Jessie Derrell WILLIAMS
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*448 Tom Sumrall, Chester Nicholson, Gulfport, for Appellant.
Miсhael C. Moore, Attorney General, Leslie Lee, Special Asst. Atty. Gen., for Appellee.
En Banc.
SMITH, Justice, for the Court:
I.
¶ 1. Jesse Derrell Williams was tried in 1983 for capital murder while engaged in the commission of a kidnaping. The facts showed that, following a night of alcohol and drug use, Williams tackled Karen Ann Pierce and dragged her into a wooded area where he slashed her throat with a hunting knife and excised her anus and vagina while she was still alive. Williams was found guilty and sentenced to death. On direct appeal, the conviction for capital murder was affirmed but the case was remanded for a new trial on the sentencing phase. Williams v. State,
¶ 2. As to the underlying conviction, Williams filed an application to seek postconviction relief which was denied by this Court. Williams v. State,
¶ 3. We find no merit to any of these assertions and therefore deny the application for leave to seek post-conviction relief and the accompanying motion for leave tо proceed in forma pauperis.
II.
¶ 4. One who claims ineffective assistance of counsel must show not only the deficiency of counsel's performance but also that any such deficiency constituted prejudice tо the defense. Walker v. State,
I. COUNSEL FAILED TO OBJECT AT TRIAL OR IN HIS MOTION FOR A NEW TRIAL TO THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE SENTENCING JURY ON KIDNAPING AND ITS ELEMENTS.
¶ 5. Williаms claims that the jury was given an instruction that identified kidnaping as an aggravating circumstance but failed to instruct the jury as to the elements of kidnaping. Williams now argues that counsel's failure to lodge an objection at the sentencing рhase constituted ineffective assistance of counsel. The underlying issue of whether the jury was properly instructed was thoroughly considered on direct appeal. Williams,
¶ 6. If the issue was without merit, then the failure to raise an objection cannot be considered ineffective assistance of counsel because no prejudice could result from such an omission. Further, this Court has held that a claim previously decided on its merits on direct appeal cannot be re-litigated as a claim of ineffective assistance of counsel. Foster v. State,
II. COUNSEL RAISED THREE ISSUES WITH RESPECT TO THE ADEQUACY OF INSTRUCTION S-3 FOR THE FIRST TIME ON DIRECT APPEAL.
¶ 7. Jury instruction S-3 сontained the "especially heinous, atrocious or cruel" aggravating factor authorized by Miss.Code Ann. § 99-19-101(5)(h)(1994). Williams argued on direct appeal of his second sentencing trial that: (1) the instruction failed to speak exclusively to his moral culpability; (2) the instruction mandated to the jury that Williams had, in fact, used a method of killing that caused serious mutilation; and, (3) the instruction was unconstitutional because it was worded disjunctively("or") rather than conjunctively("and"). Although the issue wаs found to be procedurally barred on direct appeal for failure to make a contemporaneous objection, this Court still explored the issue on the merits and rejected the claim. Williams now asserts that the Court did not "adequately and realistically deal with these issues" and that the opinion did not "indicate clearly and expressly that it is alternatively based on bona fide separate, adequate and independent grounds." The Court's oрinion, however, quite clearly held:
Alternatively, while not waiving this procedural bar, we independently address these issues and find no merit in the other claimed inadequacies of S-3. Williams finds fault with parts of the instruction and certain words in the instruction such as lack of a mens rea requirement, an alleged directed verdict requirement, and the use of the word "or" which he says allows the jurors to find the aggravating circumstances without unanimity. While creative, these contentions hаve no basis and are without merit. After many challenges to the definition of the 5(h) aggravator and its limiting instructions, this Court's approval of an almost identical instruction in Conner mandates approval of the instruction. Conner,632 So.2d at 1271 . The trial court correctly submitted S-3 to the jury to guide it in its determination of the 5(h) aggravator. There is no merit to this issue.
Williams,
The issue was found to be unequivocally without merit because a nearly identical instruction had been upheld by this Court in Conner v. State,
III. COUNSEL FOR PETITIONER RAISED A PROSECUTORIAL MISCONDUCT CLAIM ON DIRECT APPEAL FOR THE FIRST TIME.
¶ 8. Although a contemporaneous objection was not made at the re-sentencing trial, counsel nonetheless claimed for the first time on direct appeal that improper comments by thе prosecutor denied the defendant a fair trial. Even though this Court considered and rejected the merits of the claim, Williams maintains that he was prejudiced by counsel's failure to preserve the alleged errors becausе of their cumulative effect. Williams argued on direct appeal that: (1) the prosecutor improperly referred to the victim's family during closing argument; (2) the prosecutor improperly commented on the likelihood of аppellate review during closing argument; (3) the prosecutor improperly asked jurors during voir dire if they would promise to give the death penalty if the State proved its case; (4) the prosecutor made inflammatory comments to the jury (e.g., referring to Williams as an "animal"); and, (5) the prosecutor improperly referred to facts not in evidence (i.e., stating that the victim may have been incapacitated by her drugs placed in her drink either by herself, "or in my оpinion more likely put there by the animal she was with.").
*450 ¶ 9. Without waiving the procedural bar, the Court carefully examined each one of these contentions on direct appeal and found them all to be without merit. Williams,
IV. COUNSEL WAS DEFICIENT IN NOT REQUESTING AND OBTAINING A PATHOLOGIST FOR THE DEFENSE AND GETTING A SECOND OPINION, WITH THE PROSPECT OF HAVING THE PATHOLOGIST TESTIFY AT THE HEARING IF HIS OPINION CHALLENGED THAT OF THE STATE'S EXPERT.
¶ 10. A State expert testified that the victim's body had been mutilated while she was still alive and this testimony was offered to prove that the killing was especially heinous, atrocious or cruel. Williams speculates that a seсond opinion might have differed from that of the State's expert and thereby "taken much of the sting from this aggravator." Williams' contention that the victim might already have been dead is completely unsupported by any affidavit as required Miss.Code Ann. § 99-39-9(1)(e)(1994). The record shows that trial counsel did, in fact, obtain a forensic scientist to review the State's pathology report, however, this expert was not called as a witness. The Fifth Circuit recently held that "`[t]he 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. Cain,
V. COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL ADDITIONAL WITNESSES AT THE POST-CONVICTION RELIEF HEARING WHEN CHALLENGING THE TRIAL TESTIMONY OF CO-DEFENDANT THOMAS TERRELL EVANS.
¶ 11. Williams asserts that the district attorney coerced the perjured testimony of Evans by threatening to pursue the death penalty if he did not testify against Williams. Williams attaches the affidavits of Evans and others which state that Evans struck a deal wherein he would testify against Williams in exchange for a plea to a lesser chargе. Williams claims that counsel was ineffective for failing to call witnesses other than Evans who declined to recant his prior testimony at the hearing. This Court has already considered and rejected the merits of Williams' contention thаt Evans' testimony was coerced and perjured. See Williams v. State,
In the case sub judice, we hold that there is no reasonable probability that a different result would be reached in a new trial, even assuming that Evans' initial testimony against Williams was perjured. In this case, Evans' 1985 recantation combined with the surrounding facts cannot undermine the court's confidence in the correctness of the outcome at trial.
Id. at 53.
¶ 12. The standard of acceptable performance by an attorney is the same for appellate performance as it is for trial performance. *451 Foster v. State,
VI. WILLIAMS WAS DENIED HIS RIGHT TO TESTIFY AT TRIAL.
¶ 13. This claim relates to the guilt phase of Williams' trial and is now proсedurally barred pursuant to Miss.Code Ann. § 99-39-27(9)(1994) as a successive writ. As a practical matter, the trial transcript shows that Williams was fully informed of his right to testify in his own behalf. After the defense rested its case, the following exchange took place.
BY THE COURT: And now, your attorneys have announced that they are resting without putting on any evidence, and that includes you not testifying in your own behalf. Have you discussed this with your attorneys?
BY THE DEFENDANT: Yes, sir, I have.
BY THE COURT: And are you in agreement that you not testify in your own defense in this trial?
BY THE DEFENDANT: Yes, sir, I am.
BY THE COURT: Alright. So, you are freely and voluntarily and knowingly waiving your right to testify in your own defense?
BY THE DEFENDANT: Yes, sir.
¶ 14. This issue is completely without merit.
CONCLUSION
¶ 15. The application for leave to seek postconviction relief in the trial court and the motion to proceed in forma pauperis are denied.
¶ 16. APPLICATION FOR POST-CONVICTION RELIEF AND MOTION TO PROCEED IN FORMA PAUPERIS DENIED.
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and BANKS, JAMES L. ROBERTS, Jr., MILLS and WALLER, JJ., concur.
McRAE, J., not participating.