these pictures were gruesome and prejudicial and without probative value (since corpus delicti, cause of death, location and or identity of the victim were not at issue). In support of his argument, Woodward cites Sudduth v. State, 562 So.2d 67 (Miss.1990), in which this Court noted that “photographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied, and the corpus delicti and the identity of the deceased have been established.” Sudduth, 562 So.2d at 70.

¶ 37. However, the very next sentence in the Sudduth opinion states the general rule with regard to the admission of this type photograph: “Photographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.” Sudduth, 562 So.2d at 70; See Brown v. State, 690 So.2d 276, 289 (Miss.1996); Alexander v. State, 610 So.2d 320, 338 (Miss.1992).

¶ 38. Furthermore, the standard for reviewing the admission of photographs is whether the admission was an abuse of the trial judge's discretion: The admissibility of photographs rests within the sound discretion of the trial court. Jackson v. State, 672 So.2d 468, 485 (Miss.1996); Griffin v. State, 557 So.2d 542, 549 (Miss.1990); Mackbee v. State, 575 So.2d 16, 31 (Miss.1990); Boyd v. State, 523 So.2d 1037, 1039 (Miss.1988). Moreover, the decision of the trial judge will be upheld unless there has been an abuse of discretion. Brown, 690 So.2d at 289; Holly v. State, 671 So.2d 32, 41 (Miss.1996); Chase, 645 So.2d at 848-49.

¶ 39. This standard is very difficult to meet. In fact, the “ ‘discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.’ ” Brown, 690 So.2d at 289; Holly, 671 So.2d at 41. “At this point in the development of our case law, no meaningful limits exist in the so-called balance of probative/prejudicial effect of photographs test.” Chase, 645 So.2d at 849 (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)).

¶ 40. Furthermore, this Court has found photographs to be “so gruesome and inflammatory as to be prejudicial in only one circumstance, a close-up photograph of a partly decomposed, maggot-infested skull.” Brown, 690 So.2d at 289 (quoting Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996)) (citing McNeal v. State, 551 So.2d 151 (Miss.1989)); Holly, 671 So.2d at 41. But see Welch v. State, 566 So.2d 680, 685 (Miss.1990) (where autopsy photographs of dissected victim “were extremely unpleasant and used in such a way as to be overly prejudicial and inflammatory.”). Clearly, the pictures in the case at hand do not rise to that level of gruesomeness.FN1

FN1. It should be noted that these photographs were not particularly gruesome. One is a wide-angle shot of the crime scene, in which the victim's torso appears. There are some white, discolored spots on her legs; the doctor who performed the autopsy testified that this was due to sun exposure. The victim's face is not in the picture. The other is a picture of the victim's entire body. It shows blood on her face; the doctor who performed the autopsy testified that this was expelled from her lungs after death. There also appears to be some bruising on the left side of the victim's face; the doctor who performed the autopsy testified that this was caused by the gravitation of blood to the lowest point. The photographs, although unpleasant, were neither gory nor gruesome.

In Westbrook v. State, 658 So.2d 847, 849 (Miss.1995), this Court found that photographs of a victim have evidentiary value when they aid in describing the circumstances of the killing, Williams v. State, 354 So.2d 266 (Miss.1978); describe the location of the body and cause of death, Ashley v. State, 423 So.2d 1311 (Miss.1982); or supplement or clarify witness testimony, Hughes v. State, 401 So.2d 1100 (Miss.1981). Brown, 690 So.2d at 289; Holly, 671 So.2d at 41.

¶ 41. In this case, the pictures had evidentiary value with regard to the “heinous, atrocious, or cruel” aggravating factor. See Jackson v. State, 684 So.2d 1213, 1231 (Miss.1996) (quoting Shell v. State, 554 So.2d 887, 902 (Miss.1989) (photographs of deceased victim are admissible “during the sentencing phase ‘on the issue of whether the crime was heinous, atrocious, or cruel.’ ”)). Furthermore, the photographs supplemented the testimony of the victim's father, who actually found her body. In addition, the pictures supplemented the testimony of Chief Deputy Gardner, who arrived at the crime scene within moments after the victim's body was found. See Mackbee, 575 So.2d at 31-32 (pictures of victims' bodies in trunk of car “supplemented the officers' testimonies concerning what they ... found at the scene.”).

¶ 42. Given the numerous cases in which the introduction of such photographs has been upheld, the amount of discretion afforded the trial judge in these cases, and the nature of the photographs in the case sub judice, this Court holds that the photographs were properly admitted. That is, their probative value outweighed their unpleasantness and/or gruesomeness. Woodward's argument to the contrary is, therefore, without merit.

¶ 43. Woodward further claims that the pictures were misleading as to the actual cause of death. The testimony of Chief Deputy Jerry Gardner indicated that, due to the apparent bruising and blood on the victim's face, he initially thought that the victim had been hit in the head. He did not know, therefore, that she had been shot in the head, until Woodward confessed to shooting her and the pathologist's report confirmed the cause of death.

¶ 44. The doctor who performed the autopsy of the victim explained that the blood from the victim's lungs was expelled through her nose after death, and that the apparent bruising on the left side of her face was caused by gravitation of her blood to that area after death. There is no indication that “trick” photography was used. Therefore, the pictures show the image of the deceased victim as it actually appeared to the witnesses who discovered her body, and are not misleading. Woodward's argument to the contrary is wholly without merit.

¶ 45. Woodward also claims that he was prejudiced when these photographs were allowed to remain on the projection screen after the authenticating witness finished testifying. The record reflects that the following occurred at the end of the testimony of the victim's father: Q. Where you found her body, was that located in Perry County, Mississippi? A. Yes, Sir. BY [THE ASSISTANT DISTRICT ATTORNEY]: We would tender the witness at this time, your Honor. BY THE COURT: Cross-examination? BY [DEFENSE COUNSEL]: We have no questions, your Honor. BY THE COURT: May he be finally excused? BY [THE ASSISTANT DISTRICT ATTORNEY]: Yes, sir. BY THE COURT: I thank you. You may be finally excused. (WITNESS EXCUSED) BY THE COURT: Who do you call next? BY [THE ASSISTANT DISTRICT ATTORNEY]: If it please the Court, we would have a motion on the next witness. BY THE COURT: All right. Ladies and gentlemen of the jury, it will be necessary for the Court to develop certain things outside the presence of your hearing. Let me caution you this case is not yet before you for your deliberation. At this point in time it would be a violation of your sworn duty to attempt to deliberate among yourselves. Under the direction of the bailiff, you may be retired to the jury room. AT THIS POINT THE JURY WAS EXCUSED TO THE JURY ROOM, AND THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT OUTSIDE THE PRESENCE OF THE JURY: BY [DEFENSE COUNSEL]: I've got a motion, too. BY THE COURT: All right. BY [DEFENSE COUNSEL]: Comes now the defendant, Paul Woodward, and moves for a mistrial based on the fact that the photographs to which we had objected and to which there was to be an agreement of limited use were left on this tele- BY [THE ASSISTANT DISTRICT ATTORNEY]: I object to the term “of limited use.” I don't know of any agreement of limited use. BY THE COURT: Wait a minute. Let him finish. BY [DEFENSE COUNSEL]: Let me finish my-were left on the teleprompter after this witness has been excused for the sole purpose of continuing to inflame and prejudice the jury. BY [THE ASSISTANT DISTRICT ATTORNEY]: If it please the Court, there has been no agreement of limiting use of photographs. This photograph was left there when I escorted Mr. Holliman off the stand. I could have easily distributed them to the entire jury panel. It was not done. So we had started to proceed with the next witness, to get the jury out of the way before I went up there and got the photographs off. If there was a problem, there should have been an objection raised prior to being left there, but there's been no prejudice because the State can easily distribute all three photographs and let the jury handle each individually. It was not done. BY THE COURT: The kind of time frame we're talking about also is very short- BY [THE ASSISTANT DISTRICT ATTORNEY]: Limited, about fifteen seconds at the most while the jury exited the courtroom. BY THE COURT: All right. You want to be heard further on this? BY [DEFENSE COUNSEL]: Just that it was-it was left on there enough so that the jury could parade right in front of it, and there's a big difference between circulating these photographs and leaving them on this teleprompter so that they can be exposed and impressed on their minds and going beyond after this witness had stopped testifying, and we would- BY [THE ASSISTANT DISTRICT ATTORNEY]: If it please the Court, I can-with the next witness, I may do it with Mr. Gardner, pass the photographs around individually, let them each take however long they want to take with these photographs. There's no time limitation on how long a juror can look at it. It's in evidence. There is no prejudice on something like this. BY THE COURT: I'm going to overrule the motion for a mistrial, but I'm going to caution you in the future, Mr. [Assistant District Attorney], don't leave them on there past the time that your witness is testifying. BY [THE ASSISTANT DISTRICT ATTORNEY]: Yes, sir.

¶ 46. The use of a projector to enhance the testimony of a witness is within the discretion of the trial court, and is encouraged-to the extent it aids “the jury in understanding the witness or other evidence.” Jenkins v. State, 607 So.2d 1171, 1176 (Miss.1992). In addition, the use of a projector during closing arguments is within the discretion of the trial judge. Smith v. State, 419 So.2d 563, 567 (Miss.1982), overruled on other grounds by Willie v. State, 585 So.2d 660 (Miss.1991). However, the use of a “slide show” during closing arguments for the sole purpose of inflaming the jury is prohibited. Id. The critical question in this case is whether the manner in which the projector was used was inflammatory.

¶ 47. The trial judge was there when the photograph was left on the projector. He indicated that it was before the jury for only a “very short” time, and he cautioned the prosecution about leaving such a photograph on the projector in the future. Therefore, the trial judge did not abuse his discretion by overruling the defense's motion for a mistrial. The record does not indicate that the projector was used in an inflammatory manner. See Id. Thus, the photographs of the deceased victim were properly admitted. Woodward's argument on this point lacks merit.

E. WHETHER THE TRIAL COURT'S LIMITING INSTRUCTION DEFINING “ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL” BOTH BY ITS DEFINITION OF TERMS AND ITS REFERENCE TO MUTILATION, TORTURE OR DISMEMBERMENT WAS CONSTITUTIONALLY INVALID AND UNSUPPORTED BY THE EVIDENCE IN THIS CASE?

¶ 48. One of the aggravating factors found to exist by the jury was that the capital murder of Rhonda Crane was especially heinous, atrocious, or cruel. Woodward argues that instruction S-3 (the limiting instruction that defined “especially heinous, atrocious, or cruel”) was unconstitutional and unsupported by the evidence. That instruction provided as follows: The Court instructs the jury that in considering whether the capital offense was especially heinous, atrocious, or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others. An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of capital murders-the conscienceless or pitiless crime which is unnecessarily tortuous to the victim. If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, that there was dismenmberment [sic] of the body prior to death, that there was mental torture and aggravation before death, or that a lingering or torturous death was suffered by the victim then you may find this aggravating circumstance.

¶ 49. The record reflects that Woodward timely objected to the giving of this instruction. The issue was also raised in Woodward's post-trial motion for JNOV, or, in the alternative, a new trial.

¶ 50. Woodward submits that this instruction did not properly limit the instruction on the “heinous, atrocious, or cruel” aggravator. Indeed, the first sentence of this instruction, standing alone, has been rejected as a proper limiting instruction by the United States Supreme Court. See Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). However, the first and second sentences of instruction S-3 combined have been approved as a proper limiting instruction. Wilcher v. State, 697 So.2d 1087, 1110 (Miss.1997) (citing Clemons, 494 U.S. at 751, 110 S.Ct. at 1449-50; Coleman v. State, 378 So.2d 640, 648 (Miss.1979))

¶ 51. Moreover, when considering the entire, three-sentence instruction S-3 as a whole, practically identical instructions have been approved as appropriate limiting instructions in other cases. See e.g. Jackson v. State, 684 So.2d 1213, 1236 (Miss.1996) (approving similar instruction which did not include “dismemberment” clause, and added “that the Defendant inflicted physical or mental pain before death” after the “serious mutilation” clause); Conner v. State, 632 So.2d 1239, 1270 (Miss.1993) (approving very similar instruction, except final sentence combined “serious mutilation” and “dismemberment of the corpse” in the same clause and inserted the clause “where the Defendant inflicted physical or mental pain before death” before the phrase dealing with “mental torture and aggravation before death”) Davis v. State, 684 So.2d 643, 661-62 (Miss.1996) (approving this exact instruction, with the additional clause “that [the defendant] inflicted physical or mental pain before death” inserted between the phrases “that there was dismemberment of the body prior to death” and “that there was mental torture and aggravation before death”). See also Pinkney v. State, 538 So.2d 329, 357 (Miss.1988), vacated by Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) (approving language used in first two sentences and noting that “barbarity sufficient to satisfy this aggravating circumstance can be demonstrated by showing that the defendant utilized a method of killing which caused serious mutilation, where there is a dismemberment of the corpse, where the defendant inflicted physical or mental pain before death, or where a lingering or torturous death was suffered by the victim”); Jenkins v. State, 607 So.2d 1171, 1181-82 (Miss.1992) (approving the language in the first two sentences followed by the language set forth in Pinkney, 538 So.2d at 357).

¶ 52. Clearly, S-3 is an appropriate limiting instruction, when supported by the evidence. See Jackson, 684 So.2d at 1217-19 (the victims, four children, were stabbed repeatedly); Williams, 684 So.2d at 1183 (victim suffered slashed throat, stabbed heart, and excised privates); Davis, 684 So.2d at 662 (victim was stabbed five times and shot twice, and death was prolonged); Jenkins, 607 So.2d at 1173 (victim's throat was severed).

¶ 53. However, Woodward argues that the limiting instruction was not supported by the evidence. Specifically, he contends that the final sentence of the instruction (which refers to mutilation, dismemberment, torture, and lingering death) was not supported by the evidence. In support of this argument, Woodward cites the fact that the gunshot wound to the head killed the victim instantly.

¶ 54. The record indicates that Woodward pulled his logging truck in front of the victim's car in broad daylight. When she stopped, he forced her from her car and into his truck at gunpoint. He drove her approximately 4.5 miles to a secluded location. Woodward, still holding the gun, led the victim away from the truck and into the woods. Approximately 50-100 yards into the woods, they came to a clearing, where the victim was forced to her knees to perform fellatio on Woodward. Woodward then raped her. While the victim was bent over to collect her belongings, Woodward shot her in the back of the head, killing her instantly.

¶ 55. Woodward then went about his business, and continued to haul wood for the rest of the day. When initially questioned by law enforcement, Woodward claimed that he had not seen anything unusual near the scene of the kidnapping that day. Woodward also reported to work, as usual, the next day.

¶ 56. Meanwhile the victim's body had begun to decompose in the July heat, and was infested with maggots when her father found her the day after the murder. She had blood on her face and the left side of her face appeared to be bruised. The doctor who performed the autopsy testified that the blood was expelled from the lungs after death, and the bruising was a result of gravitation of blood after death.FN2 FN2. Woodward's argument is somewhat incongruous, in that he argues that there was no evidence to support the “heinous, atrocious, or cruel” aggravator, but admits that the condition of the victim's face presented evidence from which the jury might “erroneously” infer that dismemberment, mutilation, or torture had taken place. However, even if the victim appeared to have been beaten, there is absolutely no evidence in the record that she was seriously mutilated or dismembered. Indeed, the State admitted this fact in its closing argument, when emphasizing the instructions to the jury.

¶ 57. Clearly, the abduction and rape of the victim prior to her death are evidence that the murder was heinous, atrocious, and cruel within the definition of the first two sentences of instruction S-3. Moreover, the fact that Woodward returned to work as if nothing had happened, as well as his demeanor in the videotaped confession given the day after the murder, indicate that the crime was “conscienceless or pitiless”.

¶ 58. The question is, therefore, whether the final sentence of the instruction was supported by the evidence: If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, that there was dismenmberment [sic] of the body prior to death, that there was mental torture and aggravation before death, or that a lingering or torturous death was suffered by the victim then you may find this aggravating circumstance. (emphasis added).

¶ 59. The evidence discussed above supports the phrase regarding whether the victim suffered “mental torture or aggravation before death” FN3, which phrase is disjoined from the other phrases by the “or” connector. Therefore, the fact that these other phrases are not supported by evidence does not constitute error. That is, because the instruction used the disjunctive term, “or”, the jury was not required to find all of the elements listed. Rather, the jury was only required to find one of the elements (serious mutilation, dismemberment prior to death, mental torture and aggravation before death, or lingering or torturous death). FN3. The jury could have undoubtedly determined that the victim suffered from mental torture prior to her death. She was forced from the road in broad daylight, abducted from her cranked vehicle in the center of a public highway, taken at gunpoint to a remote place in the woods where she was brutally sexually battered, forced to perform fellatio on Woodward, raped, and then killed. Such evidence more than sufficiently set this crime apart from the norm of murders.

¶ 60. The United States Supreme Court has held that there is no constitutional violation where “a trial court instructed a jury on two different legal theories, one supported by the evidence, the other not.” Sochor v. Florida, 504 U.S. 527, 538, 112 S.Ct. 2114, 2122, 119 L.Ed.2d 326 (1992) (citing Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991)). The high Court “reasoned that although a jury is unlikely to disregard a theory flawed in law, it is indeed likely to disregard an option simply unsupported by the evidence.” Sochor, 504 U.S. at 538, 112 S.Ct. at 2122. This is particularly true, given that the prosecutor admitted to the jury that the phrases regarding serious mutilation and dismemberment were unsupported by the evidence.

¶ 61. Moreover, this Court has upheld the use of the disjunctive “heinous, atrocious, or cruel” aggravator, even though it, arguably, allows the jury to find one of these factors without unanimity. See generally Brown v. State, 690 So.2d 276, 295-96 (Miss.1996); Williams v. State, 684 So.2d 1179, 1193 (Miss.1996). See also Conner v. State, 632 So.2d 1239, 1273 (Miss.1993) (affirming death sentence where “scrivener's error” caused jury verdict on Enmund factors to appear in the disjunctive).

¶ 62. In addition, other jurisdictions have adopted this approach in cases where unsupported evidentiary questions appear in the disjunctive form. For example, the California Supreme Court has consistently affirmed death sentences in cases where the jury was instructed on inapplicable aggravating or mitigating factors. See People v. Williams, 16 Cal.4th 153, 66 Cal.Rptr.2d 123, 200, 940 P.2d 710, 787 (1997); People v. Miranda, 44 Cal.3d 57, 241 Cal.Rptr. 594, 744 P.2d 1127 (1987); People v. Ghent, 43 Cal.3d 739, 239 Cal.Rptr. 82, 739 P.2d 1250 (1987).

¶ 63. In addition, the North Carolina Supreme Court recently upheld a death sentence where the limiting instruction appeared in the disjunctive form. State v. Wilkinson, 344 N.C. 198, 474 S.E.2d 375, 389 (1996).

¶ 64. Furthermore, the Arizona Supreme Court has rendered a long line of decisions holding that the jury is only required to find one of the factors in the “heinous, atrocious, or cruel” aggravator. See State v. Roscoe, 184 Ariz. 484, 910 P.2d 635, 651 (1996); State v. Kiles, 175 Ariz. 358, 857 P.2d 1212, 1224 (1993); State v. Wallace, 151 Ariz. 362, 728 P.2d 232, 236-37 (1986) (citing State v. Libberton, 141 Ariz. 132, 685 P.2d 1284, 1291 (1984); State v. Clark, 126 Ariz. 428, 616 P.2d 888, 896, (1980)); State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978); State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980); State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976).

¶ 65. The “heinous, atrocious, or cruel” instruction in this case was supported by the evidence. Moreover, the limiting instruction regarding the definition of “heinous, atrocious, or cruel” was sufficient. The wording of the instruction clearly indicated that it was for the jury to determine which, if any, of the factors in the instruction applied (including serious mutilation, dismemberment prior to death, mental torture and aggravation before death, or lingering or torturous death). At least one of these factors (that the victim suffered mental torture and aggravation before death) was supported by the evidence, and the factors appeared in the disjunctive. In addition, the prosecutor admitted during closing arguments that some of the factors were not supported by the evidence. For these reasons, Woodward's argument on this point is without merit.

F. WHETHER THE STATE ADDUCED EVIDENCE TO SUPPORT THE PROPOSITION THAT THE MURDER WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR PREVENTING DETECTION AND LAWFUL ARREST?

¶ 66. Woodward also argues that the evidence did not support the portion of instruction S-4, which allowed the jury to consider the following aggravator: “That the capital offense was committed for the purpose of avoiding or preventing a lawful arrest, or effecting an escape from custody.” The State correctly argues that Woodward is procedurally barred from raising this issue, because he did not make a contemporaneous objection to instruction S-4. See Carr v. State, 655 So.2d 824, 854 (Miss.1995).

¶ 67. Woodward argues that his objection to S-3 (the limiting instruction for the “heinous, atrocious, or cruel” aggravator) was sufficient to preserve an objection to the “avoiding lawful arrest” aggravator. This argument is clearly specious. Woodward did not specifically object to this instruction, and he is, therefore, procedurally barred from raising the issue on appeal. See Chase v. State, 645 So.2d 829, 857 (Miss.1994) (appellant was precluded from raising issue on appeal, where “there was no objection to the submission of this aggravating circumstance”).

¶ 68. Procedural bar notwithstanding, and, alternatively, there was sufficient evidence in the record to instruct the jury on the “avoiding lawful arrest” aggravator. The standard for reviewing the sufficiency of the evidence to support an “avoiding lawful arrest” instruction is well-settled: [i]f there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killings to “cover their tracks” so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance. Under this construction the Court properly submits this aggravator to the jury if evidence existed from which the jury could reasonably infer that concealing the killer's identity, or covering the killer's tracks to avoid apprehension and arrest, was a substantial reason for the killing. Carr v. State, 655 So.2d 824, 853-54 (Miss.1995); See also Chase v. State, 645 So.2d 829, 856-58 (Miss.1994); Hansen v. State, 592 So.2d 114, 152-53 (Miss.1991), cert. denied, Hansen v. Mississippi, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992); Lanier v. State, 533 So.2d 473, 490 (Miss.1988); Leatherwood v. State, 435 So.2d at 651, Tokman, 435 So.2d at 671. Foster v. State, 687 So.2d 1124, 1140 (Miss.1996).

¶ 69. “Thus, it is this Court's role to inquire into whether there is any credible evidence upon which the jury could find the aggravating circumstance in question.” Carr, 655 So.2d at 854. “Each case must be decided on its own peculiar fact situation.” Brown v. State, 682 So.2d 340, 355 (Miss.1996). Basically, Woodward argues that there is no evidence in the record to indicate that he committed the crime to avoid lawful arrest or effect an escape from custody. Woodward cites the undisputed evidence that he stayed in Perry County the day of the murder and that, upon request, he voluntarily appeared at the Sheriff's Office and gave incriminating statements the next day.

¶ 70. Woodward neglects to mention the fact that he was stopped by an officer a few hours after the murder and did not confess at that time. Furthermore, after killing Crane, Woodward completed his work for the day-presumably to avoid suspicion. Later, Woodward allowed his truck to be searched, but did not mention that he had committed the crime. Therefore, Woodward's voluntary statements, after the authorities requested that he come to the Sheriff's Office, were not as forthcoming as Woodward submits.

¶ 71. Moreover, Woodward led the victim through the woods to a secluded area and left her there. He also threw the murder weapon in a creek. All of these facts could reasonably indicate that Woodward did not want to be arrested for his crimes. See generally Walker v. State, 671 So.2d 581, 611 (Miss.1995) (where victim was young, unclothed, unarmed, generally cooperative with her attacker, and in a secluded area, it could be reasonably inferred that the appellant was attempting to “avoid lawful arrest” when he killed her and burned her body).

¶ 72. Perhaps the most convincing evidence thatWoodward killed Crane to avoid arrest appears in his videotaped confession. After describing how he forced the victim from the road, ordered her in his truck at gunpoint, drove her to a secluded location, walked away from the road, sexually battered and raped the victim, Woodward stated the following in his videotaped confession: I didn't know what to do. I-I didn't know what was going on. I knew that I was in trouble already. And, uh, she bent down to get something and I whirled around, pulled the trigger, and ran. I didn't know if I had hit her, if I had missed her, or what. I got in my truck and I left. * * * I was so scared I didn't know what to do, and uh, I wanted out of this mess as-the quickest way possible. (emphasis added).

¶ 73. Thus, the evidence was more than sufficient to allow the jury to reasonably infer that Woodward killed Crane to avoid arrest. Therefore, even if Woodward's argument on this issue were not procedurally barred, it is without merit.

G. WHETHER THE SUPREME COURT CAN REWEIGH REMAINING AGGRAVATING CIRCUMSTANCES TO DETERMINE WHETHER THE DEATH SENTENCE WAS PROPER?

¶ 74. Woodward further argues that, because two of the aggravating circumstances contained in the jury instructions were not supported by the evidence, the case must be reversed. That is, Woodward contends that this Court cannot reweigh the remaining aggravator against possible mitigators, and, therefore, the case must be reversed and remanded for a second resentencing hearing.

¶ 75. Woodward's argument is partially correct. There has been great division among the members of the Court on this subject. However, this Court has consistently held for years that, where an aggravating circumstance is improperly placed before the jury, there will be no reweighing of aggravating and mitigating circumstances at the appellate level. This is true, despite legislative enactments allowing appellate reweighing. King v. State, 656 So.2d 1168, 1173 (Miss.1995) (considering 1994 amendments to Miss.Code Ann. § 99-19-105, which specifically allowed for appellate reweighing of aggravators and mitigators). “[T]he right to a jury determination of the penalty of death is a substantial substantive right long held in this [S]tate.” Id.

¶ 76. However, Woodward's argument assumes that the “heinous, atrocious, or cruel” aggravator and/or the “avoiding lawful arrest” aggravator were improperly given. This Court has already determined that the jury was properly instructed on these aggravating circumstances, therefore the issue of reweighing need not be considered.

H. WHETHER THE PAYMENT OF THE STATE'S WITNESSES IN EXCESS OF THE AMOUNT PERMITTED BY LAW CONSTITUTES PROSECUTORIAL MISCONDUCT THAT MANDATES REVERSAL?

¶ 77. Woodward contends that he was prejudiced by the payment of excessive witness fees to State's witnesses, including the victim's husband (Curtis Crane) and serologist (Larry Turner). Woodward cites Rule 3.4(b) of the Mississippi Rules of Professional Conduct, which prohibits an attorney from offering “an inducement to a witness that is prohibited by law”. The comment to this rule provides that “it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.”

¶ 78. Woodward also cites Miss.Code Ann. § 25-7-47, which provides in pertinent part: Witnesses in the county, circuit, and chancery courts shall receive one dollar and fifty cents per day and five cents for each mile going to and returning from the courthouse to their homes by the nearest route, and such tolls and ferriages as they may actually be obliged to pay; but mileage, toll, and ferriage shall be charged but once at each term of court, and a charge shall not be made for mileage except that traveled in this state. Miss.Code Ann. § 25-7-47 (1991).

¶ 79. With regard to Curtis Crane, the record reflects that the resentencing hearing was originally scheduled to have begun September 19, 1994. However, after voir dire, the trial judge declared a mistrial because the jury pool was not large enough to select an impartial jury. On December 6, 1994, the trial judge ordered that Curtis Crane, the victim's husband, be paid $400 ($200 for each of two days of missed work). The order was filed December 8, 1994.

¶ 80. The trial was then scheduled for January 30, 1995; however, on January 27, 1995, the trial was continued until September 12, 1995. Nonetheless, the trial judge ordered that Curtis Crane be paid for three days of missed work for his scheduled testimony January 30, 1995, through February 1, 1995. The total amount of payment ordered was $452.88, for twenty-four hours work at $18.87 per hour. The order was filed April 6, 1995.

¶ 81. The actual resentencing hearing sub judice began September 13, 1995. Woodward's post-trial motions were timely filed on September 26, 1995, and were denied on October 12, 1995. Thereafter, on November 1, 1995, the trial judge ordered payment to Curtis Crane in the amount of $1,400 “for reasonable and necessary expenses incurred for seven (7) days of missed work ... in the trial of this matter.”

¶ 82. Woodward argues that these payments were excessive. Specifically, Woodward cites the fact that Curtis Crane was paid on two occasions when he did not testify. Woodward claims that these payments were “especially troublesome” given the behavior of the victim's family at trial. Indeed, the trial judge did take care to separate the victim's family from the defendant's family. In addition, the trial was stopped at one point when a wadded piece of foil or gum wrapper was flung on the defense table (outside the presence of the jury).

¶ 83. The State claims that Woodward is procedurally barred from raising this issue, because he did not raise it before the trial court. However, Woodward claims that he did not receive notice of these motions, and only discovered that these payments were made in reviewing the record for appeal. However, the orders on the first two payments to Curtis Crane were in the record prior to the resentencing trial, even though the last payment to Curtis Crane was ordered after the post-trial motion in this case was filed. Woodward clearly had notice of the payment of witness fees. However, because Woodward did not timely object to the first two payments, he waived his right to object to the third payment. See generally Cole v. State, 666 So.2d 767, 773-74 (Miss.1995). Also, Woodward did not cross-examine Crane with regard to any such payments.

¶ 84. Alternatively, on the merits, however, Curtis Crane's original testimony did not differ from his testimony at the resentencing trial. Therefore, the State contends that “[a]ny allegation that Mr. Crane felt he had to testify for the State because he had been paid is totally without merit.” Indeed, it seems unlikely that the testimony of the victim's husband would be affected by the amount of the fee he was paid to testify. Furthermore, Curtis Crane's testimony was basically duplicative of that given by the victim's father.

¶ 85. Woodward also challenges the fees paid to Larry Turner (the serologist with the Mississippi Crime Laboratory who analyzed some of the evidence in this case). Turner had moved to California, and was flown back to Mississippi for the resentencing hearing. The trial judge ordered payment to Turner in the amount of $975 “for reasonable and necessary expenses incurred for testimony on September 15, 1995 through September 17, 1995 and for a rental car for the transportation of Larry Donnell Turner, an expert witness in the trial of this matter.”

¶ 86. Turner testified that he analyzed Crane's rape kit and found seminal fluid on the oral and internal vaginal swabs. There was not a sufficient fluid sample from the victim's mouth to determine blood type, but the fluid in the vagina matched Woodward's blood type. Turner also examined the victim's clothing. He did not find any semen on her slip, panties, or external vaginal swab. This testimony really added nothing to the State's case, given that the parties stipulated that the semen found in the victim's vagina belonged to Woodward, and, given that Woodward confessed that the victim performed fellatio on him.

¶ 87. Nonetheless, Woodward argues that his out-of-state witness (an aunt who flew in from Phoenix, Arizona) was not given the same compensation as Turner. Woodward argues that “[t]his disparity in treatment between the State and the defense ha[d] a subtle, but, nonetheless, prejudicial effect.” This Court has previously held that “there is no method by which the out-of-state witness can be paid and that the trial court was without authority to force a witness for the defense to leave a foreign state to testify in this state.” See Chandler v. State, 272 So.2d 641, 643 (Miss.1973). In Chandler, the defendant wished to subpoena his co-defendant; however, the same analysis applies for an out-of-state aunt. See Id.

¶ 88. After diligent search, this Court can find no authority for the amount of fees paid to Curtis and Turner. Regardless, the issue is procedurally barred and alternatively, considered on the merits, although the witnesses were improperly paid, Woodward has not demonstrated any resulting prejudice.

¶ 89. Of course, it is conceivable that excessive payments to witnesses could affect the outcome of a trial in some situations. However, in the case sub judice, there is no indication that the witnesses' testimony changed based on the payments they received. Furthermore, even if the witnesses' testimony were rejected altogether, it is clear that the same evidence would have been presented to the jury in other forms. Nonetheless, this Court urges trial judges to be extremely cautious in complying with the statutes regarding payment of witness fees in the future.

I. WHETHER, PURSUANT TO MISS. CODE ANN. § 99-19-105(3), THE DEATH SENTENCE IMPOSED IN THIS CASE WAS FREE FROM THE INFLUENCE OF PASSION, PREJUDICE OR ANY OTHER ARBITRARY FACTOR; SUPPORTED BY THE EVIDENCE; AND PROPORTIONATE TO THE PENALTY IMPOSED IN SIMILAR CASES?

¶ 90. Miss.Code Ann. § 99-19-105(3) (Supp.1993) requires: (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; and (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. In accordance with this section, this Court must review the record in this case and compare it with other capital murder cases in which this Court has entered judgment since Jackson v. State, 337 So.2d 1242 (Miss.1976). See Irving v. State, 361 So.2d 1360, 1370-1371 (Miss.1978). Carr v. State, 655 So.2d 824, 857 (Miss.1995).

¶ 91. After thorough consideration, this Court finds that the death sentence in this case was not influenced by passion, prejudice, or any other arbitrary factor. Furthermore, the aggravating circumstances found to exist by the jury were supported by the evidence. In addition, this Court has already held that the death sentence in this case was proportionate. Woodward I, 533 So.2d at 435. Therefore, reversal is not warranted under Miss.Code Ann. § 99-19-105(3).

IV. CONCLUSION

¶ 92. The issues raised by Woodward on appeal are without merit. The death sentence imposed by the trial court complies with Miss.Code Ann. § 99-19-105(3). Accordingly, the imposition of the death sentence in this case is affirmed.

¶ 93. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7)(1972) AND M.R.A.P. 41(a).

DAN LEE, C.J., BANKS, JAMES L. ROBERTS, Jr., SMITH AND MILLS, JJ., CONCUR. SULLIVAN, P.J., CONCURS IN RESULT ONLY. PITTMAN and McRAE, JJ., NOT PARTICIPATING.

Woodward v. Epps, 580 F.3d 318 (5th Cir. 2009). (Habeas)

Background: Following affirmance of his conviction for, inter alia, capital murder, and of his sentence of death, 726 So.2d 524, and denial of state post-conviction relief, 843 So.2d 1, state inmate's petition for a writ of habeas corpus was denied by the United States District Court for the Southern District of Mississippi, David C. Bramlette, III, J., Certificates of appealability (COA) were granted.

Holdings: The Court of Appeals, Carl E. Stewart, Circuit Judge, held that: (1) state court reasonably concluded that defense counsel were not ineffective in conceding defendant's guilt to simple murder in an attempt to avoid the death penalty; (2) state court's finding that trial court's order allowing defendant to be examined at a state hospital, rather than allocating funds to hire an independent psychiatric expert, was not contrary to, or an unreasonable application of, clearly established federal law; (3) state appellate court's finding that the State met its burden, at second step of the Batson analysis, by offering race-neutral reasons for its peremptory challenges to black jurors, was not based on an unreasonable determination of the facts; and (4) state appellate court's finding that black jurors were not peremptorily stricken for a racially motivated reason, was not based on an unreasonable determination of the facts in light of the evidence presented. Affirmed.

CARL E. STEWART, Circuit Judge:

Paul Woodward was convicted of capital murder and sentenced to death. After exhausting state court proceedings, Woodward filed a petition for habeas relief in the federal district court. The district court denied the requested relief, but it issued a certificate of appealability (“COA”) as to three issues: whether Woodward's constitutional rights were violated (i) when his trial counsel conceded guilt to the jury without first securing Woodward's consent; (ii) by his attorney's failure to object to the State's use of other bad acts in its closing arguments; and (iii) by the trial court's refusal to provide Woodward with funds to secure an independent psychiatrist to (a) help prepare a mitigation defense and (b) help prepare defense counsel for cross-examination of the state's mental health experts. The district court denied, but this court granted, Woodward's request for a COA on a fourth issue, whether the State's use of peremptory challenges at Woodward's resentencing violated his Fourteenth Amendment right to equal protection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).FN1 For the foregoing reasons, we affirm.

FN1. Woodward also appeals the district court's denial of his request for funds to retain an expert under 21 U.S.C. § 848. As we discuss infra Part III.C., we will also consider this claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

On appeal, Woodward does not dispute the facts of the crime as recounted by the Mississippi Supreme Court in Woodward v. State, 843 So.2d 1 (Miss.2003) (“ Woodward IV”):

Around noon on July 23, 1986, Rhonda Crane, age twenty-four, was traveling on Mississippi Highway 29 south of New Augusta in Perry County, Mississippi to join her parents on a camping trip. A white male driving a white log truck forced her car to stop in the middle of the road. The white male then exited the truck with a pistol in his hand and forced Crane to get into his truck. The man then drove the victim to an isolated area, forced her out of his truck and into the woods at gunpoint and forced her to have sexual relations with him. Rhonda Crane was shot in the back of her head and died.

Crane's automobile was left on the highway with the engine running, the driver's door open and her purse on the car seat. A motorist traveling in a vehicle on the same highway saw a white colored, unloaded, logging truck moving away from the Crane vehicle, and notified the authorities. Additionally, a housewife residing on a bluff along the highway at the location of the Crane car noted a logging truck with a white cab stop in front of her driveway. A white male exited and walked toward the back of his truck and returned with a blonde haired woman wearing yellow clothing. As he held her by her arm, the male yelled sufficiently loud for the housewife to hear the words “get in, get in,” and forced the blonde woman into the driver's door of the truck and then drove off. The housewife investigated the scene on the highway in front of her house, discovered the abandoned Crane car, and notified the authorities.

Law enforcement officers began an investigation to locate Crane. The officers discovered that Paul Everette Woodward unloaded logs at a pulp mill and departed the yard at 11:36 a.m. in a white Mack log truck. Woodward arrived at his wood yard at approximately 12:45 to 1:00 p.m. The yard manager noted that he was late arriving at the yard and was wet from sweating. A drive from the mill to the wood yard takes approximately thirty minutes. A sheriff's deputy stopped Woodward, who was driving a white Mack logging truck, around 2:00 p.m. on the afternoon of July 23, to ask if he had seen anything that would assist in the investigation of Rhonda Crane's disappearance. Woodward replied that he had not seen anything. Through the investigation, it was ascertained that Woodward was the only driver of a white logging truck operating at the nearby timber yards on that date. On the following day, Crane's body was located in the nearby wooded area by her father and a friend.

Woodward was arrested, and ultimately he made both written and videotaped confessions. Woodward also confessed to his employer over the telephone. Id. at 4-5. Woodward was charged with kidnapping, oral sexual battery, and capital murder with an underlying crime of rape. He was tried before a jury and convicted of all counts. In a separate sentencing hearing, the jury sentenced Woodward to death for the capital murder conviction.FN2 Woodward appealed, raising numerous issues regarding the guilt-innocence phase and the sentencing phase of the trial. The Mississippi Supreme Court affirmed the conviction and sentence. Woodward v. State, 533 So.2d 418 (Miss.1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1767, 104 L.Ed.2d 202 (1989), reh'g denied, 490 U.S. 1117, 109 S.Ct. 3179, 104 L.Ed.2d 1041 (1989) (“ Woodward I”). FN2. He was also sentenced to two thirty-year sentences on the kidnapping and oral sexual battery charges, to run consecutively.

Woodward then filed his first application for post-conviction relief to the Mississippi Supreme Court, and the court vacated his death sentence and remanded for a new sentencing. See Woodward v. State, 635 So.2d 805 (Miss.1993) (“ Woodward II”). On remand, the court again imposed the death sentence, which was affirmed on direct appeal. Woodward v. State, 726 So.2d 524 (Miss.1997), cert. denied 526 U.S. 1041, 119 S.Ct. 1338, 143 L.Ed.2d 502 (1999) (“ Woodward III”). Woodward filed another petition for post-conviction relief, which the Mississippi Supreme Court denied. Woodward IV, 843 So.2d at 21.

Woodward filed his federal habeas petition in March 2004, and the district court denied relief. Woodward sought a COA on four issues, relating to (1) his counsel's concession of guilt without securing his consent; (2) his counsel's failure to object to the introduction of other bad acts; (3) the trial court's refusal to fund an independent psychiatrist on re-sentencing; and (4) an alleged violation of Batson, based on the State's use of peremptory challenges to strike every black juror. The district court granted a COA on issues 1, 2, and 3, and denied a COA for issue 4; and we granted a COA for that issue: whether Woodward was entitled to habeas relief under Batson.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) controls our review in this case. See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wood v. Quarterman, 491 F.3d 196, 201 (5th Cir.2007). 28 U.S.C. § 2254(d) prohibits a federal court from granting a petition for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication (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)(1)-(2); see Penry, 532 U.S. at 792, 121 S.Ct. 1910. The state court's decision is contrary to the Supreme Court's clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different result].” Penry, 532 U.S. at 792, 121 S.Ct. 1910 (internal quotations and citations omitted). The state court's decision is an unreasonable application of the Supreme Court's clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. (internal quotations and citations omitted).

“We must presume that the state court's factual findings are correct unless [Woodward] meets his burden of rebutting that presumption by clear and convincing evidence.” Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir.2009) (citing 28 U.S.C. § 2254(e)(1)). “In reviewing the district court's application of § 2254(d) to the state court decision, the district court's findings of fact are reviewed for clear error; [the district court's] conclusions of law, de novo.” Pondexter v. Quarterman, 537 F.3d 511, 519 (5th Cir.2008) (citing Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.2002)).

III. DISCUSSION
A. Ineffective Assistance of Counsel: Concession of Guilt

“In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend VI. Under the well-established Strickland test, Woodward must show (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong, “[t]o establish deficient performance, a petitioner must demonstrate that counsel's representation ‘fell below an objective standard of reasonableness.’ ” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted). Counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

“[T]o establish prejudice, a 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.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (citation omitted). There are, however, “some egregious circumstances ... ‘so likely to prejudice the accused that the cost of litigating their effect in a particular trial is unjustified.’ ” Burdine v. Johnson, 262 F.3d 336, 344 (5th Cir.2001) (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). Prejudice is presumed where (1) there is a complete denial of counsel, or (2) counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. Cronic, 466 U.S. at 659, 104 S.Ct. 2039.

During the guilt-innocence phase of trial, Woodward's counsel divided responsibility for the closing arguments. First, Jeff Bradley argued reasonable doubt as to each of the crimes upon which the jury was instructed. Next, Woodward's other attorney, Rex Jones, concluded the defense's closing arguments. Seconds into his argument, Jones made the following statement to the jury:

I think-I'm going to say something, I've never lied to Juries and I'm not going to start now, I think Paul Woodward is guilty of kidnapping Rhonda Crane, and I think Paul Woodward is guilty of the murder of Rhonda Crane. Now, we do have a problem, I think legally, in regard to the charges he's guilty of. The Court has instructed you that you've got to take the version of the Defendant as true if and unless it is contradicted by eyewitnesses or by other evidence. I don't know what happened out there that day, and I'm not going to stand here and try to convince you one way or the other. You've heard the same thing I've heard.

Almost immediately, the State objected that “the defense attorney has just interjected that the Defendant is guilty of the charge of kidnapping and murder.” The State requested that the court give Woodward an opportunity to express whether he was in agreement with his counsel's tactics. The following exchange ensued: COURT: Well, I certainly feel like this Defendant has been afforded a fair trial. Do you have any problems with this proceeding, Mr. Woodward? WOODWARD: No, sir. COURT: You've had a fair trial, hadn't you? WOODWARD: Yes, sir. COURT: All right. Thank you. MR. WHITE:FN3 Does he understand what- FN3. Glenn White was counsel for the State. COURT: Do you understand what Mr. Jones said? WOODWARD: Yes, sir. COURT: All right. MR. WHITE: Does he agree with it? MR. BRADLEY: Your honor, he said that- MR. WHITE: I ask that that be noted in the record that he is in agreement with the trial proceedings. COURT: All right. Let that so be noted.

Jones then continued his summation. In addressing the rape charge, he stated: The thing that is troubling me in regards to the rape-I'm not saying that he raped her at some point-he said in the statement that it wasn't, but I'm not saying he didn't, but the thing that's troubling to me, at the time of the killing, at the time of the killing, she was fully clothed, no clothing was torn, and I realize you say to me-I know what they're going to say, “Well you know, if you had a gun on you, you would submit” and certainly I would and I don't deny that, but I don't know at what point in time that occurred .... So, what I am trying to say is that while I think that maybe what he did is turned and ran and fired, and that's the only reason I say that, and if he killed her in that regard, then I think the charge would be murder.

The case proceeded to the jury, which reached a guilty verdict, stating that “[w]e, the jury, find the Defendant, Paul Everette Woodward, guilty of Capital Murder.” The capital murder conviction was based on the jury's finding that “the capital murder of Rhonda Crane was committed while Paul Woodward was engaged in the commission of rape.” The State argues that Woodward's counsel's strategy was to admit that Woodward kidnapped and murdered the victim, while attacking the proof of the underlying rape in an attempt to get the jury to settle on a verdict of simple murder and kidnapping, without a finding of capital murder. Woodward contends that the concession of guilt resulted in the complete breakdown of the adversarial process and, thus, prejudice should be presumed.

Woodward presented this claim to the Mississippi Supreme Court in his petition for post-conviction relief from his original trial. Woodward II, 635 So.2d at 805. The court analyzed Woodward's claim under the two-prong Strickland analysis. It noted that it had “previously faced similar allegations in other cases, and found that the attorney's strategic decision to admit to a lesser crime than that charged in the indictment did not amount to deficient performance.” Id. at 808 (citing Wiley v. State, 517 So.2d 1373 (Miss.1987) and Faraga v. State, 514 So.2d 295 (Miss.1987)). The court found that even assuming that Woodward's counsel was deficient in the guilt phase, Woodward did not show that he satisfied the prejudice prong of Strickland because “[t]he proof in this case does not present reasonable probability sufficient to ‘undermine confidence in the outcome.’ ” Id. at 809 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

Woodward urges this court to apply Cronic's presumption of prejudice. “An attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy.” Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Here, however, the trial judge afforded Woodward an opportunity to express disagreement with his counsel's tactics on the record, which he did not. Had Woodward expressed disagreement with his counsel's strategy, this might present a closer question as to whether Cronic's presumption of prejudice applies. Cf. id. (acknowledging that defense counsel “was obliged to, and in fact several times did, explain his proposed trial strategy” to defendant, but given defendant's “constant resistance to answering inquires,” defense counsel “was not additionally required to gain express consent before conceding ... guilt”). But see United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir.2005) (refusing to apply Cronic's presumption of prejudice where counsel conceded guilt without consulting defendant, and denying relief because defendant failed to establish prejudice under Strickland). We find that Strickland's standard applies here.

In this case, we assume that Woodward's counsel was deficient in failing to secure Woodward's consent to the defense strategy. Nonetheless, Woodward cannot establish that the state court's findings were unreasonable in light of the evidence presented. 28 U.S.C. § 2254(d). The evidence of guilt was overwhelming, as the Mississippi Supreme Court recounted:

In addition to separate written and videotaped confessions, which were properly admitted, the State presented a mountain of evidence. A housewife near the scene of the crime saw a white logging truck stopped in front of her house and a white man forcing a blonde woman in a yellow dress into his truck. After the truck drove off, the housewife found the victim's car on the highway, with the door open and the motor still running. A motorist reported to law enforcement officers that he saw a white logging truck moving away from a car with an open door on the highway. Woodward unquestionably was in the area that day, driving his white logging truck. His white logging truck was the only white logging truck at the logging mill. Law enforcement found a fountain pen at the crime scene matching pens found in Woodward's truck. Tests of Woodward's blood showed that he could not be excluded as the perpetrator. Woodward II, 635 So.2d at 809. “Attorneys representing capital defendants face daunting challenges in developing trial strategies, not the least because the defendant's guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous.” Nixon, 543 U.S. at 191, 125 S.Ct. 551 (citation omitted). In this case, involving written and video confessions and corroborating evidence, “avoiding execution [may have been] the best and only realistic result possible.” Id. (citation omitted); accord McNeill v. Polk, 476 F.3d 206, 217-18 (4th Cir.2007) (rejecting, under Strickland, defendant's claim of ineffective assistance where counsel conceded defendant's guilt without consent); Stenson v. Lambert, 504 F.3d 873, 891 (9th Cir.2007) (“When the evidence against a defendant in a capital case is overwhelming and counsel concedes guilt in an effort to avoid the death penalty, ‘counsel cannot be deemed ineffective for attempting to impress the jury with his candor.’ ”) (citation omitted). Woodward is not entitled to habeas relief on this ground.

B. Ineffective Assistance of Counsel: Evidence of Bad Acts

Woodward argues that during resentencing, his attorneys were constitutionally ineffective for “opening the door” to allow in evidence of Woodward's prior bad acts and for failing to object to the State's invocation of prior bad acts in its closing statement. During resentencing, defense counsel put Woodward's father on the stand. He testified that Woodward stole a car as a young Marine so he could return home for his grandfather's funeral and that Woodward had been arrested in Louisiana for attempted murder. Defense counsel also called Dr. Thurman, a private clinical psychologist retained by Woodward's family, to testify. Included in Dr. Thurman's report, which was entered into the record, was a description of Woodward's past convictions and arrests, including the attempted murder charge from Louisiana, the stolen car conviction, as well as allegedly unfounded charges of misdemeanor rape and unlawful oral sex. The prosecution used the prior arrests and bad acts to impeach defense witnesses. In addition, during his closing argument, the prosecutor commented on Woodward's history of bad acts, and the defense did not object to this argument.

Woodward contends that the admission of the evidence of bad acts was the reason the jury did not list “lack of serious criminal history” as a mitigating factor in its verdict. The state court found that Woodward's counsel presented the bad acts evidence in the context that these acts were examples of Woodward's long battle with mental illness. It found that his counsel made strategic choices regarding the mitigation case, showing sound trial strategy rather than deficient performance. The state court also found that Woodward had not shown any prejudice to his defense.

The district court agreed with this assessment. It found that because the prosecution would have been able to introduce the bad acts because they were referred to in Dr. Thurman's report, the defense counsel were not objectively unreasonable for preemptively introducing the evidence in order to best fit it into their trial strategy. Moreover, the district court found Woodward could not demonstrate that he had been prejudiced by counsel's alleged deficiency because the balancing test which the jury was to employ to determine whether Woodward should receive the death penalty was unaltered by the introduction of the bad acts evidence.

The question under the first Strickland prong is whether Woodward demonstrated “that counsel's representation fell below an objective standard of reasonableness.” Wiggins, 539 U.S. at 521, 123 S.Ct. 2527. There is a “strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance.” Romero v. Lynaugh, 884 F.2d 871, 879 (5th Cir.1989) (internal quotation and citation omitted). “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir.2005) (quoting United States v. Jones, 287 F.3d 325, 331 (5th Cir.2002)).

Woodward argues that the bad act evidence in question could not have been admitted by the prosecution and therefore, it was not a reasonable trial strategy to open the door to it and to fail to object to the State's use of the evidence during closing arguments. Mississippi Rule of Evidence 705 states: The expert may testify in terms of opinion or inferences and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or date on cross-examination. Miss. R. Evid. 705. The Mississippi Supreme Court, in reviewing this claim, held that: “[S]ince Woodward's prior criminal history was included in Dr. Thurman's report as part of the information which formed the basis for his opinions, Woodward's trial counsel could not have been successful in any objection raised regarding the contents of the report.” Woodward IV, 843 So.2d at 9.FN4 Therefore, Woodward's counsel was not deficient in preemptively introducing the evidence or in failing to object to the evidence during closing arguments. FN4. As discussed in depth in the district court's opinion, there is some inconsistency between this holding and the Mississippi Supreme Court's prior treatment of this matter. Despite this inconsistency, Woodward IV is clear that under Mississippi law, the prosecution would have been entitled to introduce these prior bad acts.

Woodward also argues that both the district court and the state court failed to take into account that “regardless of Mississippi evidentiary law, the way in which the prosecution was permitted to lead the jury to return a death sentence based on inaccurate or unreliable information runs afoul of the Eighth Amendment.” Woodward cites to three Supreme Court cases in support of this argument: Zant v. Stephens, 462 U.S. 862, 887, nn. 23, 24, 103 S.Ct. 2733 (1983), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Importantly, Woodward presents no evidence that Dr. Thurman's report actually contained “inaccurate or unreliable” information. Woodward reported to the psychologist during his evaluation that he committed those crimes, and beyond bare allegations, he presents no evidence that his statements were untrue or otherwise unreliable.

Even assuming that Woodward's counsel was deficient, both the Mississippi Supreme Court and the district court found that Woodward failed to demonstrate that he was prejudiced by such deficiency. In the context of capital resentencing, the standard is “whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Woodward argues that he was prejudiced because once the prosecutor was able to delve into Woodward's bad acts, he was able to subvert the mitigating factor “lack of prior criminal history” into an unenumerated aggravating factor.

Juries are presumed to follow the law. See United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.1995). Under Mississippi law, a death sentence cannot be based on non-statutory aggravating factors. See Miss.Code Ann. § 99-19-101. In accordance with this rule, the jury was instructed to recommend the death sentence only if it found that the presence of the statutorily-provided aggravating factors outweighed the presence of the statutorily-provided mitigating factors. Here, the jury listed three aggravating factors: (1) that the capital murder occurred during the commission of rape; (2) that the murder was particularly heinous; and (3) that the offense was committed for the purpose of avoiding arrest or effecting escape from custody. Evidence of Woodward's alleged prior bad acts would have no bearing on the jury's findings regarding these three aggravating factors. Thus, even assuming arguendo that Woodward's counsel was deficient, the state court's findings are not unreasonable in light of the evidence presented. Woodward is not entitled to habeas relief on this claim.

C. Request for Independent Psychiatric Expert

Woodward's counsel made efforts to obtain an independent psychiatric evaluation at the first trial in 1987, and again at resentencing in 1995. They sought assistance to have Woodward examined by a psychiatrist regarding his mental and emotional state and to determine Woodward's competency at the time of the crime, sought evaluation by a psychiatrist versed in sexual psychopathic behavior, and sought assistance of a mental health expert to assist Woodward in his defense. They also argued that a psychiatric evaluation would allow the defense team to assess the presence of mitigating circumstances. At the motion hearing, the trial court suggested that Woodward be examined by Whitfield State Hospital (“Whitfield”). Defense counsel argued that this would be insufficient and requested funds to hire their own psychiatric expert. The trial court denied their requests and ordered Woodward to be taken to Whitfield to receive a psychiatric examination. The order required the hospital to report its findings to defense counsel, the prosecutors, and the court. Later, after Woodward's family paid for an initial consultation with Dr. Thurman, Woodward filed a motion to obtain additional funds to secure Dr. Thurman's attendance at trial and for additional evaluation. This request was granted.

After remand, Woodward was represented by Attorneys Rushing and Adelman at his 1995 resentencing. Rushing and Adelman sought, before the resentencing, funds to hire an independent psychiatrist. The funding motion was supplemented with two affidavits, one from Dr. Thurman and one from Dr. Ritter, a psychiatrist willing to assist defense counsel. Dr. Thurman's affidavit stated that [g]iven the severity of Mr. Woodward's emotional problems, I believe that his request for examination and assistance by a forensic psychiatrist is reasonably necessary to his defense. Such an examination would complement my own interviews and provide a different perspective regarding his emotional problems. I believe such further examination by a medically licensed psychiatrist would not be cumulative and would contribute substantially and significantly to Mr. Woodward's defense.

The court granted and denied the motions in part. It sustained the part of the defense motion requesting Dr. Thurman's continued assistance, but denied the part of the motion requesting funds for Ritter. The court also ordered that “the defendant be allowed evaluation at [Whitfield] if he so desires psychiatric examination.” Woodward was not examined at Whitfield.

Woodward argues that the Mississippi Supreme Court's decision to deny funds for an independent psychiatrist was an unreasonable application of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). He contends that the opportunity to be examined by a psychiatrist at the state mental hospital was insufficient and that his rights were violated when he was not provided with an independent psychiatrist at resentencing. This issue was presented to, and rejected by, the Mississippi Supreme Court. Thus, as discussed above, for Woodward to be entitled to relief he must demonstrate that the Mississippi Supreme Court's decision was “contrary to, or an unreasonable application of, clearly established federal law” or was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d).

In Ake, the Supreme Court held that, upon request, a trial court must appoint a psychiatrist for an indigent defendant if a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial and, in the context of a capital sentencing proceeding, when the state presents psychiatric evidence of the defendant's future dangerousness. Ake, 470 U.S. at 82-83, 105 S.Ct. 1087. The Court explained that “when the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense.” Id. at 80, 105 S.Ct. 1087.

The state court found Woodward's rights were not violated because the order allowing Woodward to be examined at Whitfield satisfied Ake. Under Ake, a criminal defendant is not entitled “to choose a psychiatrist of his personal liking or to receive funds to hire his own.” Woodward III, 726 So.2d at 529 (citing Ake, 470 U.S. at 83, 105 S.Ct. 1087). Rather, the defendant must be afforded access to a “competent psychiatrist.” Id. The district court agreed, holding that the court-authorized psychiatrists that would have performed his evaluation were “neutral,” and thus satisfied Ake's requirements. In accord with this circuit's interpretation of Ake, we also agree.

In Granviel v. Lynaugh, 881 F.2d 185, 191 (5th Cir.1989), an indigent defendant challenged Texas's practice of allowing a trial judge to appoint an expert to evaluate the defendant and provide a report to both the prosecution and the defense. Relying on Ake, we upheld the procedures, stating: Granviel's ability to uncover the truth concerning his sanity is not prejudiced by a court-appointed, neutral expert. Availability of a neutral expert provides defendants with “the raw materials integral to the building of an effective defense.” Ake, 105 S.Ct. at 1093. The state is not required to permit defendants to shop around for a favorable expert .... He has no right to the appointment of a psychiatrist who will reach biased or only favorable conclusions. Granviel, 881 F.2d at 192.FN5 Instead, the Court's “concern [was] that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and ... [it left] to the State the decision on how to implement this right.” Ake, 470 U.S. at 83, 105 S.Ct. 1087; accord Smith v. Mitchell, 348 F.3d 177, 208 (6th Cir.2003) (holding that Ake does not entitle a defendant to an independent psychiatrist of his choosing, only a competent psychiatrist). But see Starr v. Lockhart, 23 F.3d 1280, 1290-91 (8th Cir.1994) (stating that Ake “expressly disavows” the theory that due process is satisfied by the appointment of a neutral expert); Smith v. McCormick, 914 F.2d 1153, 1158-59 (9th Cir.1990) (“Under Ake, evaluation by a ‘neutral’ court psychiatrist does not satisfy due process .... [The defendant] was entitled to his own competent psychiatric expert.”); United States v. Sloan, 776 F.2d 926, 929 (10th Cir.1985) (finding that a state's duty under Ake “cannot be satisfied with the appointment of an expert who ultimately testifies contrary to the defense on the issue of competence”).

FN5. The Supreme Court denied certiorari in Granviel v. Texas, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990). Justices Marshall and Brennan dissented from the denial of certiorari, arguing that the Texas procedure is unconstitutional because Ake was “directed at providing a defendant with the tools necessary to present an effective defense within the context of our adversarial system, in which each party marshals evidence favorable to its side and aggressively challenges the evidence presented by the other side.” Id. at 964, 110 S.Ct. 2577 (Marshall, J., dissenting). The dissent argued that Texas's provision of a “disinterested” expert does not satisfy Ake, because the function of the psychiatrist is to assist the defendant in preparing and presenting his defense. This position has not been adopted by the Supreme Court, and therefore, AEDPA's limitations apply.

Ake does not clearly provide a constitutional right to an “independent” psychiatrist. Given the lack of a clear Supreme Court holding that a defendant is entitled to independent psychiatric assistance and the different circuit interpretations of Ake on this point, the decision of the Mississippi Supreme Court was not “contrary to” or an “unreasonable application of” clearly established federal law. See Williams v. Taylor, 529 U.S. 362, 381, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (relief precluded if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner).

It is undisputed that Woodward refused to be examined at Whitfield for the resentencing. Woodward therefore does not argue that the examination provided for him was inadequate; rather, he argues that it would have been inadequate. In support, he points to his previous Whitfield examination, obtained in 1987. He argues that this examination contained grave deficiencies, including that no tests were given to evaluate the possibility of organic brain damage. However, Whitfield limited the scope of the 1987 examination to establish whether Woodward was competent to stand trial and whether he was capable of distinguishing right from wrong at the time of the crime. Given the different scope of the resentencing proceedings, it is entirely possible that the Whitfield examination for purposes of resentencing would have been different in nature and may have been more focused on identifying and developing other mitigating evidence.FN6 Woodward provides no evidence establishing that the hospital would not have provided the tests or was unable to provide the tests. Woodward therefore is not entitled to habeas relief on this claim.

FN6. Alternatively, and as the district court stated, “[h]ad Woodward gone to the State Hospital for another evaluation, he may have actually been supplied with evidence to support his theory that the psychiatrists there were predisposed to favor the State's position.”

D. District Court's Denial of Woodward's § 848 Request for Funding

In the district court, Woodward applied for expert funds pursuant to 21 U.S.C. § 848(q)(4) and (q)(9),FN7 contending that the assistance of a psychiatrist was needed to determine whether, at the resentencing, a comprehensive forensic evaluation would have revealed mitigating factors for defense counsel to present at the resentencing. The district court denied the motion, finding that “Woodward's application is not clear as to why the evaluations of the state hospital and Dr. Thurman did not comply with Ake.” The district court therefore concluded that Woodward had not established that granting him the funds to retain Dr. Summers was “reasonably necessary” to pursue his habeas petition.FN8

FN7. This provision was repealed by Public Law 109-77, 120 Stat. 231, Title II, Sec. 222 (March 9, 2006). Such funding is now governed by 18 U.S.C. § 3599(f) and (g)(2). FN8. Although Woodward did not request a COA on this claim, a COA is not necessary to appeal the denial of funds for expert assistance. See Smith v. Dretke, 422 F.3d 269, 288 (5th Cir.2005).

The State argues that this court lacks jurisdiction over this claim because Woodward failed to include the order denying expert assistance in his notice of appeal. Woodward argues that the interim order denying funding merged into the final judgment; therefore, his notice of the appeal of the final judgment also noticed the appeal of the order denying funding. It is undisputed that Woodward's notice of appeal does not specifically reference the order; instead it states that Woodward “now provides notice of his appeal ... from the final judgment entered in this action on August 3, 2006.”

A notice of appeal is required to “designate the judgment, order, or part thereof being appealed.” Fed. R.App. P. 3(c)(1)(B). The general rule is that “[w]here the appellant notices the appeal of a specified judgment only or a part thereof ... this court has no jurisdiction to review any other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.” Lockett v. Anderson, 230 F.3d 695, 699 (5th Cir.2000) (quoting Capital Parks, Inc. v. Se. Advert. & Sales Sys., Inc., 30 F.3d 627, 630 (5th Cir.1994)). However, “[a]n appeal from a final judgment preserves all prior orders intertwined with the final judgment.” New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir.1998) (internal quotation and citation omitted).

An appellate court's consideration of the denial of § 848 funding will often implicate the merits of a petitioner's habeas claim. See Smith, 422 F.3d at 288. Even if there was a mistake in designating the judgment, a mistake in designating orders to be appealed should not bar review “if the intent to appeal a particular judgment can be fairly inferred, and if the appellee is not prejudiced or misled by the mistake.” Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir.1991) (citation omitted). Woodward's intent to appeal this issue is clear from an examination of Woodward's request for a COA in the district court and his opening appellate brief, both of which explicitly reference the § 848 denial. See Deshotel, 142 F.3d at 884. Also, the State has not demonstrated that it was in any way prejudiced by Woodward's failure to designate the § 848 denial in his notice of appeal. Id.

Pursuant to 21 U.S.C. § 848(q)(9), a district judge, in a capital case, “upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant,” may authorize funding for such services. Foster v. Johnson, 293 F.3d 766, 775 n. 8 (5th Cir.2002). We review for an abuse of discretion the denial of § 848 funding. Smith, 422 F.3d at 288. The denial of such funding has been upheld “when a petitioner has (a) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought after assistance would only supplement prior evidence.” Id. (citations omitted). In light of our holding on the merits of Woodward's Ake claim, we hold that the district court did not abuse its discretion in denying the funding request.

E. Batson Claim

The Supreme Court has made clear that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from striking prospective jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Moody v. Quarterman, 476 F.3d 260, 266 (5th Cir.2007). In Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), the Supreme Court explained some of the effects of racial discrimination in jury selection:

[P]rosecutors drawing racial lines in picking juries establish state-sponsored group stereotypes rooted in, and reflective of, historical prejudice .... When the government's choice of jurors is tainted with racial bias, that overt wrong casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial. That is, the very integrity of the courts is jeopardized when a prosecutor's discrimination invites cynicism respecting the jury's neutrality, and undermines public confidence in adjudication[.] So, for more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause. Miller-El, 545 U.S. at 237-38, 125 S.Ct. 2317 (internal citations, quotations, and alterations omitted). “[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994)).

In Batson, the Court delineated a three-step analysis for evaluation of a defendant's claim that a prosecutor used a peremptory strike in a racially discriminatory manner: (1) a defendant must make a prima facie showing that the prosecutor exercised his peremptory challenges on the basis of race; (2) the burden then shifts to the prosecutor to articulate a race-neutral reason for striking the juror in question; and (3) the trial court must determine whether the defendant carried his burden of proving purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712); Moody, 476 F.3d at 266-67. This analysis “permits prompt rulings on objections to peremptory challenges without substantial disruption to the jury selection process.” Hernandez, 500 U.S. at 359, 111 S.Ct. 1859. The ultimate burden of persuasion lies with the defendant. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

Upon remand, the trial court conducted jury selection for Woodward's resentencing. The State peremptorily challenged six jurors, including three black members of the venire panel. At this point, Woodward raised a claim under Batson. The court requested that the State offer reasons for striking the three black jurors, numbers 7, 12, and 22, to which the following colloquy ensued:

MR. WHITE: If it please the Court, the State's reasons on No. 7[,] [Ms.] Proctor, she is unemployed and on a previous case was unable to reach a verdict. Juror No. 12, [Ms.] McAbree, was unresponsive. Mr. Klein and Mr. Callahan both indicated to me that she was very hostile when the State was on voir dire and open to the defense. Further that her relative works in Leakesville with the prison system and we struck her on that basis. We didn't want her to have any affiliations with that .... ... [Ms.] Steele [Juror No. 22] ... That's the lady with the orange hair that gave unresponsive answers. COURT: And that's the one that you proffered for cause but the Court did not allow. MR. ADELMAN: But as far as Proctor goes, I'd say that the fact that she was unable to reach a verdict in some prior jury is not a racially neutral reason. It's a non-race and it's an irrelevant reason. MR. WHITE: It doesn't have to be a relevant reason as long as it's race neutral. COURT: Are there others? MR. ADELMAN: McAbree, No. 12. He said something about that she was hostile. I remember her as being very cooperative. MR. WHITE: That's exactly what we're saying, she was cooperative with you. MR. ADELMAN: No, she was cooperative with everybody. I don't remember her being hostile. COURT: The Court is of the opinion that the strikes were not racially motivated and was not being done to constitute members of a certain race on the jury panel .... Woodward then offered his strikes. During the next series of strikes, the State struck four additional jurors, among these jurors was one black juror, Juror 56. Woodward objected, stating that “[t]hey struck the only black in that group, who was [Ms.] Griffin. They have now struck every black available.” The State responded: MR. WHITE: ... [Ms.] Griffin on S-10. MR. ADELMAN: She's black. MR. WHITE: Yes. We talked to Jerry Gardner. She is related to another potential juror, No. 67, on the panel, but her husband has had law enforcement problems at a trailer park, according to Jerry Gardner. And we struck her on that basis. We thought there might be some empathy with that particular case. She lives in the Sand Ridge Trailer Park here in New Augusta.

The trial court denied the objection and struck her from the panel. Two more series of strikes followed, and the State struck Ms. Williams, Juror 67, who is black. The State offered as an explanation the fact that she was a psychology major and that they did not have a written response from her. The trial court ruled that the strike was not made for a racially motivated reason, and struck Ms. Williams from the panel.

The court then moved to the selection of the alternates. Woodward struck the first alternate, and the State struck the next alternate, Juror 72, who is black. The State said that its strike was based on his response to the rape question, as well as the fact that his brother-in-law is a convicted felon. The defense then stated: “For the record, we want to note that [Juror 72] is black. They have now struck every black juror.” As a result of these challenges, every black person was removed from the jury panel, and the jury that was eventually empaneled was composed entirely of white members.

At the resentencing, the State did not dispute whether Woodward made a prima facie showing that the State exercised its peremptory challenges on the basis of race, and we need not address the first prong of the Batson analysis. Hernandez, 500 U.S. at 359, 111 S.Ct. 1859 (“Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”). For the second step of the analysis, a prosecutor is not allowed to merely deny that he did not have a discriminatory motive; he must provide a specific explanation that is clear and reasonable. Elem, 514 U.S. at 768, 115 S.Ct. 1769. The second step, however, “does not demand an explanation that is persuasive, or even plausible.” Id.

Woodward's Batson claim was presented to the Mississippi Supreme Court on direct review of the resentencing trial. Woodward III, 726 So.2d at 529-34. That court reviewed each peremptory challenge and concluded that the State had met its burden of offering race-neutral reasons for its peremptory challenges. Id. at 530-33. The court noted that “[t]he establishment of a race-neutral reason is not a difficult task” and that a “trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority persons are to be accorded great deference.” Id. at 530 (citing Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995)). Woodward has not demonstrated that the Mississippi Supreme Court's decision was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). We find no error in the state court's finding that the State satisfied the second prong of the Batson analysis.

Whether a defendant has carried his burden under Batson's third step to prove purposeful discrimination is based on the persuasiveness and credibility of the prosecutor's justification for his exercise of the peremptory strike. Id. Because of the importance of demeanor and credibility evidence in making such determinations, we give strong deference to the determination of the trial judge, consistent with AEDPA. See Hernandez, 500 U.S. at 369, 111 S.Ct. 1859 (“[W]e decline to overturn the state trial court's finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous.”). However, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Elem, 514 U.S. at 768, 115 S.Ct. 1769.

Woodward argues that the trial court's failure to make a finding of demeanor as to Ms. McAbree establishes a Batson error, relying on Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). Where the peremptory challenge is based on a potential juror's demeanor, “the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Snyder, 128 S.Ct. at 1208. Factual findings relating to the juror's demeanor are essential to our review of a Batson claim. See id. at 1209. In Snyder, the prosecution offered two race-neutral reasons for striking a potential juror: the “main reason” was that the juror “looked very nervous” throughout questioning; the other reason related to the juror's commitments as a student teacher. Id. at 1208. The defendant disputed both explanations. The Supreme Court reversed, based in part on the “absence of anything in the record showing that the trial judge credited the claim that Mr. Brooks was nervous.” Id. at 1212.

Rather than making a specific finding on the record concerning Mr. Brooks' demeanor, the trial judge simply allowed the challenge without explanation. It is possible that the judge did not have any impression one way or the other concerning Mr. Brooks' demeanor .... Or, the trial judge may have found it unnecessary to consider Mr. Brooks' demeanor, instead basing his ruling completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutor's assertion that Mr. Brooks was nervous. Id. at 1209. In this case, as in Snyder, the State offered multiple reasons for striking McAbree and we cannot presume that the trial court credited the State's assertion that McAbree was hostile. Woodward, however, has failed to show that the state court's factual findings were unreasonable in light of the evidence presented.

Woodward did not rebut the State's race-neutral reason for all the other challenges. On appeal, however, Woodward nonetheless argues that he is entitled to relief under Batson because (1) the reasons given by the State for striking black jurors were not equally applied to white jurors; and (2) both the district court and the Mississippi State Supreme Court erred by considering each peremptory challenge individually, rather than examining “the totality of the relevant facts about a prosecutor's conduct during the defendant's own trial.” Relying on Miller-El and Snyder, Woodward argues that as long as the relevant facts were before the trial court, it was not necessary that particular arguments be made in support of a showing of pretext. Essentially, Woodward would impose on the state trial court the duty to conduct a comparison analysis to identify possible instances where the reasons for peremptory challenges are unequally applied to black and white jurors, regardless of whether a defendant articulates a rebuttal argument regarding unequal application of reasons for strikes. Woodward relies heavily on the following language from a footnote in Miller-El to support his argument:

The dissent contends that comparisons of black and nonblack venire panelists, along with Miller-El's arguments about the prosecution's disparate questioning of black and nonblack panelists and its use of jury shuffles, are not properly before this Court, not having been put before the Texas courts. But the dissent conflates the difference between evidence that must be presented to the state courts to be considered by federal courts in habeas proceedings and theories about that evidence. Miller-El, 545 U.S. at 241 n. 2, 125 S.Ct. 2317 (internal quotations and citations omitted). In the same footnote, the Court goes on to explain that [t]here can be no question that the transcript of voir dire, recording the evidence on which Miller-El bases his arguments and on which we base our result, was before the state courts, nor does the dissent contend that Miller-El did not fairly present his Batson claim to the state courts. Only as to the juror questionnaires and information cards is there question about what was before the state courts. Id. (internal quotations and citations omitted). Because a defendant has the ultimate burden of persuasion, it is important that he “fairly present” his claim to the state court in seeking to persuade the state court that discrimination exists.

The State relies heavily on this court's decisions in Wright v. Harris County, 536 F.3d 436 (5th Cir.2008) and United States v. Arce, 997 F.2d 1123, 1127 (5th Cir.1993), to argue that Woodward waived his Batson claim by failing to rebut the State's race-neutral reasons for striking the black jurors. Wright was a civil suit where only one black venireman had a “realistic chance” of serving on the jury. Wright, 536 F.3d at 437. In Arce, a noncapital criminal case, we held that “[b]y failing to dispute the prosecution's ... explanation in the district court, defendants have waived their right to object to it on appeal.” Capital cases employ different standards than noncapital cases at times, and our more recent decision in Reed v. Quarterman, 555 F.3d 364 (5th Cir.2009), suggests that waiver does not apply in capital cases.

[T]he trial court stated at the hearing that it was considering only the voir dire transcripts of the ten African-American jurors that the prosecution struck, not those of any other jurors. Further, the prosecutor noted, “[a]t no time has [Miller-El] urged that there are unchallenged venire persons who did not have these same traits that the prosecutors testified either at trial or in this hearing that they relied on in exercising the State's peremptory challenges.” Miller-El did not respond to this statement and did not ask the court to consider any other portions of the voir dire transcript. After reviewing the voir dire transcript of only the challenged jurors, the judge accepted the prosecutor's race-neutral explanations for the strikes and found that there was “no purposeful discrimination.” The [Texas Court of Criminal Appeals] affirmed, stating that it had “carefully reviewed the voir dire examination” of the prospective black jurors and found “ample support ... for the prosecutor's racially neutral explanations.” Again, it is important to emphasize that the TCCA never reviewed the entire voir dire transcript or considered a comparative analysis. Reed, 555 F.3d at 371. Notwithstanding that “Miller-El's arguments gave the state court no reason to go leafing through the voir dire transcript,” the Miller-El majority “soundly rejected” the dissent's argument that the state court's consideration of evidence supporting a Batson claim is “unrealistic.” Id. at 372 (quoting Miller-El, 545 U.S. at 283, 125 S.Ct. 2317 (Thomas, J., dissenting)). Contra Snyder, 128 S.Ct. at 1214 (Thomas, J., dissenting) (“We have no business overturning a conviction, years after the fact and after extensive intervening litigation, based on arguments not presented to the courts below.”). We therefore decline to find that Woodward waived any Batson claim based on a comparison analysis. Woodward nonetheless must carry his burden of proving purposeful discrimination, and for purposes of our review, he must demonstrate that the state court's factual findings were unreasonable in light of the evidence presented.

In Miller-El, the Court recognized that Miller-El's evidence was open to judgment calls “at some points,” but the Court considered substantial evidence in determining that discrimination existed, including juror comparisons, statistical data,FN9 prosecutors' use of a procedure known as the jury shuffle,FN10 contrasting voir dire questions, “manipulative minimum punishment questioning,” and the Dallas County office prosecutors' “specific policy of systematically excluding blacks from juries.”FN11 In this case, Woodward relies on statistics and jury comparisons to argue that the state court clearly erred in finding no discrimination.

FN9. In that case, there were 20 black members of a 108-person venire panel. Miller-El, 545 U.S. at 240, 125 S.Ct. 2317. One served, 9 were excused for cause, and 10 were peremptorily struck. Id. at 240-41, 125 S.Ct. 2317. The Court stated that “[h]appenstance is unlikely” the cause of the prosecutors use of peremptory strikes to exclude 91% of black jurors. Id. at 241, 125 S.Ct. 2317.

FN10. The Court described Texas's jury shuffle procedure as follows: [E]ither side may literally reshuffle the cards bearing panel members' names, thus rearranging the order in which members of a venire panel are seated and reached for questioning. Once the order is established, the panel members seated at the back are likely to escape voir dire altogether, for those not questioned by the end of the week are dismissed. Id. at 253, 125 S.Ct. 2317. The Court also noted that the prosecutors noted the race of each panelist on all of the juror cards. Id. at 250 n. 7, 125 S.Ct. 2317. FN11. Id. at 261-63, 125 S.Ct. 2317.

The State used peremptory strikes to exclude 100% of black jurors, but Woodward has not provided the Court with information regarding the makeup of the entire jury pool. See Medellin v. Dretke, 371 F.3d 270, 278 (5th Cir.2004) (“For the statistical evidence to be relevant, data concerning the entire jury pool is necessary. The number of strikes used to excuse minority and male jury members is irrelevant on its own.”); cf. United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991) (“[T]he prosecution's challenge rate against minorities was 50 percent (three of six) in the selection of the jury of 12, and 57 percent (four of seven) in the selection of the jury of 12 plus alternates. Whether this rate creates a statistical disparity would require knowing the minority percentage of the venire; for example, if the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities.”). For example, if there are only 3 black members of a 100-member venire panel, i.e., 3% black, there is a weaker argument that exclusion of 100% of the black members evidences purposeful discrimination. If, however, there were 10 black members of a 40 member venire panel, i.e., 25% black, the argument strengthens as to purposeful discrimination if the State strikes 100% of the black members. We know that the peremptory challenges were used to exclude 100% of the black jury venire members, but this statistic standing alone does not support a finding of discrimination.

Woodward also makes a comparison analysis to establish purposeful discrimination. In total, the State used six peremptory challenges to strike all available black jurors: Ms. Proctor, Ms. McAbree, Ms. Steele, Ms. Griffin, Ms. Williams, and Mr. O'Banner.FN12 With respect to Ms. Proctor, the State alleged that it struck her because she was unemployed and on a previous case was unable to reach a verdict. Woodward does not assert that white members of the panel were similarly situated, but he suggests that the court and the State should have further explored the reasons for the strike. “[T]he prosecution's failure to question a potential juror about a characteristic that the State asserts is important is evidence that the asserted reason was actually a pretext for discrimination.” Reed, 555 F.3d at 376 (citing Miller-El, 545 U.S. at 246, 125 S.Ct. 2317). A review of the State's voir dire reveals that it asked no questions regarding employment or prior jury service. Because employment and prior jury service questions were on the juror questionnaire, however, it does not automatically follow that absence of the questions in voir dire is indicative of pretext. On habeas review, Woodward had to make a stronger showing to establish that the state court's findings were unreasonable in light of the evidence presented. He has not made that showing. FN12. Mr. O'Banner was an alternate juror.

The State alleged that it struck Ms. McAbree because she was unresponsive, hostile, and had relatives that work in the prison system. As we discussed supra, the trial court made no findings regarding Ms. McAbree's hostility, and we do not presume that it credited the State's assertion of that reason. Woodward still offers no rebuttal to the State's first race-neutral reason, that Ms. McAbree was unresponsive. In his brief, Woodward simply ignores this race-neutral reason, stating that the prosecutor provided only two reasons. We find no error in the state court's finding of no race discrimination in the State's striking of Ms. McAbree.

The State originally challenged Ms. Steele for cause, stating that she was incoherent and unresponsive. The trial judgeFN13 offered to bring her back for voir dire, but the State declined. Woodward offers no evidence of discriminatory intent except the fact that Ms. Steele was black. Again, where Woodward fails to rebut the State's race-neutral reason for striking a juror, evidence of race standing alone offers little evidence of discriminatory intent. The state court was not unreasonable in finding no race discrimination. FN13. The trial judge seemed to agree with the State's characterization, stating that “[s]he was incoherent at times I thought, and her body language was such that she did appear nervous.”

Regarding Ms. Griffin, Woodward misinterprets the record as to the State's reason for striking her. Woodward asserts that the State struck Ms. Griffin because she had a relative on the jury and because her husband had law enforcement problems. Read in context, it is clear that the State struck her because her husband had law enforcement problems, not because she had a relative on the jury. Notably, the record does not show the relevance of Jerry Gardner, but Woodward made no objection to the State's reliance on Mr. Gardner's information relating to Ms. Griffin's husband's problem with law enforcement. A finding of no discriminatory intent in the State's use of a peremptory strike to exclude Ms. Griffin is not unreasonable in light of the evidence presented.

Regarding Ms. Williams, the State based its strike on the fact that she was a psychology major, and it added that it did not have a written response from her. Again, Woodward only attempts to challenge the State's reason based on the lack of a written response, arguing that others failed to respond. The primary reason for the State's strike was based on Ms. Williams studies in psychology. During voir dire, one of the questions the State asked was “[h]ave you or a member of your family ever studied psychology or any type of field such as that?” Ms. Williams indicated that psychology was her major in college, and the State asked her several questions relating to the topic. The evidence supports the trial court's finding that the State did not strike her for a racially motivated reason, and the decision was not unreasonable.

Finally, Woodward offers no argument on appeal relating to Mr. O'Banner, other than the fact that he is black. Considering the entire record, Woodward has not demonstrated that the Mississippi Supreme Court's denial of his Baton claim was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). Accordingly, Woodward is not entitled to habeas relief on this claim.

CONCLUSION

For the reasons discussed above, Woodward's request for habeas relief is DENIED.