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 - 03/09/2006
MOTION FOR REHEARING FILED: 09/19/2005
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion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
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extensive abrasions occurring prior to his death, which were consistent with being run over by
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 kidnapping, 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.
3
¶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.
Manning asserts the testimony of Hathorn was not credible because 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 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. State, 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
4
evidence; II) polygraph examination; III) ineffective assistance of counsel; and, IV) cumulative
errors.
I. Exculpatory Evidence
¶12. Manning argues the State presented testimony from Frank Parker that included
numerous lies and misrepresentations; that the State knew or should have known Parker 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 Parker lied about pending criminal charges
against him and lied about the severity of those charges, and that he denied his testimony was
motivated by the possibility of reward money. Further, Manning asserts it 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 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 the State knowingly presented false testimony, and that due to the
crucial nature of this testimony, the State cannot show beyond a reasonable doubt 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 mandate that “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
5
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.
¶14. The State asserts 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 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 procedural
bar. Wiley v. State, 750 So.2d 1193, 1210 (Miss. 1999). Furthermore, the State argues
Manning fails to establish 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
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evidence nor could he obtain it himself with any reasonable diligence; © 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, 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
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).
¶17. Manning further asserts the prosecutor knew or should have known that Paula 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. Manning also argues 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 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, 405 U.S. at 154-55. Manning also argues
7
a violation of Brady for the State’s failure to disclose information associated with Hathorn’s
testimony. Manning asserts 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 the transcripts of
those telephone conversations show Hathorn failed to elicit any incriminating statements from
Manning and indicate that several of the statements made by Hathorn directly contradict her
subsequent trial testimony. Manning also argues 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 Manning fails to back up his claim that there are cassette tapes and
transcripts related to Hathorn’s testimony. 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 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 to Manning, such that a new trial would be warranted. At the
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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
used?”1 The trial court held that no Brady violation occurred and a new trial was not warranted.
The trial court first determined that no “factual basis exist[ed] to prove 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 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.
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.
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¶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 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
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 with respect to Frank Parker and Paula
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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Hathorn, the trial court finding on this issue is supported by the record. See Todd v. State, 806
So.2d at 1092. Therefore, we find all exculpatory issues raised by Manning regarding Frank
Parker and Paula Hathorn to be without merit.3
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 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 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.
3
Manning cites the United States Supreme Court’s opinion in Banks v. Dretke, 540 U.S.
668, 698 (2004) as the controlling authority. Banks held that a witness’s status as an
informant was “unquestionably relevant,” and “beyond doubt” disclosure of a witness’s
informant status would have been beneficial for the jury. Banks, 540 U.S. at 698-701.
However, Manning must still prove the three elements of a Brady violation. See Brady v.
Maryland, 373 U.S. 83 (1963). Although Paula Hathorn’s status as an informant who received
consideration for her testimony is relevant, Manning has failed to prove that the State
suppressed such evidence either wilfully or inadvertently and that prejudice ensued. Therefore,
this issue is without merit.
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[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 because the State made no attempt
to disclose whether Jordan had actually taken the polygraph or the results of the test. Manning
v. State, 726 So.2d at 1179. This decision was based on Conner v. State, 632 So.2d 1239,
1257-58 (Miss. 1993), in which we held the trial court did not abuse its discretion when it
allowed testimony concerning the willingness of a witness for the State to take a polygraph test
in order to rehabilitate that witness’ testimony. With respect to the polygraph test, Manning
now argues he is entitled to a new trial on three bases.
¶25. First, Manning argues 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
12
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 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 he was denied his full right to discovery about whether Jordan
took a polygraph and the results of such test. He contends 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 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
13
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 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. In Conner, we
discussed this Court’s history in addressing polygraph evidence:
This Court has often 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.
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
14
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 (11 t h Cir. 1989)
(“a witness’s or defendant’s willingness to submit to a polygraph examination
is inadmissible to prevent bolstering of credibility”).
Id. at 1257-58 (emphasis in original). However, in Conner 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.
15
Id. 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 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.
732 So. 2d at 162. We agreed with the trial court and held that testimony concerning a
16
witness’s offer to take a polygraph test was not inadmissible, and that this prohibition applied
to witnesses for the prosecution and for the defense.
¶31. Therefore, today’s question before this Court, is whether Weatherspoon may be applied
retroactively. Manning’s direct appeal is final, and this case 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 could object to a
prosecutor’s discriminatory use of peremptory challenges even though the defendant’s race
was different from the race of the challenged juror.” Powers, 499 U.S. at 410, 111 S.Ct. at
1370. Therefore, on motion for PCR, Nixon argued that this presented a new rule of federal
constitutional law which applied retroactively. Nixon, 641 So.2d at 753. Thus, this Court had
to decide whether Nixon was procedurally barred from raising this issue or whether this
decision could be applied retroactively.
17
¶33. In Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334, 356 (1989),
the United States Supreme Court held, by a plurality vote 4 that “a new rule of constitutional law
will not be applied retroactively to a case on habeas review unless it falls 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,’” (Citing Mackey v. United
States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971). The second
exception is “reserved for watershed rules of criminal procedure.” Teague, 489 U.S. at 311.
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. Finding 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
4
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).
18
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
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
19
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
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:
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
20
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.
¶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. “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 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.
21
at 2526. Applying the rules found in Teague, Schriro and Nixon, we find that Weatherspoon
announced a procedural rule which does 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,
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.
22
¶39. Without question, Weatherspoon created a new rule of law concerning the admissibility
of polygraph evidence, or references to polygraph examinations, and 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.
Second, this procedural rule does not diminish the likelihood of an accurate conviction. Id.
at 315. Because no actual prejudice is suffered by Manning, Weatherspoon affords him no
relief.
¶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.
¶42. Furthermore, we take this opportunity to expressly state that in the future this Court will
continue to apply the very limited retroactive application standard set forth by the United
States Supreme Court in Teague v. Lane. In previous opinions this Court has failed to apply
the Teague decision and instead continued to adhere to a more liberal position that “judicially
enunciated rules of law are applied retroactively.” See Kolberg v. State, 704 So.2d 1307,
1316 (Miss. 1997) (quoting Ales v. Ales, 650 So.2d 482, 484 (Miss. 1995)); see also Morgan
v. State, 703 So.2d 832, 839 (Miss. 1997); Cain v. McKinnon, 552 So.2d 91, 92 (Miss.
23
1989); Hall v. Hilburn, 466 So.2d 856, 875 (Miss. 1985); Keyes v. Guy Bailey Homes, Inc.,
439 So.2d 670, 672-73 (Miss. 1983). We hold today that the limited retroactive standard set
forth in the United States Supreme Court case of Teague v. Lane should be applied to all
issues relating to the retroactive application of judicially enunciated rules.
III. Ineffective Assistance of Counsel
¶43. “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. “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). 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.
24
¶44. 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.
¶45. 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. 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 © 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.
¶46. Manning argues 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
25
that may have been struck with the State in exchange for the testimony. Likewise, Manning
asserts his trial counsel was ineffective for failing to exercise due diligence in failing 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, meet the Strickland
standard of ineffective assistance of counsel.
¶47. The State asserts 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 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 Manning’s claim that his counsel
failed to adequately impeach Frank Parker is absolutely refuted by the trial transcript.
¶48. 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 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 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,
26
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).
¶49. 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 that
criminal charges against him in Texas were 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 these claims fail to meet the Strickland test and
are without merit.
B. Testimony of Paula Hathorn.
¶50. Manning argues 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 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.
See 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
27
advocacy to the accused by choosing between or blending the divergent or 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 Hathorn provided, and her false
testimony undermined the credibility of Manning’s defense.
¶51. The State succinctly argues 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.
¶52. 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
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.
Manning, 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
28
is barred as a basis for post-conviction relief, and alternatively, upon consideration, it is also
without merit.
¶53. Also related to Hathorn’s trial testimony, Manning alternatively asserts his trial counsel
was ineffective for not adequately impeaching Hathorn. Manning claims 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 such impeachment 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 Hathorn received on her pending charges.
¶54. 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.
¶55. 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 this issue is procedurally barred,
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 to prejudice Manning’s defense or to cause counsel to be
ineffective.
29
¶56. 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 the evidentiary
hearing revealed there was other evidence which Sheriff Dolph Bryan offered for examination
which defense counsel simply failed to review. First, we find this argument is procedurally
barred; however, procedural bar notwithstanding, we discuss this additional claim and deny it
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.5
5
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
30
C. Alibi Defense.
¶57. 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 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 the very
hour the murders were taking place. Manning argues 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).
¶58. We find 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.
the objection is thus denied as reflected by an order this day entered.
31
D. Preservation of issues for direct appeal.
¶59. Manning argues 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 trial counsel’s performance was deficient for failing to object when Hathorn
testified to Manning’s prior bad acts and character. Manning also argues 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 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.
¶60. The State argues Manning is wrong to assert that 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 reasons
were then reviewed by this Court on appeal. Manning, 726 So.2d at 1183-86. Next, the State
argues Manning’s claim that 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 Manning.
¶61. 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 is now procedurally barred. As
32
for the merits of this claim, we find Manning’s claims do not rise to the level of Strickland,
and we thus, alternatively, deny this issue on its merits.
E. Mitigation Evidence.
¶62. Manning asserts trial counsel had a duty to uncover all relevant mitigating evidence and
to conduct a thorough investigation into possible mitigating evidence. The record indicates
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.
¶63. 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,
Manning’s defense attorney did present a case in mitigation for the jury to consider.
Furthermore, this claim was raised on direct appeal, and the Court found Manning failed to
show prejudice related to trial counsel’s failure to call other witnesses. Likewise, the Court
noted that “additional character witnesses would not have, with any reasonable probability
33
tipped the balance between mitigators and aggravators.” Manning, 726 So.2d at 1170. This
claim is procedurally barred because this Court has already addressed its merits; however,
alternatively, we find this issue to also be without merit.
F. Closing argument.
¶64. Manning argues that because of the lack of investigation and preparation for the penalty
phase of trial, defense counsel had nothing substantial to present in his closing argument.
Manning argues defense counsel, therefore, presented a powerless and incoherent closing
argument which resulted in prejudice to his defense. Thus, it is Manning’s position this
satisfies both prongs of Strickland and warrants post-conviction relief.
¶65. On direct appeal, this Court found that trial counsel’s closing argument was coherent
and not a poor strategic choice. We noted: “[i]t is the opinion of this Court that Burdine’s
performance was not deficient.” Id. 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.
¶66. Manning argues the prosecutor’s remark during the State’s closing argument that God
sanctions, even commands, imposition of the death penalty for murder and that Manning was
“a vessel of wrath fit only for destruction” improperly elaborated on religious themes and
violated his constitutional right to a reliable determination of his sentence. He also asserts the
prosecutor made improper and prejudicial references to what Manning might do if he were
34
paroled. Furthermore, Manning argues his trial counsel was ineffective for failing to object
to these remarks and preserve the issues for appeal.
¶67. The State counters the claim was not raised on direct appeal and is therefore barred.
Without waiving the bar, the State argues 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.
¶68. We agree this claim is barred for failure to raise it on direct appeal. Notwithstanding
the procedural bar, we find this claim has no merit because this Court has found Biblical or
scriptural references in closing arguments to be within the broad latitude afforded at trial.
This 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) [other citations omitted].
Berry v. State, 703 So.2d 269, 281 (Miss. 1997) (quoting Carr v. State, 655 So. 2d 824, 853
(Miss. 1995)). 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.
35
IV. Cumulative Error
¶69. Manning asserts the familiar argument that even if we should find no individual
reversible error, we should still afford him relief because of the cumulative effect of certain
errors committed during the course of this trial. In Byrom v. State, 863 So.2d 836, 846-47
(Miss. 2003), we took the opportunity to clarify our position on the “cumulative effect”
argument, conceding the existence of less than clear language in prior cases. See, e.g., Jenkins
v. State, 607 So.2d 1171, 1183-84 (Miss. 1992); McFee v. State, 511 So.2d 130, 136 (Miss.
1987). In Byrom, we stated:
What we wish to clarify here today is that upon appellate review of cases in
which we find harmless error or any error which is not specifically found to be
reversible in and of itself, we shall have the discretion to determine, on a case-
by-case basis, as to whether such error or errors, although not reversible when
standing alone, may when considered cumulatively require reversal because of
the resulting cumulative prejudicial effect. That having been said, for the reasons
herein stated, we find that errors as may appear in the record before us in today's
case, are individually harmless beyond a reasonable doubt, and when taken
cumulatively, the effect of all errors committed during the trial did not deprive
Michelle Byrom of a fundamentally fair and impartial trial. We thus affirm
Byrom's conviction and sentence.
863 So.2d at 847. Consistent with our pronouncement in Byrom, we find from the record
before us in today’s case that any trial court errors were harmless, and when considering the
cumulative effect of these harmless errors, there exists no cumulative prejudicial effect
requiring reversal. Therefore, we find this assignment of error to be without merit.
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CONCLUSION
¶70. 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.
¶71. 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.
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