Richard Gerald Jordan v. State of Mississippi ( 1998 )


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  •                         1IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2002-DR-00896-SCT
    RICHARD GERALD JORDAN
    v.
    STATE OF MISSISSIPPI
    DATE OF JUDGMENT:                               04/24/1998
    TRIAL JUDGE:                                    HON. KOSTA N. VLAHOS
    COURT FROM WHICH APPEALED:                      HARRISON COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANT:                        OFFICE OF CAPITAL POST-CONVICTION
    COUNSEL
    BY: DAVID P. VOISIN
    ROBERT RYAN
    ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
    BY: MARVIN L.WHITE, JR.
    DISTRICT ATTORNEY:                              CONO CARANA
    NATURE OF THE CASE                              CIVIL - DEATH PENALTY - POST
    CONVICTION RELIEF
    DISPOSITION:                                    LEAVE TO SEEK POST-CONVICTION
    RELIEF, DENIED - 03/10/2005
    MOTION FOR REHEARING:
    MANDATE ISSUED:
    EN BANC.
    WALLER, PRESIDING JUSTICE, FOR THE COURT:
    ¶1.    Once again this Court reviews Richard Gerald Jordan’s death penalty case.       Since his
    conviction in 1976 for the murder of Edwina Marter, Jordan’s case has been reviewed a total
    of six times by various courts, including this Court, the United States Court of Appeals for the
    Fifth Circuit and the United States Supreme Court.
    FACTUAL BACKGROUND
    ¶2.     In January of 1976, Richard Gerald Jordan traveled to Gulfport from Louisiana. He
    telephoned the Gulf National Bank and asked to speak to a loan officer. After he was told that
    Charles Marter could assist him, Jordan ended the call and found Marter’s Gulfport residence
    address in the telephone directory. He went to the Marter’s residence and, pretending to be
    an employee of the electric company, gained entrance to the house.          He kidnapped Charles’s
    wife, Edwina, forcing her to leave her three-year-old son sleeping alone in the house.       Jordan
    forced Edwina to drive to a deserted area of the DeSoto National Forest.
    ¶3.     Jordan shot Edwina in the back of the head. The defense claimed that Edwina tried to
    run away and that Jordan attempted to fire a warning shot over her head. The bullet entered her
    skull at the lower right occipital area of the brain and traveled upward, exiting above her left
    eye. The State claimed that Jordan executed Edwina by firing one bullet into the back of her
    head as she knelt in front of him.
    ¶4.     Jordan then disposed of the murder weapon and called Charles Marter, telling him that
    he had kidnapped Edwina and that she was alive and well. Jordan demanded that Charles leave
    $25,000 on a blue jacket that he would find on the side of U.S. Highway 49. However, when
    Charles attempted to leave the money, he did not find the jacket.          Jordan called Charles the
    next day and again demanded the $25,000. He assured Charles that Edwina was fine and that
    she was concerned for her children.     On his second attempt, Charles found the jacket and left
    the money, as he had been instructed.          When Jordan retrieved the money, two officers
    attempted to arrest him. Jordan escaped but was later captured at a roadblock. He confessed
    2
    to the crime and told police where to find Edwina’s body. He cooperated with the investigating
    officers, telling them where he had disposed of the gun and showing them where he had hidden
    the money and his automobile.
    ¶5.     Jordan was convicted and sentenced to death in 1976. Subsequently, the law pertaining
    to death penalty proceedings changed, and Jordan’s conviction and sentence were vacated. See
    Jackson v. State, 
    337 So. 2d 1242
    (Miss. 1976).          In 1977, Jordan was retried in a bifurcated
    trial and was again convicted and sentenced to death. The conviction and sentence was affirmed
    by this Court in Jordan v. State, 
    365 So. 2d 1198
    (Miss. 1978), cert. denied, 
    444 U.S. 885
    ,
    
    100 S. Ct. 175
    , 
    62 L. Ed. 2d 114
    (1979). See also In re Jordan, 
    390 So. 2d 584
    (Miss. 1980)
    (on petition for writ of error coram nobis).
    ¶6.     His death sentence was later vacated by the U.S. Court of Appeals for the Fifth Circuit
    due to unconstitutional penalty-phase instructions. Jordan v. Watkins, 
    681 F.2d 1067
    (5th
    Cir.), rehearing denied sub nom. Jordan v. Thigpen, 
    688 F.2d 395
    (5th Cir. 1982). The Fifth
    Circuit remanded the case for a new sentencing trial.
    ¶7.     In 1983, Jordan was again sentenced to death and that sentence was affirmed by this
    Court. Jordan v. State, 
    464 So. 2d 475
    (Miss. 1985).            However, based on its decision in
    Skipper v. South Carolina, 
    476 U.S. 1
    , 
    106 S. Ct. 1669
    , 
    90 L. Ed. 2d 1
    (1986), the Supreme
    Court vacated Jordan’s death sentence.1        Jordan v. Mississippi, 
    476 U.S. 1
    101, 
    106 S. Ct. 1
            The trial court’s exclusion of the testimony of jailers and visitors in the sentencing
    phase denied petitioner his right to present all relevant evidence in mitigation. Skipper v.
    South Carolina, 
    476 U.S. 1
    , 
    106 S. Ct. 1669
    , 
    90 L. Ed. 2d 1
    (1986).
    3
    1942, 
    90 L. Ed. 2d 352
    (1986).         On remand, Jordan entered into an agreement with the State
    whereby he would forego another sentencing trial and accept a sentence of life imprisonment
    without parole.
    ¶8.     In 1994, this Court invalidated that agreement, finding that life without parole was not
    an option under then Miss. Code Ann. § 97-3-21 (1987).             Once again Jordan’s case was
    reversed and remanded for another sentencing hearing.        Jordan v. State, 
    697 So. 2d 1190
    (Miss. 1997).      On April 24, 1998,        Jordan was again sentenced to death, and this Court
    affirmed that sentence in 2001. Jordan v. State, 
    786 So. 2d 987
    (Miss. 2001), cert. denied,
    
    534 U.S. 1085
    , 
    122 S. Ct. 823
    , 
    151 L. Ed. 2d 705
    (2002).            Jordan is now seeking post-
    conviction relief and has filed an application for leave to proceed in the trial court and the
    petition for post-conviction relief.      Finding no merit to Jordan’s claims, we deny Jordan’s
    application for leave to seek post-conviction relief.
    ANALYSIS
    ¶9.     In the motion for post-conviction relief, Jordan raises thirty claims. We have
    consolidated those claims below.
    I.        Blood Spatter and the “Execution-style” theory
    ¶10.    Jordan raises ten claims that are included under this heading.      Broadly stated, Jordan
    objects to the way in which the State presented its theory that Edwina Marter was killed
    “execution-style.”    Jordan’s position has always been that he shot Edwina when she suddenly
    ran away from him.         The State refuted Jordan’s defense with Officer David Melton who
    4
    testified that blood spatter patterns at the scene demonstrated Edwina was in a stationary
    position, standing or kneeling in front of Jordan when she was shot. The State also presented
    the testimony of forensic pathologist, Dr. William D. Atchison, who opined that Edwina was
    not running away from Jordan and was, in fact, probably kneeling in front of him.
    ¶11.    As he has in past pleadings, Jordan once again objects to the testimony of Officer David
    Melton and to Melton’s qualifications as an expert witness. Melton testified for the first time
    in Jordan’s 1983 trial and in every subsequent trial.        The State correctly points out that the
    Court has now twice considered David Melton as an expert witness and the evidence regarding
    blood spatter patterns. In both instances, the Court has denied Jordan relief. In the 1985 direct
    appeal opinion, we held that Melton was properly qualified to express an opinion regarding
    blood spatter. See Jordan v. State, 
    464 So. 2d 475
    , 484 (Miss. 1985). Again, in the most
    recent appeal, we held that the trial court properly admitted Melton’s testimony.         Jordan v.
    
    State, 786 So. 2d at 1017
    .       The State argues that this claim cannot be re-litigated under the
    provisions of Miss. Code Ann. § 99-39-21(3).            Furthermore, the State points out that any
    attempt to litigate this claim on a different legal or factual theory than that previously
    forwarded is barred by the provisions of Miss. Code Ann. § 99-39-21(2).
    ¶12.    We agree that this issue has already been litigated and is now procedurally barred.
    Jordan is attempting to rephrase the issue as a knowing presentation of false or misleading
    evidence, but the underlying claim is the same one that has already been addressed and found
    to have no merit.
    5
    ¶13.     Notwithstanding the procedural bar, we will examine the merits of the claim. David
    Melton had received training in the interpretation of blood stains and could opine with authority
    about the blood found at the scene.         Melton testified that he was employed by the Gulfport
    Police Department from 1966-1969 and by the Harrison County Sheriff’s Department from
    1972-1977.      He attended the Mississippi State Law Enforcement Training Academy and
    received training in fingerprints and blood stains. As this Court has already determined, the trial
    court did not err in allowing Melton’s testimony.
    ¶14.     We now also consider the standard to be applied to Jordan’s claim that the State
    knowingly presented false testimony.      Jordan asserts that if there is any reasonable likelihood
    that the allegedly false evidence affected the judgment of the jury, then the defendant is
    entitled to a new trial.   We find that Jordan has not demonstrated a reasonable likelihood that
    David Melton’s testimony on blood spatter evidence resulted in a death sentence where it is
    undisputed that Jordan was twice convicted and sentenced to death in previous trials in which
    David Melton did not testify on the issue of blood spatters.      We find that the issue is without
    merit.
    ¶15.     Jordan’s next argument is that it is a violation of the law of the case doctrine and the
    doctrines of collateral and judicial estoppel to allow the State to present evidence that Edwina
    was killed “execution-style.”2   He argues that at the first two trials, the State acquiesced to his
    2
    The law of the case doctrine stands for the proposition that whatever was once
    established as the controlling legal rule of decision, between the same parties in the same case,
    continues to be the law of the case, so long as there is a similarity of facts. Mauck v.
    Columbus Hotel Co., 
    741 So. 2d 259
    , 266-67 (Miss. 1999).
    6
    account that he shot Edwina when she tried to run away from him. He argues it was error then
    for the State, in subsequent proceedings, to argue instead that Edwina was kneeling in front of
    Jordan when she was shot.          Jordan cites a number of federal cases for the proposition that
    pursuing inconsistent theories is cause for reversal.         Donnelly v. DeChristoforo, 
    416 U.S. 637
    , 
    94 S. Ct. 1868
    , 
    40 L. Ed. 2d 431
    (1974); Smith v. Groose, 
    205 F.3d 1045
    , 1052 (8th Cir.
    2000); Drake v. Kemp, 
    762 F.2d 1449
    , 1470-79 (11th Cir. 1985). 3
    ¶16.    The State argues the evidence that Edwina Marter was killed execution-style was not a
    new theory. The State attempted to introduce this evidence at the sentencing trial in 1977 and
    the State used this theory in its re-sentencing of Jordan in 1983.
    ¶17.    We agree with the State and also now find that no objection was raised on this claim at
    trial or on appeal. Furthermore, Jordan could have and yet failed to raise this issue in previous
    post-conviction pleadings.     Therefore, Jordan’s claim that it was a violation of the law of the
    case doctrine and the doctrines of collateral and equitable estoppel to allow the State to
    present evidence that Edwina was killed “execution-style” is now procedurally barred by Miss.
    Code Ann. § 99-39-21.
    3
    We find those cases distinguishable.     In Smith v. Groose, the prosecution used two
    contradictory statements as to when a murder occurred to convict two defendants at separate
    trials. In Drake v. Kemp there were two defendants in two different trials where the
    prosecution argued different theories to convict each of murder. In Donnelly v. DeChristoforo,
    there were two defendants in joint trials. Prior to the conclusion of the trial, one defendant
    pled guilty to the murder. In closing arguments as to DeChristoforo the prosecutor remarked
    about DeChristoforo’s motive for continuing to stand trial after his co-defendant pled guilty.
    The U.S. Supreme Court held that the comment did not render the trial fundamentally unfair
    and that DeChristoforo was not denied due process.
    7
    ¶18.    Notwithstanding the procedural bar, we find this issue has no merit.    In the trials prior
    to 1983, the trial court never held Melton’s testimony inadmissible with regard to the
    substantive content of blood spatter testimony. Therefore, there was no law of the case as to
    Melton’s testimony established in the 1977 trial. This Court previously held Melton’s blood
    spatter testimony and Dr. Atchison’s testimony as to the position of the victim’s body to be
    admissible.    Furthermore, the State was not attempting to relitigate Jordan’s conviction, but
    was introducing evidence of aggravating factors with regard to re-sentencing.
    ¶19.    Next, Jordan asserts that misconduct by the special prosecutor hampered defense
    counsel’s ability to raise an objection to the State’s inconsistent theories and hampered his
    ability to cross-examine the State’s experts about their qualifications and conclusions on the
    issue of blood spatter evidence. Jordan asserts that the special prosecutor led defense counsel,
    Tom Sumrall, to believe that transcripts of prior trials were unavailable for review.      Having
    failed to review the transcripts of prior trials, it was impossible for the defense attorney to
    realize that the State was pursuing inconsistent theories in the 1998 re-sentencing trial. Jordan
    argues that the State’s misleading statements about the availability of the transcripts was a
    violation of Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
    (1963).
    ¶20.    The State correctly points out that all of the transcripts of the earlier proceedings are
    public records and, as such, were equally available to the State and the defense. Also the State
    argues that what Jordan describes would not be a Brady violation.
    ¶21.    In King v. State, 
    656 So. 2d 1168
    (Miss. 1995), this Court noted:
    8
    United States v. Spagnoulo sets forth a four-prong test to determine
    whether a Brady violation has occurred mandating a new trial. To establish a
    Brady violation a defendant must prove the following: (1) that the government
    possessed evidence favorable to the defendant (including impeachment
    evidence); (2) that the defendant does not possess the evidence nor could he
    obtain it himself with any reasonable diligence; (3) that the prosecution
    suppressed the favorable evidence; and, (4) that had the evidence been disclosed
    to the defense, a reasonable probability exists that the outcome of the
    proceedings would have been different. Spagnoulo, 
    960 F.2d 990
    , 994 (11th Cir.
    1992), citing United States v. Meros, 
    866 F.2d 1304
    , 1308 (11th Cir. 1989),
    (cert. 
    denied). 656 So. 2d at 1174
    .            It is well settled that exculpatory evidence in the possession of the
    prosecution must be turned over to the accused in a criminal proceeding.             However, as this
    Court has held, the prosecution is under no duty to turn over its entire file to the defense.
    Boches v. State, 
    506 So. 2d 254
    , 563 (Miss. 1987) (citing Scott v. State, 
    359 So. 2d 1355
    ,
    1361 (Miss. 1978)).
    ¶22.    Furthermore, the affidavit of defense counsel Tom Sumrall filed with Jordan’s petition
    for post-conviction relief does not support the claim that Sumrall was somehow misled as to
    the existence of transcripts. Sumrall stated he knew that the transcripts generated in previous
    proceedings were voluminous.           He stated he received a box full of transcripts, but then
    discovered that some were incomplete.           He explained he had generous access to the special
    prosecutor’s files and transcripts and was provided with any copies that he wanted. We find
    this claim is without merit.
    ¶23.    While much time and argument has been expended on the blood spatter evidence, that
    evidence is only one portion of a larger context of evidence upon which the jury could have
    sentenced Jordan to death.         After a defendant is convicted of a capital offense, the trial court
    9
    shall conduct a separate sentencing proceeding to determine whether the defendant should be
    sentenced to death or life imprisonment, with or without parole.           Miss. Code Ann. § 99-19-
    101(1). Miss. Code Ann. § 99-19-101 provides in pertinent part:
    (3) For the jury to impose a sentence of death, it must unanimously find
    in writing the following:
    (b) That sufficient aggravating circumstances exist as enumerated
    in subsection (5) of this section; and
    (c) That there are insufficient mitigating circumstances, as
    enumerated in subsection (6), to outweigh the aggravating
    circumstances.
    Miss. Code Ann. § 99-19-101 further provides, in pertinent part:
    (5) Aggravating circumstances shall be limited to the following:
    (d) The capital offense was committed while the defendant was
    engaged, or was an accomplice, in the commission of, or an
    attempt to commit, or flight after committing or attempting to
    commit, any robbery, rape, arson, burglary, kidnapping, aircraft
    piracy, sexual battery, unnatural intercourse with any child under
    the age of twelve (12), or nonconsensual unnatural intercourse
    with mankind, or felonious abuse and/or battery of a child in
    violation of subsection (2) of Section 97-5-39, Mississippi Code
    of 1972, or the unlawful use or detonation of a bomb or explosive
    device.
    (f) The capital offense was committed for pecuniary gain.
    (h) The capital offense was especially heinous, atrocious or cruel.
    Jordan was convicted of capital murder.        In the bifurcated sentencing proceeding and the re-
    sentencing proceedings, the jury has found sufficient aggravating circumstances to impose the
    death penalty.    The jury’s finding in the most recent trial clearly indicates it found beyond a
    reasonable doubt that Jordan murdered Edwina; the murder was committed in the commission
    10
    of a kidnaping; the murder was committed for pecuniary gain; and, it was especially heinous,
    atrocious and cruel, supported by the fact that she was subjected to the mental torture caused
    by her abduction from her home where she was forced to leave her three-year old son alone.
    ¶24.   Even if the testimony on the subject of blood spatter patterns were excluded, there were
    still sufficient proof of aggravating circumstances to support Jordan’s death sentence.       See
    McGilberry v. State, 
    843 So. 2d 21
    , 29 (Miss. 2003) (where this Court addressed the
    aggravating circumstance of whether McGilberry created a great risk of death to many persons
    and held that "[i]f one aggravator is found to be invalid, we are authorized to re-weigh the
    remaining aggravators against the mitigating circumstances and affirm, hold the error to be
    harmless, or remand for a new sentencing hearing. Miss. Code Ann. § 99-19-105(5)(b) (Rev.
    2000).”
    II.    Ineffective assistance of counsel
    a) Blood spatter
    ¶25.   Jordan raises a number of claims of ineffective assistance of counsel.     The first several
    of those claims are that defense counsel, Tom Sumrall, was ineffective for failing to prepare
    to rebut Melton’s blood spatter testimony, for failing to hire a blood spatter expert to refute
    Melton’s testimony and for failing to object, at trial, to Melton’s qualifications as an expert on
    the subject. Jordan asserts that Sumrall could have and should have contacted Robert McDuff,
    who represented Jordan from 1988 through 1991, to get McDuff’s files on this subject. 4 Jordan
    4
    Tom Sumrall (defense counsel) provided an affidavit in which he states that had he
    realized Melton would be testifying as a blood spatter expert, he would have asked for funds
    11
    notes that Sumrall failed even to review transcripts of the previous trials, which would have
    alerted Sumrall to the subject matter of Melton’s testimony.
    ¶26.    The State points out that defense counsel, in 1998, may have been somewhat at a loss to
    challenge Melton’s qualifications where this Court had already found no reversible error in
    permitting Melton to testify as an expert. Jordan v. 
    State, 464 So. 2d at 486
    . The State also
    notes that Jordan had the services of Dr. Leroy Riddick, also a forensic pathologist, to dispute
    the theory presented by Melton and Dr. Atchison.
    ¶27.    While we agree that Melton had been found qualified to testify as an expert in Jordan’s
    previous trials, we are troubled by Jordan’s defense counsel’s confession that he failed to
    realize that blood spatter evidence would be presented.        Certainly, Sumrall should have realized
    that such testimony was possible because Melton had testified on the subject in 1983. We find
    that Sumrall’s performance was deficient on this point.
    ¶28.    However, the analysis of this issue does not stop there.           Next, we must determine
    whether that deficient performance prejudiced Jordan’s defense.       In this petition, Jordan merely
    states that it was prejudicial and points out that the blood spatter testimony was central to the
    State’s case.     A meritorious claim of ineffective assistance of counsel requires more than the
    mere statement that the defendant was prejudiced and requires more than just the petitioner’s
    allegations that this subject matter was central to the State’s case.      As we have noted, Jordan
    was convicted and sentenced to death twice before David Melton’s blood spatter testimony was
    to hire an independent expert.
    12
    ever presented to a jury. While the blood spatter testimony is clearly an emotional and highly
    charged detail of Jordan’s trials after 1983, there was enough evidence even without such
    testimony to convict Jordan twice before.
    ¶29.    The Strickland standard is familiar; whether petitioner was prejudiced by the deficient
    performance. Prejudice occurs when the defendant shows 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. Strickland v. Washington, 
    466 U.S. 668
    , 684, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). Jordan’s petition fails to meet the Strickland standard on the second prong. Jordan’s
    argument that the blood spatter evidence was central to the case is not enough to undermine
    confidence in the result. This claim is without merit.
    b) Jury instructions
    ¶30.    Jordan’s next claims of ineffective assistance of counsel pertain to the jury instructions
    and the form of the verdict. Jordan argues that the jury instructions favored the State’s theory
    and failed to instruct the jury on the defendant’s rebuttal of that theory.   Jordan also argues, as
    he has on previous appeals, that the use of the heinous, cruel and atrocious jury instructions
    improperly allowed the jury an evidentiary short-cut to finding the aggravating circumstances.
    13
    ¶31.    Jordan cites Keys v. State, 
    635 So. 2d 845
    (Miss. 1994),5 in support of the argument that
    the jury instructions took away the jury’s discretion to consider his theory that the murder was
    not unnecessarily tortuous or physically painful to Edwina, and, therefore, was not heinous,
    atrocious and cruel. We do not agree. In Jordan’s case the jury instruction did not take away
    the discretion of the jury to consider his theory of defense. Instead the instruction set forth the
    State’s theory and provided the basis for finding aggravating circumstance that the murder was
    heinous, atrocious and cruel.
    ¶32.    As the State points out, this Court has already addressed the merits of the underlying
    claims that Jordan now raises under the guise of ineffective assistance of counsel. See Jordan
    v. 
    State, 786 So. 2d at 1001-04
    & 1026. (where this Court addressed the exact issues on jury
    instructions and found that the instructions were not unconstitutionally vague or over-broad and
    that the jury’s verdict, while not in ideal form, was in sufficient form to indicate the intent of
    the jury).
    ¶33.    We find that Jordan’s ineffective assistance of counsel claims are based upon claims that
    have already been raised by Jordan and addressed by this Court. See, Jordan v. State, 
    786 So. 2d
    987 (Miss. 2001); Jordan v. State, 
    464 So. 2d 475
    (Miss. 1985).             Jordan cannot now
    relitigate these issues under the guise of ineffective assistance of counsel claims.   Furthermore,
    Jordan cannot demonstrate that his counsel’s performance fell below a reasonable professional
    5
    In Keys, the jury was instructed that if it found the defendant had armed himself and
    confronted the victim, then it could not find the defendant acted in self-defense.
    14
    standard and that counsel’s performance caused prejudice to his defense where this Court has
    found the jury instructions proper, the verdict sufficient to indicate the intent of the jury and
    the evidence sufficient to support the verdict. We find no merit to this claim.
    ¶34.    In a closely related claim, Jordan argues that the trial court erred in accepting the jury’s
    verdict which merely copied verbatim the flawed jury instructions.                The jury’s verdict, in
    pertinent part, was as follows:
    Three, Richard Jordan committed a capital offense which was especially
    heinous, atrocious & cruel & whether the murder was conscienceless and
    pitiless. In support of the circumstances the State claims that Edwina Marter was
    murdered in execution style & that she was subjected to extreme mental torture
    caused by her abduction from the home wherein she was forced to abandon her
    unattended three-year-old child & removed to a wooded area at which time she
    was shot in the back of the head by Jordan....
    Jordan argues that the verdict was not in substantial compliance with the requirements of the
    law and was not an intelligent response to the trial court’s instructions.        Jordan cites Harrison
    v. Smith, 
    379 So. 2d 517
    , 519 (Miss. 1980), a civil case in which the verdict appeared to find
    both parties negligent without apportioning fault, and Stewart v. State, 
    662 So. 2d 552
    (Miss.
    1995), a criminal case in which the jury’s verdict found the defendant guilty of both capital
    murder and conspiracy to commit capital murder, rather than guilty of one or the other.
    ¶35.    Miss. Code Ann. § 99-19-9 provides that where there has been substantial compliance
    with the law, a jury’s verdict will not be reversed for mere want of form. Case law instructs that
    if the jury’s intent can be understood in a reasonably clear manner, there has been substantial
    compliance and there is no error. "[T]he basic test with reference to whether or not a verdict
    is sufficient as to form is whether or not it is an intelligent answer to the issues submitted to
    15
    the jury and expressed so that the intent of the jury can be understood by the court." Miss.
    Valley Gas Co. v. Estate of Walker, 
    725 So. 2d 139
    , 151 (Miss. 1998); Harrison v. Smith, 
    379 So. 2d 517
    , 519 (Miss. 1980) (quoting Henson Ford, Inc. v. Crews, 
    249 Miss. 45
    , 
    160 So. 2d 81
    , 85 (1964)). In Cole v. State, 
    756 So. 2d 12
    (Miss. Ct. App. 1999), the Court of Appeals
    found that a verdict with misspellings and unusual abbreviations was not so unclear as to be
    reversible error.    We find that the jury’s verdict in the present case can be understood in a
    reasonably clear manner and, as such, will not be reversed just because it is a poor translation
    of the jury instruction(s). It was not deficient performance on the defense counsel’s part to fail
    to object to the form of this verdict.
    ¶36.    Jordan also argues that defense counsel was ineffective for failing to object because the
    especially heinous aggravator “doubled up” with the kidnapping aggravator.    He argues    that in
    explaining “especially heinous” the trial court explicitly referred to the extreme mental torture
    caused by the abduction from her home, and that this made the especially heinous aggravator
    duplicative of the kidnapping aggravator.
    ¶37.    This Court has already addressed and decided this underlying claim. In the 2001 Jordan
    opinion, the Court stated:
    The two aggravating factors of kidnapping and heinousness are not
    "doubled up" in the case at hand. Jordan could have kidnapped Edwina without the
    crime being heinous. He could have allowed Edwina to secure the safety of her
    child. He did not have to kill her in the cold and inhumane way he did. After he
    received his ransom, he could have returned her to her family, physically
    unharmed. This claim is without merit.
    16
    
    786 So. 2d
    . at 1005.             Likewise, we now find this claim under the heading of ineffective
    assistance of counsel to be without merit.
    ¶38.    Finally, Jordan argues that defense counsel should have objected to the special
    prosecutor’s remarks during closing arguments.           Those remarks pertained to the privileges that
    Jordan enjoyed, and might continue to enjoy,             at the state penitentiary at Parchman and on
    Jordan’s having used and misused the judicial system. Other remarks included the prosecutor’s
    referring to Jordan as a scam artist or con man.
    ¶39.    The State argues that, because this Court held the underlying substantive claims to be
    without merit, Jordan cannot now sustain a claim of ineffective assistance of counsel because
    he cannot show deficient performance and actual prejudice.
    ¶40.    We agree with the State.        In the 2001 opinion, the Court found, first, that Jordan’s
    counsel did make two contemporaneous objections which were overruled. Secondly, the Court
    found that Jordan himself had already introduced some of the same facts regarding his activities
    and conduct at Parchman into evidence and that the remarks did not unduly prejudice the jury
    against Jordan. This claim of ineffective assistance is without merit.
    c) Mental Health Examination
    ¶41.    Jordan makes several claims of error pertaining to the mental health examination
    conducted by Dr. Henry Maggio prior to Jordan’s 1998 re-sentencing.              The basis of Jordan’s
    first claim is that Dr. Maggio was given a copy of a report of a previous mental health
    17
    examination conducted by Dr. Clifton Davis.           Jordan argues that Dr. Davis’ report contained
    materially false information and that the State was aware that the information was false.6
    ¶42.      At the 1998 re-sentencing trial the defense opted not to call Dr. Maggio as a witness
    because his report was unfavorable to Jordan. However, the State had a copy of Dr. Maggio’s
    report and used information from that report to cross-examine a key mitigation witness.          Jordan
    argues that it was improper for the State to use the report to impeach defense witnesses because
    the report was based on erroneous information and, therefore, unreliable.
    ¶43.      The State points out that it was Jordan who requested both of the mental health
    examinations and that it was the trial court which ordered that Dr. Maggio be given a copy of
    Dr. Davis’ earlier report. The State committed no error in complying with the court’s order.
    ¶44.      In the most recent opinion, this Court examined a related version of this issue and
    thoroughly examined Jordan’s constitutional claims.         The Court found no error in the State’s
    impeachment of Jordan’s mitigation witness with information from Dr. Maggio’s report where
    the report was never introduced into evidence or read to the jury.              Furthermore, as we held
    before,       the State was within its rights to use Dr. Maggio’s report to impeach the mitigation
    witness as to veracity, credibility and his knowledge of the defendant when that witness’
    testimony directly contradicted information contained in Dr. Maggio’s report.
    ¶45.      The materially false information about which Jordan complains is the statement in Dr.
    Davis’ report that Jordan was dishonorably discharged from the Army. Jordan includes evidence
    6
    The materially false information of which Jordan complains is a statement in the
    report that notes that Jordan was dishonorably discharged from the Army.
    18
    that he was honorably discharged. From the record, we find little explanation for this error in
    the report. The report states that Jordan told Dr. Davis he had been dishonorably discharged.
    Jordan also admits that the information could have been entered incorrectly in the report.
    There was much more information in both Dr. Davis’s report and Dr. Maggio’s report that
    Jordan does not challenge as untrue.          The majority of the information used for impeaching
    Jordan’s witness had absolutely nothing to do with Jordan’s discharge from the Army, honorable
    or otherwise. Jordan cites United States v. Agurs, 
    427 U.S. 97
    , 
    96 S. Ct. 2392
    , 
    49 L. Ed. 2d 342
    (1976), for the longstanding proposition that the State has a responsibility not to present
    false or misleading evidence.      Agurs involved undisclosed evidence that the murder victim had
    prior convictions for violent crimes. The case sets out the U.S. Supreme Court’s standard for
    judging the materiality of undisclosed or false evidence.
    The proper standard of materiality of undisclosed evidence, and the
    standard applied by the trial judge in this case, is that if the omitted evidence
    creates a reasonable doubt of guilt that did not otherwise exist, constitutional
    error has been 
    committed. 96 S. Ct. at 2401-02
    . The misinformation of which Jordan complains was not material.
    Furthermore, it was not a denial of Jordan’s constitutional rights for the special prosecutor to
    supply a copy of the earlier mental health evaluation to Dr. Maggio.       Therefore, this claim is
    without merit.
    ¶46.    Next, Jordan asserts that trial counsel was ineffective for failing to inspect the files of
    the special prosecutor and/or the files of prior defense counsel, in which case he would have
    found that Dr. Davis’ report contained inaccurate information as to Jordan’s discharge from the
    19
    Army. Jordan also asserts that trial counsel had an obligation to ensure that the court-appointed
    psychiatrist conducted an evaluation consistent with accepted practice.
    ¶47.    As the State points out Dr. Maggio’s report does in fact note that Jordan himself
    explained he had been honorably discharged from the Army.            Dr. Maggio was made aware of
    the discrepancy during his own examination of Jordan.          Jordan suffered no prejudice from the
    discrepancy between the two mental health reports and he has not demonstrated that trial
    counsel was ineffective for failing to object to Dr. Maggio’s report.              
    Strickland, supra
    .
    Therefore, this issue has no merit.
    ¶48.    Next, Jordan asserts that he did not give a knowing and intelligent waiver prior to
    cooperating with Dr. Maggio. He argues that he was never informed that anything he said to the
    mental health examiners could be used against him by the State to secure a death sentence.
    Jordan continues that had he known that Dr. Maggio’s report was going to be sent to the
    prosecutor, he would not have cooperated with the doctor in the evaluation.
    ¶49.    This Court has already addressed similar issues related to Dr. Maggio’s evaluation in its
    most recent opinion. Jordan v. 
    State, 786 So. 2d at 1006-10
    . This claim is procedurally barred
    pursuant to Miss. Code Ann. § 99-39-21.
    ¶50.    However, we will examine the merits of Jordan’s claim.            Jordan specifically complains
    that he was not aware that anything he said to Dr. Maggio could be used against him and that
    because he was not aware of this, he could not have given a knowing and intelligent waiver with
    respect to the use of those statements at the sentencing proceedings. Jordan cites Estelle v.
    Smith, 
    451 U.S. 454
    , 
    101 S. Ct. 1866
    , 
    68 L. Ed. 2d 359
    (1981), and Gardner v. Johnson, 247
    
    20 F.3d 551
    (5th Cir. 2001).      7
    Estelle v. Smith provides that the Fifth and Sixth Amendments
    require that a defendant be fully apprised, prior to examination, that what he says might be used
    against him for sentencing purposes.
    ¶51.   There are distinctions between Jordan’s claim and the cases he cites. In Estelle v. Smith,
    the mental health examination was a court-ordered examination and the defense counsel was not
    aware of the scope of the examination or notified prior to the sentencing trial that the report
    would be used against the defendant. Likewise, in Gardner the mental health examination was
    a court-ordered exam and counsel was not aware that it would be used against the defendant
    during the sentencing phase.
    ¶52.   In the most recent resentencing trial in this case, it was the defense who requested
    Jordan be given a mental health evaluation for the purposes of exploring whether Jordan
    suffered from post-traumatic stress syndrome, for purposes of mitigation.      Because Jordan’s
    counsel requested the psychiatric examination, he was well aware, and even intended, that
    statements he gave be used at the resentencing trial.      Furthermore, because Dr. Maggio was
    appointed upon the defendant’s request, he was not a “state actor” for purposes of an Estelle v.
    Smith warning. This Court addressed a similar claim in which a defendant asserted that he was
    not given adequate warnings. See Cole v. State, 
    666 So. 2d 767
    , 780 (Miss. 1995) (the expert
    7
    As Estelle v. Smith teaches, the Fifth Amendment requires that the defendant in a
    capital trial who is subjected to a court-ordered psychiatric examination be informed that he
    is free to refuse to participate in that examination because its results can be used against him
    at the sentencing phase of the trial to secure the death penalty. 
    Gardner, 247 F.3d at 563
    .
    21
    appointed by the court at the defendant’s request was not a “state actor” associated with the
    prosecution).
    ¶53.      As has already been noted, Dr. Maggio’s report was not put in evidence nor was it read
    to the jury.    It was used by the prosecution to impeach a mitigation witness who testified that
    he had known Jordan for many years, that he trusted him and thought him to be a good man. The
    prosecutor had the witness silently read portions of Dr. Maggio’s report that included
    information that Jordan embezzled money from his employer, joined the Army to avoid
    prosecution, was convicted in a military court-martial proceeding and spent time in a federal
    prison.
    ¶54.      The warnings were not warranted in the instant case. However, even if it was error not
    to give the warning, the error was harmless. This claim is without merit.
    ¶55.      Next, Jordan asserts that trial counsel should have objected to the appointment of Dr.
    Maggio and should have requested appointment of a psychologist. As we have held, a defendant
    is not entitled to a psychiatrist or psychologist of his choice, but only has the right to a
    competent one.      Manning v. State, 
    726 So. 2d 1152
    , 1190-91 (Miss. 1998); Woodward v.
    State, 
    726 So. 2d 524
    , 528-29 (Miss. 1997); Butler v. State, 
    608 So. 2d 314
    , 321 (Miss. 1992);
    Willie v. State, 
    585 So. 2d 660
    , 671 (Miss. 1991).            Jordan cannot demonstrate that his trial
    counsel was deficient or any resulting prejudice from mere undeveloped assertions that another
    expert would have been beneficial. Caldwell v. Mississippi, 
    472 U.S. 320
    , 
    105 S. Ct. 2633
    , 
    86 L. Ed. 2d 231
    (1985); Burns v. State, 
    729 So. 2d 203
    , 223-24 (Miss. 1998).
    22
    ¶56.     Jordan provides nothing to show what prejudice arose from trial counsel’s failure to
    pursue another or a different mental health expert.              Therefore, Jordan fails to meet the
    ineffective assistance of counsel standard set forth in Strickland v. 
    Washington, supra
    .
    ¶57.    Jordan asserts that he was denied his right to a mental health examination because Dr.
    Maggio’s evaluation was deficient. Jordan asserts that it is widely known in the defense
    community that Dr. Maggio’s evaluations are cursory at best. Jordan also argue that Dr. Maggio
    did not use accepted criteria to diagnose antisocial personality disorder.
    ¶58.    We find this claim is procedurally barred for failure to object at trial or raise this issue
    on direct appeal. Brown v. State, 
    798 So. 2d 481
    , 491 (Miss. 2001); Wiley v. State, 
    750 So. 2d 1193
    , 1208 (Miss. 1999); Foster v. State, 
    687 So. 2d 1124
    , 1138 (Miss. 1996).
    ¶59.    Notwithstanding the procedural bar, this Court has long recognized Dr. Maggio’s
    qualifications and acceptance as an expert in the field of psychiatry. A defendant is not entitled
    to a favorable mental health evaluation, but is instead entitled to a competent psychiatrist and
    an appropriate examination.          Ake v. Oklahoma, 
    470 U.S. 68
    , 83, 
    105 S. Ct. 1087
    , 
    84 L. Ed. 2d 53
    (1985); Jackson v. State, 
    860 So. 2d 653
    , 669 (Miss. 2003). This claim is without merit.
    III.    Jury Instructions
    ¶60.    Jordan asserts that the heinous, cruel and atrocious jury instructions were improper
    because the aggravating factors were not defined with any specificity and that this created an
    evidentiary shortcut for the jury.      He argues that the jury was instructed that if they found that
    the killing was committed execution style, then they should find the aggravating circumstance
    and use it when determining whether Jordan should live or die. Jordan cites Taylor v. State, 672
    
    23 So. 2d 1246
    , 1275-76 (Miss. 1996).            In Taylor, the Court found that an instruction which
    informed the jury that the death penalty may be imposed if they found the murder to be
    especially heinous, atrocious and cruel was improperly presented to the jury because there was
    no evidence before the jury of how the murder was committed.               There was evidence that the
    victim was strangled and there was testimony that strangulation is a painful and slow way to die,
    but no specific evidence of how this strangulation was especially heinous, atrocious and cruel.
    ¶61.    The subject of this claim is the court’s instruction to the jury at the conclusion of the
    penalty phase of Jordan’s trial.    Instruction number one advised the jury as follows with respect
    to the especially heinous, atrocious and cruel aggravating circumstance:
    Whether Richard Jordan committed a capital offense which was especially
    heinous, atrocious and cruel and whether the murder was conscienceless and
    pitiless. In support of this circumstance, the State claims that Edwina Marter was
    murdered in execution style and that she was subjected to the extreme mental
    torture caused by her abduction from the home wherein she was forced to
    abandon her unattended three year old child and removed to a wooded area at
    which time she was shot in the back of the head by Jordan.
    ¶62.    This argument has already been litigated and decided against Jordan and is now
    procedurally barred under the provisions of Miss. Code Ann. § 99-39-21(3). See Jordan v.
    
    State, 786 So. 2d at 1002-03
    .
    ¶63.    Notwithstanding the procedural bar, we find there was sufficient evidence to support the
    jury instruction.   This Court has found sufficient evidence to support a heinous, cruel and
    atrocious jury instruction in a factually similar case. In Woodward v. State, 
    726 So. 2d 524
    (Miss. 1997), Woodward objected to a similar instruction, arguing that because he shot the
    victim in the back of the head, killing her instantly, the murder was not heinous, cruel or
    24
    atrocious.     We disagreed and, looking to the facts of that case, found that the victim was
    abducted from her car in broad daylight, forced into the defendant’s truck and driven to a
    wooded area where she was forced to her knees and made to perform fellatio on the defendant.
    She was then raped, and as she tried to gather her belongings, Woodward shot her in the back
    of the head.    Woodward then went back and finished out his day cutting and hauling pulpwood.
    The Court stated that clearly the abduction and rape of the victim was heinous, atrocious and
    cruel and the fact that Woodward returned to his job demonstrates that the crime was
    conscienceless and pitiless. 
    Id. at 538-39. ¶64.
       In the present case, as has been stated above, Jordan abducted Edwina from her home in
    broad daylight, forcing her to leave her three-year-old son sleeping alone in the house.          He
    forced her to drive to a wooded area on the pretext that he was going to deliver her to his partner
    while he retrieved ransom money from her husband. Upon arriving at the wooded area Edwina,
    undoubtedly, realized that there was no “partner” waiting for Jordan. Jordan shot her in the back
    of the head and then drove back into town and continued with his plan to extort money from
    Charles Marter, where for two days he led Charles to believe that his wife was alive and well.
    ¶65.    There was sufficient evidence for the jury to find that Edwina’s murder was heinous,
    atrocious, cruel, conscienceless and pitiless.   There was no unconstitutional burden-shifting in
    the jury instructions or evidentiary shortcuts for the jury. Nor were the instructions
    unconstitutionally vague or overly broad.     The instructions properly limits the jury’s discretion,
    advising them that they may find the aggravating factor only if they find that Jordan “utilized a
    25
    method of killing that inflicted physical or mental pain upon Edwina Marter before her death,
    that there was mental torture and aggravation before death.” This claim is without merit.
    ¶66.    Next, Jordan argues that the jury instructions improperly instructed the jury to disregard
    sympathy.     Jordan asserts that the defense counsel was ineffective for failing to object to the
    following instruction:
    You should consider and weigh any aggravating and mitigating
    circumstances, as set forth later in this instruction, but you are cautioned not to
    be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public
    opinion or public feeling.
    This is exactly the jury instruction that has long been approved by this Court as a proper
    statement of law.        However, Jordan argues that there is an intervening case in which this Court
    held that sympathy is a proper consideration for the jury. King v. State, 
    784 So. 2d 884
    (Miss.
    2001). The facts in King are distinguishable from Jordan’s case.             In King, the trial court
    instructed the jury from the bench to totally disregard sympathy. 
    King, 784 So. 2d at 889-90
    .
    This Court has approved the very instruction given to Jordan’s jury and has held that the jury
    instruction does not inform the jury that they must disregard in toto sympathy.         This claim has
    no merit.
    ¶67.    Jordan also argues that the jury should have been given a “catch-all” instruction as to the
    fact that they should consider and weigh all of the evidence in mitigation of punishment.       Jordan
    has presented this argument before on direct appeal and now raises it as an ineffective
    assistance of counsel claim.       This claim is therefore procedurally barred.   Notwithstanding the
    procedural bar, we will once again discuss the merits of this claim.
    26
    ¶68.    At trial, Jordan presented testimony from family members that he was a good father and
    son and had a good reputation and had served his country in Vietnam. Jordan also presented
    testimony that he was a model prisoner and had been productive while incarcerated. He asserts
    that the jury should have been instructed on how to consider the non-statutory mitigating factors
    that were presented.     He cites Jackson v. State, 
    684 So. 2d 1213
    , 1238 (Miss. 1996), and
    Eddings v. Oklahoma, 
    455 U.S. 104
    , 
    102 S. Ct. 869
    , Fl L. Ed. 2d 1 (1982), to support his
    assertion.    Both of these cases stand for the proposition that a defendant is entitled to present
    almost unlimited mitigating evidence.
    ¶69.    This Court has often approved the use of a catch-all instruction as to the jury’s
    consideration of mitigating evidence in a sentencing trial.     Wiley v. State, 
    750 So. 2d 1193
    ,
    1204 (Miss. 1999) (quoting Jackson v. 
    State, 684 So. 2d at 1213
    , 1238 (Miss. 1996)). In Scott
    v. State, 
    878 So. 2d 933
    (Miss. 2004), the Court approved the following instruction.
    Consider the following elements of mitigation in determining whether the
    death penalty should not be imposed: Any matter--any other aspect of the
    defendant's character or record, any other circumstances of the offense brought
    to you during the trial of this cause which you, the jury, deem to be mitigating on
    behalf of the defendant.
    
    Id. at 983. ¶70.
       Also in Scott v. State, the Court reiterated that when considering a challenge to a jury
    instruction on appeal, the jury instructions are not viewed in isolation, but read as a whole to
    determine if the jury was properly instructed. 
    Id. at 966; Burton
    ex rel. Bradford v. Barnett,
    
    615 So. 2d 580
    , 583 (Miss. 1993). Similarly, this Court has stated that "[i]n determining whether
    27
    error lies in the granting or refusal of various instructions, the instructions actually given must
    be read as a whole. When so read, if the instructions fairly announce the law of the case and
    create no injustice, no reversible error will be found." Coleman v. State, 
    697 So. 2d 777
    , 782
    (Miss. 1997) (quoting Collins v. State, 
    691 So. 2d 918
    (Miss. 1997)). In other words, if all
    instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules
    of law, no error results. Scott v. State, 
    878 So. 2d 933
    (Miss. 2004) (citing Milano v. State, 
    790 So. 2d 179
    , 184 (Miss. 2001)). See Austin v. State, 
    784 So. 2d 186
    , 193 (Miss. 2001). See also
    Agnew v. State, 
    783 So. 2d 699
    , 701 (Miss. 2001).
    ¶71.   In Jordan’s sentencing trial, the instructions clearly advised the jury it could consider
    any other matter brought up during the trial as mitigating evidence.    Sentencing instruction No.
    1 advised the jury that “in reaching your decision, you may objectively consider the detailed
    circumstances of the offense for which the defendant was convicted, and the character and
    record of the defendant himself.”    Sentencing instruction No. 3 advised the jury that the sworn
    testimony that was read from the witness stand was entitled to the same consideration and
    should be judged as to the credibility and weighed just as live testimony is considered.8
    Sentencing instruction No. S-5 explains that the jury must apply reasoned judgment in light of
    the totality of the circumstance.    Sentencing instruction No. D-3 instructs the jury that each
    individual must evaluate the evidence in mitigation and weigh each mitigation circumstance in
    the balance.
    8
    This goes specifically to the mitigation testimony of Jordan’s parents who were
    deceased at the time of the 1998 trial.
    28
    ¶72.     Even though the jury did not get a standard catch-all instruction like this Court approved
    in Scott, taking the instructions as a whole, the jury was instructed that it should consider and
    weigh all of the evidence in mitigation of punishment. This claim is without merit.
    IV. Due Process and Other Constitutional Claims
    ¶73.     Jordan argues that of all the inmates sentenced to death prior to the change of law
    announced in Jackson v. State, 
    337 So. 2d 1242
    (Miss. 1976), he is the only one who remains
    on death row.       All the other ultimately received a life sentence. Jordan also argues that, like
    him, several death row inmates entered into sentencing agreements whereby they agreed not to
    seek parole in exchange for the State not seeking the death penalty.            He asserts that none of
    those other inmates were re-sentenced to death following this Court’s decisions to void those
    agreements.       Jordan also argues that his exemplary record while in prison and evidence of
    changed character entitles him to post-conviction relief.
    ¶74.     The State points out that Jordan raised this same argument in his most recent direct
    appeal and that this Court denied relief. Jordan v. 
    State, 786 So. 2d at 1030
    . Therefore, this
    claim is barred by the doctrine of res judicata under the provisions of Miss. Code Ann. § 99-39-
    21(3).
    ¶75.      Notwithstanding the procedural bar, it is suggested that Jordan’s equal protection
    argument fails.     He does not raise specific details of his own re-sentencing that demonstrate
    discrimination.    He is not challenging a specific law or statute, nor is he asserting that he is a
    member of a class to which the death penalty is unfairly imposed. Instead, he is arguing that he
    is entitled to post-conviction relief because other inmates, once on death row, have been
    29
    resentenced to life in prison.      This Court has held that “...a defendant who alleges an equal
    protection violation has the burden of proving "the existence of purposeful discrimination."”
    Scott v. 
    State, 878 So. 2d at 993
    (citing Whitus v. Georgia, 
    385 U.S. 545
    , 550, 
    87 S. Ct. 643
    ,
    646, 
    17 L. Ed. 2d 599
    (1967)).         Likewise, Jordan must prove the purposeful discrimination "had
    a discriminatory effect" on him and the decision-makers in his case acted with discriminatory
    purpose. Wayte v. United States, 
    470 U.S. 598
    , 608, 
    105 S. Ct. 1524
    , 1531, 
    84 L. Ed. 2d 547
    (1985); Scott v. 
    State, 878 So. 2d at 993
    .
    ¶76.    Jordan offers no evidence specific to his own case that would support an inference that
    the decision-makers acted with a discriminatory purpose.          He asserts only that because others
    have been given life sentences, he should be given a life sentence. Jordan does not meet the
    burden of proving an equal protection violation. Therefore, this claim is without merit.
    ¶77.    Next, Jordan argues that it was error to allow the special prosecutor to prosecute this
    case.   He argues that the special prosecutor was not a disinterested prosecutor, rather the
    prosecutor had a personal vendetta against him. This claim has already been litigated and is now
    procedurally barred pursuant to § 99-39-21(3). As to the merits of this claim, we noted in
    Jordan’s most recent direct appeal, the Fifth Circuit has ruled that, where special prosecutors
    are appointed, district attorneys must “retain control of the prosecution.” Faulder v. Johnson,
    
    81 F.3d 515
    , 517 (5th Cir. 1996). In this petition as on direct appeal, Jordan fails to offer any
    proof that the Harrison County District Attorney’s Office did not retain control over the
    prosecution of this case. We have already found that during most of the pre-trial hearings and
    at trial, the District Attorney himself or one of his assistants was always present with the special
    30
    prosecutor. Jordan v. 
    State, 786 So. 2d at 1030
    .           Likewise, Jordan fails to demonstrate the
    “prosecutorial vindictiveness” about which he complains. This claim has no merit.
    ¶78.    Jordan argues that after four reversals of his death sentence and the passage of so many
    years since the crime was committed, he has been denied the ability to present a comprehensive
    case in mitigation. Specifically, Jordan points out that his parents are now deceased and he was
    denied the important emotional impact of their testimony in the sentencing trial.        Jordan cites
    cases dealing with the importance of presenting all relevant mitigating evidence and the right
    to compel the attendance of favorable witnesses. Taylor v. Illinois, 
    484 U.S. 400
    , 408, 108 S.
    Ct. 646, 
    98 L. Ed. 2d 798
    (1988); Lockett v. Ohio, 
    438 U.S. 586
    , 
    98 S. Ct. 2954
    , 
    57 L. Ed. 2d 973
    (1978); Jurek v. Texas, 
    428 U.S. 262
    , 
    96 S. Ct. 2950
    , 
    49 L. Ed. 2d 929
    (1976); Chambers
    v. Mississippi, 
    410 U.S. 284
    , 302, 
    93 S. Ct. 1038
    , 
    35 L. Ed. 2d 297
    (1973); Davis v. State, 
    512 So. 2d 1291
    , 1293 (Miss. 1987); Leatherwood v. State, 
    435 So. 2d 645
    , 650 (Miss. 1983).
    ¶79.    The State argues that despite the passage of so much time and the death of Jordan’s
    parents, trial counsel has been able to present all available mitigating evidence.     Transcripts of
    prior testimony are available and have been read in the subsequent proceedings where live
    testimony is not available.
    ¶80.    Jordan has had the benefit of all of the mitigating evidence that was available the first
    time he was convicted and sentenced to death.         Although, the form of some of the evidence is
    not the same as it was in the original presentation, it is still available and has been utilized to
    the best extent possible by defense counsel.      Likewise,    Jordan was convicted and sentenced
    to death in his very first trial in 1976 when, ostensibly, all of his mitigation witnesses were alive
    31
    and well.     Therefore, we find that Jordan fails to demonstrate any actual prejudice from the
    unavailability of his parents’ live testimony. This claim has no merit.
    ¶81.    Next, Jordan asserts that a statement given to Officer Albritton should have been
    excluded because it was given after Jordan’s arraignment proceedings in which he asked that an
    attorney be appointed to represent him. Jordan cites Michigan v. Jackson, 
    475 U.S. 625
    , 
    106 S. Ct. 1404
    , 
    89 L. Ed. 2d 631
    (1986), which held that if police initiate interrogation after
    defendant’s assertion, at arraignment or similar proceedings, of his right to counsel, any waiver
    of defendant’s right to counsel for that police-initiated interrogation is invalid.
    ¶82.    Jordan has challenged the admissibility of this same statement from the very beginning
    of this long series of appeals. Both this Court and the federal courts have found this     claim to
    be without merit.      In this Court’s most recent opinion, in 2001, we expressly considered the
    Michigan v. Jackson decision and decided that the issue of whether the tape recorded
    statement given to Officer Albritton, post-arraignment and without appointed counsel present,
    was without merit.
    Despite his allegations that his case is not yet final, Jordan has received
    four appellate reviews of this issue, and we have now twice decided that the issue
    is procedurally barred. Most importantly, the issue is harmless error at best. Our
    initial decision on this issue showed the admission of that statement to Officer
    Allbritton was harmless since it was merely cumulative of the properly obtained
    statement that Jordan gave to FBI Agent Watts. 
    Jordan, 365 So. 2d at 1203
    .
    Jordan v. 
    State, 786 So. 2d at 1020
    .
    ¶83.    Lastly, Jordan simply says that in light of the cumulative effect of the errors, he is
    entitled to post-conviction relief.
    32
    ¶84.     Where there are no individual errors, there can be no cumulative error. Foster v. State,
    
    639 So. 2d 1263
    , 1303 (Miss. 1994). This Court has previously recognized that "[w]here there
    is no reversible error in any part, .... there is no reversible error to the whole." Doss v. State,
    
    709 So. 2d 369
    , 401 (Miss. 1996) (quoting McFee v. State, 
    511 So. 2d 130
    , 136 (Miss. 1987).
    This Court has further noted, "A criminal defendant is not entitled to a perfect trial, only a fair
    trial." McGilberry v. State, 
    741 So. 2d 894
    , 924 (Miss. 1999), citing Sand v. State, 
    467 So. 2d 907
    , 911 (Miss. 1985).       The record indicates that Jordan received a fair trial.   This issue is
    without merit.
    CONCLUSION
    ¶85.     We deny Jordan’s application for leave to file a petition for post-conviction relief in the
    trial court.
    ¶86.     LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.
    SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND
    RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
    33