Willie Jerome Manning v. State of Mississippi ( 1994 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-DR-00230-SCT
WILLIE JEROME MANNING a/k/a “FLY”
v.
STATE OF MISSISSIPPI
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 11/08/1994
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION
COUNSEL
BY: DAVID VOISIN
ROBERT M. RYAN
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
MARVIN L. WHITE, JR.
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - POST
CONVICTION
DISPOSITION: PETITION FOR POST-CONVICTION RELIEF,
DENIED - 08/04/2005
MOTION FOR REHEARING FILED: 06/18/2004
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion
is substituted therefor.
¶2. Willie Jerome Manning was convicted of capital murder of Jon Steckler and Tiffany
Miller in Oktibbeha County in 1994. He was sentenced to death one day later, on November
8, 1994. Manning’s conviction and sentence were affirmed by this Court in Manning v. State,
726 So. 2d 1152 (Miss. 1998). The motion for rehearing was denied on October 8, 1998. The
United States Supreme Court denied Manning’s petition for writ of certiorari on April 5, 1999.
Manning v. Mississippi, 526 U.S. 1056, 119 S. Ct. 1368, 143 L. Ed. 2d 528 (1999).
¶3. After denial of the petition for writ of certiorari, in accordance with Jackson v. State,
732 So. 2d 187 (Miss. 1999), we remanded the matter to the Circuit Court of Oktibbeha
County for appointment of post-conviction counsel. The circuit court then appointed the
Office of Capital Post-Conviction Counsel (OCPCC) to represent Manning in post-conviction
relief proceedings.
¶4. We find no merit in Manning’s petition to proceed in the trial court on post-conviction
relief. Therefore, the petition for post-conviction relief is denied.
FACTUAL BACKGROUND
¶5. On December 11, 1992, Tiffany Miller and Jon Steckler, both Mississippi State
University students, were shot and killed in Oktibbeha County, Mississippi. They were last seen
leaving Jon’s fraternity house around 1:00 a.m. on December 11, 1992. Tiffany drove a Toyota
MR2 sports car and lived off campus at the University Hills Trailer Park.
¶6. A motorist discovered Jon Steckler lying on the right side of Pat Station Road at
approximately 2:15 a.m. When Deputy Sheriff Robert Elmore arrived at the scene at 2:33 a.m.,
Jon still had a pulse. While waiting for an ambulance, Deputy Elmore noticed drag marks
through the gravel road into the woods, and there he discovered Tiffany’s body. She had been
shot twice in the face at close range. Jon was shot once in the back of the head and had
extensive abrasions occurring prior to his death, which were consistent with being run over by
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a car at low speed. Tiffany’s car was found the next morning parked in front of apartments on
Old Mayhew Road, approximately one hundred yards from her residence at the University Hills
Trailer Park.
¶7. In the early hours of the morning of the murder, John Wise, Jon Steckler’s fraternity
brother, went to his car which was parked outside the fraternity house. At that time, he did not
notice anything suspicious and locked his car. Later in the morning, Wise found that his car had
been broken into and several items stolen. Several of the stolen items were later linked to
Willie Jerome Manning through testimony of several of the State’s witnesses. One of the
items reported stolen from Wise’s car was a gold-colored token. Subsequently, a gold token,
very similar to the one reported stolen from Wise’s car, was recovered at the murder scene.
¶8. The prosecution initially indicted Manning for murder in the course of a kidnaping, but
later amended the indictment, substituting a robbery charge. The State introduced evidence
purporting to link the stolen items, including a leather jacket, a CD player, the gold token, and
a silver engraved beverage holder to Manning. The State also introduced testimony that
Manning attempted to sell a watch and ring matching the description of the watch and ring that
Jon Steckler was wearing the night he was killed. Much of the testimony regarding the stolen
items came from Manning’s former girlfriend, Paula Hathorn. More testimony came from two
jailhouse informants who testified that, while incarcerated, Manning admitted killing the
students and selling the gun he used.
¶9. Manning argues that the lack of physical evidence linking him to the crime, together
with questionable testimony from witnesses was inadequate to support a capital murder
conviction. There were no matching fingerprints or footprints at the scene linked to Manning.
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Manning asserts that the testimony of Hathorn was not credible since she was induced by a
$25,000 reward for solving the crime and the State’s lenient treatment on a number of charges
pending against her. Manning seeks to discredit the testimony of the jailhouse informants,
noting that one of the informants initially gave a false statement to the police implicating two
other suspects.
DISCUSSION
¶10. This Court has long recognized that post-conviction relief actions have become part of
the death penalty appeal process. Jackson v. Stat e, 732 So. 2d 187, 190 (Miss. 1999). Our
standard of review of capital convictions and sentences is one of “heightened scrutiny” under
which “all doubts are to be resolved in favor of the accused.” Flowers v. State, 842 So. 2d 531,
539 (Miss. 2003) (citing Balfour v. State, 598 So. 2d 731, 739 (Miss. 1992)); Williamson v.
State, 512 So. 2d 868, 872 (Miss. 1987) (citing Irving v. State, 361 So. 2d 1360, 1363 (Miss.
1978)).
¶11. In his Petition for Post-Conviction Relief, Manning raises numerous claims. The
majority of those claims relate to the State’s failure to disclose evidence and claims of
ineffective assistance of counsel. While the Court has considered all of Manning’s claims
separately, the claims have been combined for clarity as: I) failure to disclose exculpatory
evidence; II) polygraph examination; III) ineffective assistance of counsel; and, IV) cumulative
errors.
I. Exculpatory Evidence
¶12. Manning argues that the State presented testimony from Frank Parker that included
numerous lies and misrepresentations; that the State knew or should have known that Parker
4
was lying; and, that despite exercising due diligence defense counsel was not able to uncover
impeachment material, the truth about Parker’s pending charges in Texas, or other evidence of
his motivation for testifying. Manning asserts that Parker lied about pending criminal charges
against him and lied as to the severity of those charges, and that he denied the fact that his
testimony was motivated by the possibility of reward money. Further, Manning asserts that the
fact was never disclosed that authorities in Mississippi had actually shown Parker crime scene
photos and promised to help him with the criminal charges pending in Texas. Manning argues
that Parker’s testimony was crucial to the prosecution and was the only link between Manning
and the gun used to kill the students. Manning argues that the State knowingly presented false
testimony, and that due to the crucial nature of this testimony, the State cannot show beyond
a reasonable doubt that the use of the false testimony was harmless.
¶13. Manning points out that Fifth Circuit case law and precedent from the U.S. Supreme
Court mandates that a “a new trial is required if the false testimony could have. . . in any
reasonable likelihood affected the judgment of the jury.” Barrientes v. Johnson, 221 F.3d 741,
756 (5th Cir. 2000) (citing Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959) and Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972)). Manning also cites Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963), holding that the suppression of favorable evidence is a violation of the defendant’s
due process rights. Favorable evidence includes that which is either directly exculpatory or
items which can be used for impeachment purposes. Giglio, 405 U.S. at 153-155, 92 S. Ct.
763.
5
¶14. The State asserts that this allegation was addressed on direct appeal and is now
procedurally barred. The State argues that the existence and nature of the charges pending
against Parker were brought out on direct examination and, in more detail, on
cross-examination. The State also points out the affidavits that Manning now uses to
purportedly show that Parker had a deal with the State for his testimony, reveal instead that
Mississippi authorities never made an explicit promise to help Parker with the criminal
charges in Texas until after he had testified. The State also asserts that Manning fails to show
actual prejudice sufficient to overcome this waiver. Wiley v. State, 750 So. 2d 1193, 1210
(Miss. 1999). Furthermore, the State argues that Manning fails to establish that this material
to which he points is “exculpatory” material under this Court’s analysis of Brady, citing Todd
v. State, 806 So. 2d 1086, 1091-92 (Miss. 2001).
¶15. In determining whether a Brady violation has occurred, thus mandating a new trial, this
Court applies the four-prong test articulated in King v. State, 656 So. 2d 1168, 1174
(Miss.1995) (adopting four-prong test from United States v. Spagnoulo, 960 F.2d 990, 994
(11th Cir. 1992)). The defendant must prove: (a) that the State possessed evidence favorable
to the defendant (including impeachment evidence); (b) that the defendant does not possess the
evidence nor could he obtain it himself with any reasonable diligence; (c) that the prosecution
suppressed the favorable evidence; and (d) that had the evidence been disclosed to the defense,
a reasonable probability exists that the outcome of the proceedings would have been different.
Todd v. State, 806 So. 2d at 1092.
¶16. Manning argues that U.S. Supreme Court precedent instructs the State that its knowing
use of or its failure to correct false testimony, or its presentation of evidence which creates
6
a materially false impression of the evidence, violates a defendant’s right to due process.
Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967); Napue v. Illinois, 360 U.S.
264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103, 2
L. Ed. 2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935).
Manning further asserts that the prosecutor knew or should have known that Hathorn was not
truthful, but he pressed ahead to rehabilitate her credibility and tarnish the jury’s view of the
credibility and competence of the defense.
¶17. Manning also argues that the State had a duty to disclose any agreements or material
assurance that it had made to Hathorn in exchange for her testimony and that the State failed
to fully disclose the deal that had been made with Hathorn as to her pending charges. Manning
contends that the failure to disclose this information impacted his ability to challenge
Hathorn’s credibility. The U.S. Supreme Court has held that when the reliability of a given
witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting
credibility especially evidence of any understanding or agreement as to a future prosecution,
violates due process. Giglio v. United States, 405 U.S. at 154-55, 92 S. Ct. 763. Manning also
argues a violation of Brady for the State’s failure to disclose information associated with the
Hathorn’s testimony. Manning asserts that the State failed to disclose the true nature of Paula
Hathorn’s position as a state agent and withheld tape recordings between Hathorn and Manning
that were made at the insistence of and by law enforcement officers. Hathorn was provided a
list of topics to cover and was instructed to telephone Manning. Manning asserts that the
transcripts of those telephone conversations show that Hathorn failed to elicit any
incriminating statements from Manning and indicate that several of the statements made by
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Hathorn directly contradict her subsequent trial testimony. Manning also argues that it was
never disclosed to the defense that the State threatened to charge Hathorn as an accessory after
the fact to murder. All of these things, Manning argues, could have been used for impeachment
purposes and to illuminate Hathorn’s motivation for testifying.
¶18. The State argues that Manning fails to back up this claim that there are cassette tapes
and transcripts related to Hathorn’s testimony. It argues that there are no exhibits attached to
affidavits that these items were found. It also contradicts Manning’s claim that the defense was
not able to impeach Hathorn as to her contradictory statements where the trial transcripts
indicate that this very information was brought out at trial and on direct appeal. Furthermore,
the State notes that Hathorn’s relationship with the sheriff’s department was also brought out
at trial and on direct appeal.
¶19. Pursuant to an Order issued by this Court on December 2, 2004, Circuit Judge Lee J.
Howard, the same judge who presided over Manning’s initial trial, conducted an evidentiary
hearing on January 12, 2005, to determine if the information contained in the cassette tapes
and transcripts were exculpatory as to Manning, such that a new trial would be warranted. At
the conclusion of the evidentiary hearing, the trial court took this matter under advisement and
allowed counsel for the State and Manning to submit memoranda of law. On April 22, 2005,
the trial court entered its “Evidentiary Hearing Order” wherein it addressed three questions:
“(1) Did the State `suppress’ evidence? (2) Is the evidence actually Brady material? (3) Is there
a reasonable probability that a different verdict would have resulted if the evidence had been
8
used?”1 The trial court held that no Brady violation occurred and that a new trial was not
warranted. The trial court first determined that no “factual basis exist[ed] to prove that the State
suppressed the existence of tape-recorded telephone communications between [Manning] and
his girlfriend, Paula Hathorn.” Testimony reflected that the alleged suppressed evidence was
included with all other physical evidence made available to Manning’s attorneys. Dolph Bryan,
Sheriff of Oktibbeha County, testified that there was a voluminous amount of evidence
collected by his department. Defense counsel could only argue that he believed the tapes were
not made available to counsel because had they been made available, he would have used them
at trial to impeach Paula Hathorn.
¶20. Having listened to the cassette tapes and read the transcripts of the recorded
conversations, the trial court determined that very little impeachment value could be attributed
to the conversations found on the cassette tapes. The trial court found that the conversations
were not “relevant, inculpatory, exculpatory, or useful for impeachment” because Hathorn was
merely repeating questions to Manning that had been scripted by the Sheriff’s Department.
Concerning the third question, the trial court determined, after having heard testimony from
both parties and having listened to the recorded conversations on the cassette tapes, that
“nothing contained therein would be of sufficient impeachment value so as to give rise to a
1
This evidentiary hearing order, along with the supplemental record from the evidentiary hearing, has
been submitted by the trial court to this Court, consistent with our prior order. Upon this Court’s receipt of
the supplemental record, Manning, through counsel, filed a motion to reset briefing schedule, which was
denied by this Court. Likewise, Manning’s counsel filed additional pleadings entitled “Motion to Amend
Petition to Conform to Evidence Introduced by the State at Evidentiary Hearing (with an attached proposed
`Second Amendment to the Petition for Post-Conviction Relief’),” and “Petitioner’s Objections to the Circuit
Court’s `Evidentiary Hearing Order.’” For the reasons hereinafter discussed, the motion to amend, and the
objections, are denied, as reflected by this opinion and by separate orders this day entered.
9
reasonable probability that a different verdict would have resulted if this evidence had been
used during the original trial of [Manning].”
¶21. Manning’s protestations notwithstanding, we cannot find fault with the findings of the
trial court. Defense counsel was given every opportunity to listen to the tapes and view the
transcripts, as all evidence was made available to defense counsel, and no evidence was
intentionally withheld by the State.2 Additionally, when applying the four-part test to determine
if Brady violations occurred in Manning’s case, the trial court finding on this issue is
supported by the record. Todd v. State, 806 So. 2d at 1092. Therefore, we find this issue to be
without merit.
II. Polygraph Evidence
¶22. Earl Jordan, a convicted burglar, was in jail at the same time as Manning. Jordan had
given statements to the police implicating two other men in the murders of Tiffany and Jon.
Investigators later ruled out the possibility that the others were involved in the crime. Jordan
then told the authorities that Manning had confessed to murdering the students. The State
offered Jordan’s testimony at trial. On cross-examination, Jordan admitted that he had
previously implicated others for the same crime and that he was hoping for favorable treatment
from the State on his pending charges. The cross-examination also highlighted some
2
In his motion to amend, proposed second amendment and objections to the trial court’s evidentiary
hearing order, Manning opines that the record does not support the trial court’s finding that the cassette tapes
and transcripts of the Hathorn/Manning telephone conversation were actually included in the large amount
of evidence which the State, directly or through law enforcement, made available for review by defense
counsel during the discovery process. However, from the entire record in this case, including the
supplemented record, the trial court’s findings of fact are supported by a record sufficient to withstand attack
under the appropriate “manifestly wrong/clearly erroneous” standard of review.” Miss. Dep’t. of Transp.
v. Johnson, 873 So. 2d 108, 111 (Miss. 2004); Vaughn v. Vaughn, 798 So. 2d 431, 433-34 (Miss. 2001). See
also, Sturdivant v. State, 745 So. 2d 240, 243-44 (Miss. 1999).
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discrepancies in Jordan’s testimony and the facts surrounding the crime. Then during the
re-direct examination, the prosecutor asked Jordan whether he volunteered to take a polygraph
on the information that he provided in this statement and Jordan answered affirmatively.
[The prosecution on re-direct] Now you were questioned at length about your
motives, you were questioned at length about the substance of what you testified
to. Mr. Jordan, didn’t you volunteer to take a lie detector test on this?
¶23. The defense objected, and the trial court initially sustained that objection. Moments
later the trial court reversed its decision, allowing the State to question Jordan about his
volunteering to take the polygraph.
[The prosecution after the objection was overruled]: Mr. Jordan, did you
volunteer or agree to take AAA a lie detector test?
A: Yes, I did.
The trial court then refused to allow defense counsel to conduct a re-cross-examination of
Jordan concerning his statement about the lie detector test.
¶24. On Manning’s direct appeal, this Court found no error in the prosecutor’s questions
about the polygraph and held that the questioning was proper since the State made no attempt
to disclose whether Jordan had actually taken the polygraph and/or the results of the test.
Manning v. State, 726 So. 2d at 1179. This decision was based upon Conner v. State, 632
So. 2d 1239, 1257-58 (Miss.1993), in which we held that the trial court did not abuse its
discretion when it allowed testimony concerning the willingness of a witness for the State to
take a lie detector test polygraph test in order to rehabilitate that witness’ testimony. With
respect to the polygraph test, Manning now argues that he is entitled to a new trial on three
bases.
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¶25. First, Manning argues that this Court has reversed its course since his direct appeal and
has now held that questioning a witness about his or her willingness to take a polygraph is
improper. Weatherspoon v. State, 732 So. 2d 158 (Miss. 1999). In Weatherspoon, the
defendant wanted to testify that he had volunteered to take a polygraph test. The trial court
refused to allow that testimony and this Court affirmed noting that “it should be made clear that
any evidence pertaining to a witness’s offer to take a polygraph, refusal to take a polygraph test,
the fact that a witness took a polygraph test or the results of a polygraph test is inadmissible
at trial by the State or by the defense.” Id. at 163. In Weatherspoon, this Court specifically
noted Manning’s case:
Recently, in Manning v. State, 726 So. 2d 1152 (Miss. 1998), relying on the
Conner decision, this Court held that the testimony of State’s witness Earl
Jordan that he had volunteered to take a polygraph examination “was proper
redirect after Jordan’s credibility had been attacked on cross-examination by the
defense.” Manning, 726 So. 2d at 1179. Upon careful consideration and further
review, we find that testimony pertaining to a witness’s offer to take a polygraph,
whether it be a witness for the State or the defense, is not admissible at trial. To
the extent that this holding affects Conner v. State, Lester v. State[, 692 So. 2d
755 (Miss. 1997)], and Manning v. State, cited supra, those cases are overruled.
732 So. 2d at 162.
¶26. Second, Manning argues that because he was not allowed to cross-examine Jordan after
the reference was made to the polygraph test, and that because there was no mention of the
polygraph made in the mandatory discovery, he had no opportunity to rebut this evidence.
¶27. Finally, Manning argues that he was denied his full right to discovery about whether
Jordan took a polygraph and the results of such test. He contends that he was unaware of a
polygraph examination until the information was first elicited by the State on the re-direct
examination of Jordan. Manning asserts that because of a lack of notice and discovery, he does
12
not know whether a polygraph examination was actually administered to Jordan and, if so, the
results of such an examination. Manning argues that while the prosecution knew that the results
of such an examination would be inadmissible, the prosecution used the question about
Jordan’s willingness to take a polygraph examination as a way of knowingly creating a false
impression of the evidence for the jury.
¶28. With respect to the discovery issue on the polygraph examination, Manning cites to
cases by the U.S. Supreme Court holding that the State’s knowing use of such evidence, or its
failure to correct false testimony or its presentation of evidence which creates a materially
false impression of the evidence, violates the defendant’s right to due process. Miller v. Pate,
386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
1173, 3 L. Ed. 2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103, 2 L. Ed. 2d 9
(1957); Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935).
¶29. At the time of Manning’s trial, Conner v. State, 632 So. 2d 1239 (Miss. 1993), was the
precedent of this Court regarding the admissibility of polygraph testimony. In Conner, the
prosecution made two references to the polygraph: first, during the direct examination of its
star witness, Detective James Brown, and second, during closing arguments. Prior to Conner,
this Court had held that:
neither the results of a lie detector test nor the fact that one was taken is
admissible as evidence, and that the introduction of such evidence constitutes
reversible error. See Pennington v. State, 437 So. 2d 37, 40 (Miss. 1983);
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); Mattox v. State, 240 Miss. 544, 128 So. 2d
368 (1961). However, where the focus is not on the exam itself but instead on
one’s willingness or reluctance to submit to a polygraph exam, the Court has
arrived at a different conclusion.
13
In Stringer v. State, 454 So. 2d 468 (Miss. 1984), cert. denied, 469 U.S. 1230,
105 S. Ct. 1231, 84 L. Ed. 2d 368 (1985), we held that
the mere mention of the failure to submit to an examination could
not be reversible error under the record in this case. It was
inconsequential in the case compared with all the other evidence
placed before the jury. Further bolstering of this opinion is that
we are not dealing with the attempted introduction of the
results of a polygraph examination, only the refusal to take
one for whatever reason....
Stringer, 454 So. 2d at 474-75; see also Garrett v. State, 549 So. 2d 1325,
1330-31 (Miss. 1989) (where document disclosing defendant’s willingness to
take lie detector test was inadvertently delivered to jury, Court ruled that, under
Stringer, no reversible error occurred).
It is of course the rule in virtually all jurisdictions that a witness’s unimpeached
or unquestioned credibility may not be bolstered by any means, including
references to polygraphic evidence. See, e.g., Tiner v. State, 214 Miss. 551, 59
So. 2d 287 (1952) (testimony supporting veracity of witness is inadmissible
where veracity of witness has not been assailed); Sparks v. State, 820 S.W.2d
924, 929 (Tex.Ct.App.1991) (prosecution impermissibly bolstered witness’s
testimony by asking, “Did you agree to take a polygraph examination?” where
only purpose of question was to add credence to witness’s earlier, unimpeached
testimony); United States v. Vigliatura, 878 F.2d 1346, 1349 (11th Cir.1989)
(“a witness’s or defendant’s willingness to submit to a polygraph examination
is inadmissible to prevent bolstering of credibility”).
Conner, 632 So. 2d at 1257-58 (emphasis in original). However, this Court announced a new
rule of procedure when it interpreted Miss. R. Evid. 608(b) which stated that once a witness’s
integrity has been impugned:
[s]pecific instances of the conduct of a witness, for the purpose of ... supporting
his credibility, ... may ... in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the
witness (1) concerning his character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified.
Conner, 632 So. 2d at 1259. We determined that the second exception applied to Conner’s
case. The defense had attacked the State’s witness regarding his credibility. Therefore, the
14
State in an attempt to rehabilitate this witness, questioned the detective regarding the witness’s
agreement to take a polygraph exam. We held that:
Although this Court has never explicitly held that references to polygraph tests
are admissible when used to rehabilitate an impeached witness, the Court did
find in Pittman v. State, 236 Miss. 592, 111 So. 2d 415 (1959), that a reference
to such a test on redirect examination, where the results of the test were not
disclosed, did not amount to reversible error. See Pittman, 236 Miss. at 597-
98, 111 So. 2d at 417. In light of Stringer, Pittman, and M.R.E. Rule 608, we
find that the trial court did not abuse its discretion by permitting the prosecution
to introduce evidence concerning Earnest Stevens’ agreement to take a lie
detector test.
Conner, 632 So. 2d at 1259. Therefore, at the time of Manning’s 1994 trial, the trial court
properly followed this Court’s precedent in allowing the State to attempt to rehabilitate a
witness by questioning him regarding his agreement to take a polygraph test, and we upheld the
trial court’s action on direct appeal. Manning, 726 So. 2d at 1179.
¶30. In 1999, five years after Manning’s trial, this Court handed down Weatherspoon which
overruled Conner and the previous Manning decision. In Weatherspoon, during a bench
conference, defense counsel informed the trial court that he was going to ask the defendant to
testify to the fact that he offered to take a polygraph test. The State objected, and the trial court
sustained the objection, finding the proffered testimony would not be proper evidence. Id. at
162. We agreed with the trial court and held:
Upon careful consideration and further review, we find that testimony pertaining
to a witness’s offer to take a polygraph, whether it be a witness for the State or
the defense, is not admissible at trial. To the extent that this holding affects
Conner v. State, Lester v. State, [692 So. 2d 755 (Miss. 1997)] and Manning
v. State, [] those cases are overruled.
Weatherspoon, 732 So. 2d at 162.
15
¶31. Therefore, today’s question before this Court, is whether Weatherspoon may be applied
retroactively. Manning’s direct appeal is final and the case sub judice is before us on a motion
for post-conviction relief. In Nixon v. State, 641 So. 2d 751 (Miss. 1994), this Court was
faced with a similar situation. Nixon was convicted of capital murder and was sentenced to
death. His conviction and sentence were affirmed on direct appeal. Nixon then filed a petition
for post-conviction relief on the grounds that the intervening decision of Powers v. Ohio, 499
U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), applied retroactively. We disagreed and
denied his petition.
¶32. On direct appeal, Nixon argued that the State’s discriminatory use of peremptory
challenges violated his constitutional rights. Nixon, 641 So. 2d at 753. We concluded that
because Nixon was white, he could not object to the exclusion of black jurors. Id. However,
in Powers, the United States Supreme Court held that “a criminal defendant may object to a
prosecutor’s discriminatory use of peremptory challenges even though the defendant was not
of the same race as the challenged juror.” Nixon, 641 So. 2d at 753. Therefore, on motion for
PCR, Nixon argued that this presented a new rule of federal constitutional law which applied
retroactively. Id. Thus, this Court had to decide whether Nixon was procedurally barred from
raising this issue or whether this decision could be applied retroactively.
¶33. In Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1075-76, 103 L. Ed. 2d 334, 356
(1989), the United States Supreme Court held, by a plurality vote3 that “a new rule of
constitutional law will not be applied retroactively to a case on habeas review unless it falls
3
The plurality’s decision was approved by the majority in Sawyer v. Smith, 497 U.S. 227, 110 S.Ct
2822, 111 L. Ed. 2d 193 (1990).
16
within one of two limited exceptions.” “The first exception suggested by Justice Harlan--that
a new rule should be applied retroactively if it places ‘certain kinds of primary, private
individual conduct beyond the power of the criminal law-making authority to proscribe,’” and
the second exception is “reserved for watershed rules of criminal procedure.” Id. In approving
this plurality decision, the United States Supreme Court later held that:
The principle announced in Teague serves to ensure that gradual developments
in the law over which reasonable jurists may disagree are not later used to upset
the finality of state convictions valid when entered. This is but a recognition that
the purpose of federal habeas corpus is to ensure that state convictions comply
with the federal law in existence at the time the conviction became final, and not
to provide a mechanism for the continuing reexamination of final judgments
based upon later emerging legal doctrine.
Sawyer, 497 U.S. at 234, 110 S.Ct. at 2827, 111 L. Ed. 2d at 206. Finding that this rationale
was consistent with the Mississippi Uniform Post-Conviction Collateral Relief (“PCR”) Act,
this Court stated that:
Accordingly, in determining whether a prisoner may avail himself of an
intervening decision, this Court applies our PCR act to determine whether an
issue raised on PCR is one warranting relief from waiver based on cause and
actual prejudice, as contemplated by § 99-39-21(1), or one not procedurally
barred, although litigated at trial and on direct appeal, because of the existence
of cause and actual prejudice, as contemplated by § 99-39-21(2). Application
of this test is based on state law grounds. See Miss. Code Ann. §§ 99-39-3, 99-
39-21(1), and 99-39- 21(2) (Supp.1993).
Nixon, 641 So. 2d at 754-55 (footnotes omitted). As to the cause element of the PCR Act, we
found that Powers did create a new rule of law and that prior to the new rule, there was no
indication that Batson would be changed; therefore, the showing of cause had been met by the
intervening decision. Nixon, 641 So. 2d at 755. We relied heavily on Teague in determining
if there was a showing of actual prejudice. We determined that pursuant to Teague the
17
defendant would have to show actual prejudice within one of the two exceptions enumerated
by the Supreme Court.
The first Teague exception is not met in this case because “[a]pplication of the
fair cross section requirement to the petit jury would not accord constitutional
protection to any primary activity whatsoever.” Accord Teague, 489 U.S. at
311, 109 S.Ct. at 1075-76, 103 L. Ed. 2d at 356. Stated differently, the new rule
does not place a category of primary conduct beyond the reach of the criminal
law nor does it prohibit punishment for a class of defendants. Teague, 489 U.S.
at 311, 109 S.Ct. at 1075-76, 103 L. Ed. 2d at 356. The second Teague exception
affords Nixon no comfort because it is limited to those new procedures without
which the likelihood of an accurate conviction is seriously diminished. Restated,
“absence of a fair cross section on the jury venire does not undermine the
fundamental fairness that must underlie a conviction or seriously diminish the
likelihood of obtaining an accurate conviction.” Id. at 315, 109 S.Ct. at 1078,
103 L. Ed. 2d at 359. The Teague Court concluded that “a rule requiring that petit
juries be composed of a fair cross section of the community would not be a
‘bedrock procedural element’ that would be retroactively applied under the
second exception.” Teague, 489 U.S. at 315, 109 S. Ct. at 1078, 103 L.Ed.2d at
359.
Nixon, 641 So. 2d at 755. Therefore, we held that because there was no actual prejudice
suffered by Nixon, he was not entitled to relief pursuant to the Act. Id. Further, we held that
“the Powers decision should not be applied retroactively to Nixon’s final conviction as the
Powers rule is not a prerequisite to fundamental fairness of the type that may come within the
exception.” Id.
¶34. The United States Supreme Court has once again addressed this issue. In Schriro v.
Summerlin, 542 U.S.348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), the Supreme Court held
that the decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L.Ed.2d. 556 (2002),
was procedural and did not apply to death penalty cases already final on direct appeal, nor did
18
it announce a watershed rule of criminal procedure. Therefore, the Ninth Circuit’s invalidation
of the defendant’s death sentence was reversed.
¶35. In Schriro, the Supreme Court stated that:
When a decision of this Court results in a “new rule,” that rule applies to all
criminal cases still pending on direct review. Griffith v. Kentucky, 479 U.S.
314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). As to convictions that are
already final, however, the rule applies only in limited circumstances. New
substantive rules generally apply retroactively. This includes decisions that
narrow the scope of a criminal statute by interpreting its terms, see Bousley v.
United States, 523 U.S. 614, 620-621, 118 S. Ct. 1604, 140 L. Ed. 2d 828
(1998), as well as constitutional determinations that place particular conduct or
persons covered by the statute beyond the State’s power to punish, see Saffle
v. Parks, 494 U.S. 484, 494-495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990);
Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)
(plurality opinion). Such rules apply retroactively because they “necessarily
carry a significant risk that a defendant stands convicted of ‘an act that the law
does not make criminal’” or faces a punishment that the law cannot impose upon
him. Bousley, supra, at 620, 118 S. Ct. 1604 (quoting Davis v. United States,
417 U.S. 333, 346, 94 S. Ct. 2298, 41 L. Ed. 2d 109 (1974)).
New rules of procedure, on the other hand, generally do not apply retroactively.
They do not produce a class of persons convicted of conduct the law does not
make criminal, but merely raise the possibility that someone convicted with use
of the invalidated procedure might have been acquitted otherwise. Because of
this more speculative connection to innocence, we give retroactive effect to
only a small set of “‘watershed rules of criminal procedure’ implicating the
fundamental fairness and accuracy of the criminal proceeding.” Saffle, supra,
at 495, 110 S. Ct. 1257 (quoting Teague, 489 U.S., at 311, 109 S. Ct. 1060).
That a new procedural rule is “fundamental” in some abstract sense is not
enough; the rule must be one “without which the likelihood of an accurate
conviction is seriously diminished.” Id., at 313, 109 S. Ct. 1060 (emphasis
added). This class of rules is extremely narrow, and “it is unlikely that any ...
‘ha[s] yet to emerge.’” Tyler v. Cain, 533 U.S. 656, 667, n. 7, 121 S. Ct. 2478,
150 L. Ed. 2d 632 (2001) (quoting Sawyer v. Smith, 497 U.S. 227, 243, 110
S. Ct. 2822, 111 L. Ed. 2d 193 (1990)).
Schriro, 124 S. Ct. at 2522-23.
19
¶36. A rule is procedural if that rule “regulates the manner of determining the defendant’s
culpability.” Id. at 2523. However, a rule is substantive if that rule “alters the range of conduct
or the class of persons that the law punishes.” Id. Because Ring held that “a sentencing judge,
sitting without a jury, [may not] find an aggravating circumstance necessary for imposition of
the death penalty,” Ring's holding is classified as procedural. Ring, 536 U.S. at 609, 122 S. Ct.
2428. “Ring altered the range of permissible methods for determining whether a defendant's
conduct is punishable by death, requiring that a jury rather than a judge find the essential facts
bearing on punishment. Rules that allocate decisionmaking authority in this fashion are
prototypical procedural rules. . . .” Schriro, 124 S. Ct. at 2523.
¶37. As to the watershed requirement, the Supreme Court found that the “evidence [was]
simply too equivocal to support the conclusion” that “judicial factfinding so ‘seriously
diminishe[s]’ accuracy that there is an ‘impermissibly large risk’ of punishing conduct the law
does not reach.” Id. at 2525. Therefore, the Supreme Court held that “Ring announced a new
procedural rule which did not retroactively apply to cases already final on direct review.” Id.
at 2526. Applying the rules found in Teague, Schriro and Nixon, we find that Weatherspoon
announced a procedural rule which did not retroactively apply to cases already final on direct
review.
¶38. As in Nixon, Weatherspoon did create a new rule of law, finding that polygraph test
evidence was not admissible. During Manning’s trial, the State was allowed on re-direct
examination to question its witness, Earl Jordan, as to whether he volunteered to take a
polygraph exam. This was the only time this test was mentioned by the State. However,
20
Manning, through counsel, got before the jury on three different occasions that one of
Manning’s witnesses, Carl Rambus, had agreed to take a polygraph examination. Rambus had
testified that Manning was not the person who had attempted to sell him the ring (identified as
Jon’s high school class ring). On re-direct examination by defense counsel, Rambus stated he
had agreed to take a polygraph examination. During defense counsel’s cross-examination,
Detective David Lindley testified that Rambus had agreed to take a polygraph examination.
During defense counsel’s cross-examination, Sheriff Dolph Bryan testified that Rambus had
agreed to take a polygraph examination. During defense counsel’s cross-examination,
Detective Gary Turner could not confirm that Rambus had agreed to take a polygraph
examination. During the closing argument to the jury, defense counsel argued, inter alia:
You heard Carl Rambus or heard the sheriff and the deputy, the detective, David
Lindley, all testify Carl Rambus agreed to take a polygraph.
Thus, the jury heard Manning’s counsel make references on five different occasions that
Manning’s witness, Carl Rambus, had offered to take a polygraph examination.
¶39. Without question, Weatherspoon created a new rule of law concerning the admissibility
of polygraph evidence, or references to polygraph examinations, and that prior to the new rule,
there was no indication that our rule as pronounced in Conner would be changed. Thus, the
element of cause was met by the intervening decision.
¶40. As to actual prejudice, neither of the two elements enumerated in Teague are met.
First, “the new rule does not place a category of primary conduct beyond the reach of the
criminal law nor does it prohibit punishment for a class of defendants.” 489 U.S. at 311, 109
S. Ct. at 1075-76, 103 L.Ed.2d at 356. Second, this procedural rule does not diminish the
21
likelihood of an accurate conviction. Id. at 315, 109 S.Ct. at 1078, 103 L. Ed. 2d at 359.
Because no actual prejudice is suffered by Manning, he is afforded no relief pursuant to the
Act.
¶41. Because Weatherspoon was a procedural rule and it did not announce a watershed rule
of criminal procedure, its holding may not be retroactively applied to Manning’s case which
was final on direct review. Therefore, this issue is without merit.
III. Ineffective Assistance of Counsel
¶42. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S.
668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A claimant must demonstrate that counsel’s
performance was deficient and that the deficiency prejudiced the defense of the case. Id. at
687, 104 S. Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary process that renders
the result unreliable.” Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984) (citing Strickland,
466 U.S. at 687, 104 S. Ct. 2052). The focus of the inquiry is on whether counsel’s assistance
was reasonable considering all the circumstances. Id. A reviewing court must strongly presume
that counsel’s conduct falls within a wide range of reasonable professional assistance. Further,
one who claims ineffective assistance must overcome another presumption that the challenged
act or omission “might be considered sound trial strategy.” Id. at 477. In other words, defense
counsel is presumed competent. Strickland, 466 U.S. at 690, 104 S. Ct. 2052.
22
¶43. As for the second prong of prejudice to the defense, a reviewing court must determine
whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Mohr v. State, 584 So. 2d 426, 430 (Miss.
1991). This means a “probability sufficient to undermine the confidence in the outcome.” Id.
¶44. In a death penalty case, the ultimate inquiry is “whether there is a reasonable probability
that, absent the errors, the sentencer would have concluded that the balance of the aggravating
and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct.
2052. There is no constitutional right to errorless counsel. Mohr, 584 So. 2d at 430. The right
to effective counsel does not entitle a defendant to have an attorney who makes no mistakes
at trial but simply affords the right to have competent counsel. If the post-conviction
application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v.
State, 743 So. 2d 326, 334 (Miss. 1999) (citing Foster v. State, 687 So. 2d 1124, 1130 (Miss.
1996)). We thus proceed to address the claims of ineffective assistance of counsel as to: (A)
impeachment of Earl Jordan and Frank Parker; (B) the testimony of Paula Hathorn; and (C)
defense counsel’s failure to present an alibi defense and mitigating evidence and failure to
preserve issues for appeal.
A. Failure to impeach Earl Jordan and failure to adequately develop
evidence to impeach Frank Parker.
¶45. Manning argues that his defense counsel was ineffective for failing to properly impeach
Earl Jordan and failing to cross-examine Jordan about certain details of his testimony and any
deal that may have been struck with the State in exchange for the testimony. Likewise, Manning
asserts that his trial counsel was ineffective for failing to exercise due diligence and failing
23
to uncover evidence to impeach Frank Parker, another jailhouse informant. Manning argues that
failure to follow-up for purposes of impeachment, failure to lay a proper foundation to rebut
the testimony of the State’s star witness, failure to follow well-established evidentiary rules
and missed opportunities to impeach Jordan as a credible witness, meets the Strickland
standard of ineffective assistance of counsel.
¶46. The State asserts that Manning’s ineffective assistance of counsel claim as to Jordan’s
testimony was addressed on direct appeal and cannot be relitigated in post-conviction
proceedings. Furthermore, the State argues that Manning’s claim of ineffective assistance of
counsel as to Parker’s testimony is procedurally barred for failure to raise it on direct appeal,
noting that several other claims of ineffective assistance were raised on direct appeal and that
this one should have been included. Lastly, the State argues that Manning’s claim that his
counsel failed to adequately impeach Frank Parker is absolutely refuted by the trial transcript.
¶47. The State is correct. On direct appeal, we found that Jordan was thoroughly
cross-examined and that there was other evidence before the jury that Jordan was hoping for
a favorable deal in exchange for his testimony. The transcript indicates that the defense counsel
cross-examined Jordan and attempted to discredit his testimony. Manning’s defense counsel’s
performance was not deficient merely because he did not conduct the cross-examination of
Jordan in every regard as the post-conviction counsel asserts he should have done.
Post-conviction counsel has the benefit of hindsight. See Bell v. Cone, 535 U.S. 685, 702, 122
S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S. Ct.
2574, 91 L. Ed. 2d 305 (1986); United States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039,
80 L. Ed. 2d 657 (1984).
24
¶48. Notwithstanding the procedural bar, as to the testimony of Frank Parker, the transcripts
reveal that defense counsel conducted a thorough cross-examination of Parker, including the
fact that he had criminal charges in Texas dropped after he came forward with information in
Manning’s case. Defense counsel also pursued a line of questioning attempting to call into
doubt whether Parker could really have overheard the conversation in which Manning stated
that he sold the gun(s) on the street. We find that these claims fail to meet the Strickland test
and are without merit.
B. Testimony of Paula Hathorn.
¶49. Manning argues that defense counsel, Mark G. Williamson, had a conflict of interest
because he had previously represented Paula Hathorn, one of the State’s key witnesses, on bad
check charges. Manning also asserts that the trial judge was on notice of the conflict and
committed error when he did not conduct a thorough inquiry into any possibility of a conflict.
Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). If the trial judge has
a reasonable basis to believe that defense counsel faces an actual conflict, the judge must
conduct a hearing. The failure to do so mandates reversal. Holloway v. Arkansas, 435 U.S.
475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). Manning asserts that “an actual conflict exists
when defense counsel is compelled to compromise his or her duty of loyalty or zealous
advocacy to the accused by choosing between or blending the divergent of competing interests
of a former or current client.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). This
conflict, Manning argues, had an adverse effect on his defense because his attorney had no real
opportunity to rebut or refute any of the false testimony that Hathorn provided and her false
testimony undermined the credibility of Manning’s defense.
25
¶50. The State succinctly argues that this claim was raised on direct appeal and cannot be
relitigated on post-conviction review. See Miss. Code Ann. § 99-39-21(3); Wiley v. State, 750
So. 2d 1193, 1200 (Miss. 1999); Foster v. State, 687 So. 2d 1124, 1135-37 (Miss. 1996). The
allegations that the State presented evidence that created a false impression and withheld
information from the defense is all supported in Manning’s post-conviction relief application
by an affidavit of Hathorn given during a recent incarceration and vaguely expressed, years after
the trial.
¶51. In Manning’s case, Hathorn was merely a witness, not a party to this action and
Williamson’s representation was completely unrelated to the events and charges of the
Manning case. There was no reasonable basis for the judge to conduct a hearing as to any such
conflict. On direct appeal, we found that defense counsel conducted a full cross-examination
of Hathorn, and there is no reasonable probability that the result of the trial would have been
different if the jury had never known that defense counsel had represented Hathorn in the past.
726 So. 2d at 1169. Furthermore, on direct appeal, this Court held that defense counsel had
no conflict in his representation of Manning. Id. This issue has been litigated and is barred
as a basis for post-conviction relief, and alternatively, upon consideration, it is also without
merit.
¶52. Also related to Hathorn’s trial testimony, Manning alternatively asserts that his trial
counsel was ineffective for not adequately impeaching Hathorn. Manning claims that his
attorney failed to take steps to establish the falsity of her testimony about his representation
of her and he failed to impeach her with the vast number of bad checks that she had written
since she first began giving statements to the sheriff. Manning argues that such impeachment
26
would have shown Hathorn’s willingness to lie because of her anger and would have revealed
Hathorn’s false testimony about Williamson’s representation of her, the magnitude of
Hathorn’s criminal history, and the subsequent lenient treatment that Hathorn received on her
pending charges.
¶53. The State again argues res judicata and procedural bar to this claim. The State also
asserts that the charges of trial counsel’s ineffectiveness are refuted by the trial transcripts and
an on-point review of those issues on direct appeal.
¶54. This issue was litigated on direct appeal and this Court found Manning’s trial court
representation to be effective. The Court noted that “the record indicates that Williamson
conducted a full cross-examination of Hathorn.” Id. We find that this issue is procedurally
barred and without merit, and additionally, it is without merit. Defense counsel conducted a
full cross-examination of Hathorn and while Hathorn did make comments as to defense
counsel’s past representation of her, it was not in such a way as to prejudice Manning’s defense
or cause counsel to be ineffective.
¶55. In his motion to amend and proposed amendment to his PCR motion, as well as his
objections to the trial court’s evidentiary hearing order, Manning asserts that if we should
accept the trial court’s findings of fact, the court-ordered evidentiary hearing conducted by the
trial court revealed ineffective assistance of trial counsel when he either overlooked the
micro-cassette tapes and partial transcripts of the telephonic conversations between Hathorn
and Manning, or having seen this evidence, failed to attach any significance to them so as to
use this evidence for impeachment of Hathorn. Additionally, Manning asserts that the
evidentiary hearing revealed there was other evidence which Sheriff Dolph Bryan offered for
27
examination which defense counsel simply failed to review. First of all, we find procedural
bar; however, procedural bar notwithstanding, we discuss this additional claim and deny this
claim on its merits. As discussed, supra, concerning Issue I as to “Exculpatory Evidence,” the
trial court appropriately found on remand that inasmuch as these telephonic conversations were
“scripted” by law enforcement by getting Hathorn to ask particular questions of Manning in an
effort to prompt incriminating statements from him, the taped conversations had little if any
impeachment value. The record in today’s case clearly reveals the existence of an enormous
amount of evidence. We refuse to find ineffective assistance of counsel based on a perceived
or claimed failure to examine every piece of evidence in every box. Thus, this issue is without
merit.4
C. Alibi Defense.
¶56. Trial counsel produced several witnesses that placed Manning at a nightclub on the night
of the murders. However, two of those witnesses were only able to testify that they saw
Manning at around 11:30 or 12:00. The testimony of Manning’s other witnesses was
impeached and criticized by the State as being unreliable. Manning asserts that if trial counsel
had conducted a more thorough investigation he could have presented a substantially stronger
case. Post-conviction counsel includes the affidavits of Sherron Armstead Mitchell, Doug
Miller and Troylin Jones. The recollections of these witnesses place Manning at the nightclub
well after midnight, and one of the witnesses’ statements placed Manning at the nightclub at
4
As already noted, Manning has likewise filed a 26-page objection to the circuit court’s entry of its
“Evidentiary Hearing Order,” which order was entered subsequent to the trial court’s conducting an
evidentiary hearing pursuant to this Court’s order. In essence, through this written objection, Manning
requests that we “reject” this order. This we refuse to do, and the objection is thus denied as reflected by
an order this day entered.
28
the very hour that the murders were taking place. Manning argues that he was prejudiced by
counsel’s failure to develop more substantial evidence in support of his alibi and notes that
reviewing courts have found counsel ineffective for inadequately presenting an alibi defense.
See Grier v. State, 299 S.C. 321, 384 S.E.2d 722 (1989).
¶57. We find that Manning fails to establish that his trial counsel’s performance was
deficient where counsel produced several witnesses placing Manning at a nightclub on the night
of the murder.
D. Preservation of issues for direct appeal.
¶58. Manning argues that trial counsel failed to preserve several issues, including his
assertion that the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L. Ed. 2d 69 (1986), in striking blacks from the jury pool where his reasons were pretextual.
Likewise, Manning argues that trial counsel’s performance was deficient for failing to object
when Hathorn testified as to Manning’s prior bad acts and character. Manning also argues that
defense counsel promised, in his opening statement, to produce testimony that someone else
had confessed to the crime. When the defense counsel did not follow through by presenting
this testimony, the prosecutor noted it in his closing argument. Thus, according to Manning,
the defense attorney’s unkept promise of such testimony was detrimental to his defense.
Finally, Manning asserts that defense counsel was ineffective for failing to object when the
prosecutor referred to Manning as a “monster” and likened the case to the O.J. Simpson case.
¶59. The State argues that Manning is wrong to assert that the defense counsel did not
preserve Batson claims. The defense attorney did raise a claim under Batson, and the trial
court required the State to give race-neutral reasons for its peremptory challenges. Those
29
reasons were then reviewed by this Court on appeal. 726 So. 2d at 1183-86. Next, the State
argues that Manning’s claim that the defense counsel was ineffective for failing to object to
Hathorn’s testimony cannot be sustained where the underlying substantive issue was raised on
direct appeal and decided against the Manning.
¶60. The State correctly points out that the issue of Hathorn’s testimony and whether or not
trial counsel was ineffective was litigated on direct appeal and that it is now procedurally
barred. As for the merits of this claim, we find that Manning’s claims do not rise to the level
of Strickland, and we thus, alternatively, deny this issue on its merits.
E. Mitigation Evidence.
¶61. Manning asserts that trial counsel had a duty to uncover all relevant mitigating evidence
and to conduct a thorough investigation into possible mitigating evidence. The record indicates
that there were witnesses who had knowledge of Manning’s family and were willing to
cooperate with defense counsel. Specifically, there are letters in the file from Mark
Williamson (defense counsel) to Richard Burdine (co-counsel) suggesting witnesses for the
mitigation portion of the penalty phase of trial. Those witnesses were apparently never
contacted. Furthermore, Manning includes affidavits from an attorney in Louisiana and an
investigator which declare the existence of valuable mitigating evidence that was never
presented at trial. Failing to present such evidence, Manning argues, is proof of his trial
counsel’s deficient performance and satisfies both prongs of Strickland.
¶62. The “failure to present a case in mitigation during the sentencing phase of a capital trial
is not, per se, ineffective assistance of counsel.” Williams v. State, 722 So. 2d 447, 450 (Miss.
1998), citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir. 1997). In the present case,
30
Manning’s defense attorney did in fact present a case in mitigation for the jury to consider.
Furthermore, this claim was raised on direct appeal and the Court found that Manning failed
to show prejudice related to the trial counsel’s failure to call other witnesses. Likewise, the
Court noted that “additional character witnesses would not have, with any reasonable
probability tipped the balance between mitigators and aggravators.” 726 So. 2d at 1170. This
claim is procedurally barred where this Court has already addressed its merits; however,
alternatively, we find this issue to also be without merit.
F. Closing argument.
¶63. Manning argues that because of the lack of investigation and preparation for the penalty
phase of trial, the defense counsel had nothing substantial to present in his closing argument.
Manning argues that defense counsel, therefore, presented a powerless and incoherent closing
argument which resulted in prejudice to his defense. Thus, it is Manning’s position that this
satisfies both prongs of Strickland and warrants post-conviction relief.
¶64. On direct appeal, this Court found that trial counsel’s closing argument was coherent
and not a poor strategic choice. We noted: “It is the opinion of this Court that Burdine’s
performance was not deficient.” Id. at 726 So.2d at 1171. Because we addressed this issue on
direct appeal, we now find this issue procedurally barred; however, alternatively, we again
reiterate it is without merit.
G. Failure to object.
¶65. Manning argues that the prosecutor’s remark during the State’s closing argument
improperly elaborated on religious themes and violated his constitutional right to a reliable
determination of his sentence. He also asserts that the prosecutor made improper and
31
prejudicial references to what Manning might do if he were paroled. Furthermore, Manning
argues that his trial counsel was ineffective for failing to object to these remarks and preserve
the issues for appeal.
¶66. The State counters that the claim was not raised on direct appeal and is therefore barred.
Without waiving the bar, the State argues that this Court has held that arguments with scriptural,
religious or biblical references are proper when made in response to scriptural or religious
arguments by defense counsel. Looking to the transcript, it is clear that the prosecutor was
responding to those type of “vengeance is mine” arguments set out by the defense.
¶67. We agree that this claim is barred for failure to raise it on direct appeal.
Notwithstanding procedural bar, we find this claim has no merit where this Court has found
Biblical or scriptural references in closing arguments to be within the broad latitude afforded
at trial.
[t]his Court has continually held that counsel is afforded broad latitude in
closing argument. This latitude, set out by the Court in Nelms & Blum Co. v.
Fink, 159 Miss. 372, 382-383, 131 So. 817, 820 (1930), has been referred to
in the context of capital cases. In Nelms, we stated that “[c]ounsel may draw
upon literature, history, science, religion, and philosophy for material for his
argument.” Id. at 382-384, 131 So. 817. See Hansen v. State, 592 So. 2d 114,
139-140 (Miss. 1991).
Berry v. State, 703 So. 2d 269, 281 (Miss. 1997). Considering the merits of this issue,
Manning fails to demonstrate prejudice regarding the State’s scriptural references or parole
argument during closing argument of the sentencing phase of Manning’s trial. We thus find
this issue to be without merit.
IV. Cumulative Error
32
¶68. As we have found no error, we necessarily find no cumulative error requiring
post-conviction relief. If there is “no reversible error in any part, so there is no reversible error
to the whole.” McFee v. State, 511 So. 2d 130, 136 (Miss. 1987). See also Byrom v. State,
863 So. 2d 836, 847 (Miss. 2003); Caston v. State, 823 So. 2d 473, 509 (Miss. 2002); Hicks
v. State, 812 So. 2d 179, 195 (Miss. 2002). Therefore, this issue is without merit.
CONCLUSION
¶69. Accordingly, for the reasons herein stated, we find that Willie Manning is not entitled
to seek post-conviction relief; therefore, his post-conviction relief motion is denied.
¶70. PETITION FOR POST-CONVICTION RELIEF, DENIED.
SMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, EASLEY AND GRAVES, JJ., NOT PARTICIPATING.
33