79-year-old Grace Blackwell drove to the drive-through teller window
of her bank in Jasper County. She presented a blank check and asked
the teller to fill the check out in the amount of $1200. The teller's
view of the car's back seat was blocked by hanging clothes. The teller
testified that after giving her the money, she heard Blackwell say, "I'm
hurrying, I'm hurrying."
The teller notified the police, and they went to
Blackwell’s home only to find the front door open and the phone
disconnected. Witnesses testified that they saw Blackwell's car later
being driven by a young black male, and one witness identified the
driver as Rodney Gray. Police found Blackwell's body at the end of a
bridge in Newton County at 1:40 p.m. Her car was found elsewhere in
Investigators determined that Blackwell had been
killed by a shotgun blast to the mouth. Later, an autopsy revealed
that Blackwell had also been raped and that her body had been run over
by a car.
Investigators questioned and arrested Rodney Gray
that same day. While in jail, Gray phoned his girlfriend, Mildred
Curry, to tell her that he had hidden money in a bathroom vent. A
search of Curry's trailer turned up $1,123 hidden in the bathroom air
duct. The bloody clothes and boots which Gray had been wearing on the
day of the murder were found in a bucket behind Curry's trailer.
DNA of the semen found on Blackwell had less than a
1-in-446 million chance of coming from someone other than Gray,
according to FBI experts.
Gray v. State, 728 So.2d 36 (Miss. 1998). (Direct Appeal)
Gray v. State, 887 So.2d 158 (Miss. 2004). (PCR)
Gray v. Epps, 616 F.3d 436 (5th Cir. 2010). (Habeas)
Mississippi Department of Corrections
Inmate: RODNEY GRAY
Date of Birth: 7/17/1972
Height: 5' 8''
Complexion: MEDIUM BROW
Eye Color: BROWN
Hair Color: BLACK
Entry Date: 11/22/1995
1 BURGLARY-GENERAL 09/06/1995 JASPER COUNTY 3 YEARS
2 BURGLARY-GENERAL 09/06/1995 JASPER COUNTY 3 YEARS
3 HOMICIDE- 01/25/1996 NEWTON DEATH
Factual Background of the Case
On January 25, 1996, a Newton County jury convicted
Rodney Gray of the capital murder of Grace Blackwell.
On the morning of August 15, 1994, 79-year-old
Grace Blackwell drove to the drive-through teller window of her bank
in Jasper County. Blackwell presented a blank check and asked the
teller to fill the check out in the amount of $1200. The teller's view
of the car's back seat was blocked by hanging clothes. The teller
testified that after giving her the money, she heard Blackwell say, "I'm
hurrying, I'm hurrying." The teller notified the police, and they went
to Blackwell’s home only to find the front door open and the phone
Witnesses testified that they saw Blackwell's car
around noontime being driven by a young black male, and one witness
identified the driver as Rodney Gray. Police found Blackwell's body at
the end of a bridge in Newton County at 1:40 p.m. Her car was found
elsewhere in Newton County. Investigators determined that Blackwell
had been killed by a shotgun blast to the mouth. Later, an autopsy
revealed that Blackwell had also been raped and that her body had been
run over by a car.
Investigators questioned Rodney Gray on August 15
about Blackwell's disappearance and arrested him that same day. While
in jail, Gray phoned his girlfriend, Mildred Curry, to tell her that
he had hidden money in a bathroom vent. A search of Curry's trailer
turned up $1,123 hidden in the bathroom air duct. The clothes and
boots which Gray had been wearing on the day of the murder were found
in a bucket behind Curry's trailer.
A Newton County grand jury indicted Gray for the
capital murder of Grace Blackwell in violation of Miss. Code Ann. §
97-3-19(2)(e) (murder while engaged in the commission of the crime of
kidnapping/and/or rape). On January 22, 1996, a jury was impaneled and
found Gray guilty on January 24, 1996. Afterward, the jury heard
evidence in support of aggravating and mitigating circumstances to
determine the sentence to be imposed. The jury sentenced Gray to death
on January 25, 1996.
Execution by Lethal Injection
In 1998, the Mississippi Legislature amended
Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51. ***The
manner of inflicting the punishment of death shall be by continuous
intravenous administration of a lethal quantity of an ultra short-acting
barbiturate or other similar drug in combination with a chemical
paralytic agent until death is pronounced by the county coroner where
the execution takes place or by a licensed physician according to
accepted standards of medical practice.
Contents of Syringes for Lethal Injection
Anesthetic - Pentobarbital – 5.0 Gm.
Normal Saline – 10-15 cc.
Pavulon – 50 mgm per 50 cc.
Potassium chloride – 50 milequiv. per 50 cc.
Lethal Injection History
Lethal injection is the world’s newest method of
execution. While the concept of lethal injection was first pro-posed
in 1888, it was not until 1977 that Oklahoma became the first state to
adopt lethal-injection legislation. Five years later in 1982, Texas
performed the first execution by lethal injection. Lethal injection
has quickly be-come the most common method of execution in the United
States. Thirty-five of thirty-six states that have a death penalty use
lethal injection as the primary form of execution. The U.S. federal
government and U.S. military also use lethal injection. According to
data from the U.S. Department of Justice, 41 of 42 people executed in
the United States in 2007 died by lethal injection.
While lethal injection initially gained popularity
as a more humane form of execution, in recent years there has been
increasing opposition to lethal injection with opponents arguing that
instead of being humane it results in an extremely painful death for
the inmate. In September 2007 the United States Supreme Court agreed
to hear the case of Baze v. Rees to determine whether or not
Kentucky’s three drug-protocol for lethal injections amounts to cruel
and unusual punishment in violation of the Eighth Amendment to the
United State Constitution. As a result of the Supreme Court’s decision
to hear this case, executions in the United States came to a brief
halt in late September 2007. On April 16, 2008, the Supreme Court
ruled in Baze holding that Kentucky’s three-drug protocol for
administering lethal injections does not violate the Eighth Amendment.
The result of this ruling was to lift the de facto moratorium on
executions in the United States. The State of Georgia became the first
state to carry out an execution since the Court’s Baze decision when
William Earl Lynd was executed by lethal injection on May 6, 2008.
Chronological Sequence of Events of Execution
48 Hours Prior to Execution The inmate is
transferred to a holding cell adjacent to the execution room.
24 Hours Prior to Execution Institution is placed in emergency/lockdown
1200 Hours Day of Execution Designated media center at institution
1500 Hours Day of Execution Inmate’s attorney of record and chaplain
allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed to
1630 Hours Day of Execution MDOC clergy allowed to visit upon request
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to
1800 Hours Day of ExecutionWitnesses are escorted into observation
1900 Hours Day of Execution A post execution briefing is conducted
with media witnesses.
2030 Hours Day of Execution Designated media center at institution is
Death Row Executions
Since Mississippi joined the Union in 1817, several
forms of execution have been used. Hanging was the first form of
execution used in Mississippi. The state continued to execute
prisoners sentenced to die by hanging until October 11, 1940, when
Hilton Fortenberry, convicted of capital murder in Jefferson Davis
County, became the first prisoner to be executed in the electric chair.
Between 1940 and February 5, 1952, the old oak electric chair was
moved from county to county to conduct execu-tions. During the 12-year
span, 75 prisoners were executed for offenses punishable by death.
In 1954, the gas chamber was installed at the
Mississippi State Penitentiary, in Parchman, Miss. It replaced the
electric chair, which today is on display at the Mississippi Law
Enforcement Training Academy. Gearald A. Gallego became the first
prisoner to be executed by lethal gas on March 3, 1955. During the
course of the next 34 years, 35 death row inmates were executed in the
gas cham-ber. Leo Edwards became the last person to be executed in the
gas chamber at the Mississippi State Penitentiary on June 21, 1989.
On July 1, 1984, the Mississippi Legislature
partially amended lethal gas as the state’s form of execu-tion in §
99-19-51 of the Mississippi Code. The new amendment provided that
individuals who com-mitted capital punishment crimes after the
effective date of the new law and who were subsequently sentenced to
death thereafter would be executed by lethal injection. On March 18,
1998, the Mississippi Legislature amended the manner of execution by
removing the provision lethal gas as a form of execution.
Mississippi Death Row Demographics
Youngest on Death Row: Terry Pitchford, MDOC
#117778, age 25
Oldest on Death Row: Richard Jordan, MDOC #30990, age 64
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 March 2,
1977: Thirty-Four Years
The Mississippi State Penitentiary (MSP) is
Mississippi’s oldest of the state’s three institutions and is located
on approximately 18,000 acres in Parchman, Miss., in Sunflower County.
In 1900, the Mississippi Legislature appropriated $80,000 for the
purchase of 3,789 acres known as the Parch-man Plantation. The
Superintendent of the Mississippi State Penitentiary and Deputy
Commissioner of Institutions is E.L. Sparkman. There are approximately
921 employees at MSP. All male offenders sentenced to death are housed
at MSP. All female offenders sentenced to death are housed at the
Central Mississippi Correctional Facility in Pearl, Miss.
Killer shows no sign of remorse before execution
May. 18, 2011
PARCHMAN — No one will ever know what possessed a
then-22-year-old man to kidnap, rape and shoot to death an elderly
woman old enough to be his grandmother or great-grandmother in 1994.
More than 16 years after 79-year-old Grace Blackwell was killed, her
murderer, now 38, was put to death for the crime. At 6:12 p.m. Tuesday,
Rodney Gray died by lethal injection.
With Blackwell's son-in-law, Billy Martin, and
granddaughter, Amber Arnold, witnessing his execution, Gray gave no
apology. When given the opportunity to speak, Gray shook his head to
affirm he didn't want to make a statement. Strapped to the gurney,
Gray looked much different than the prison picture showing him with
platted hair. His hair was neatly cropped and he wore glasses.
He dangled his left foot, seemingly impatient to
get the execution started. Once injected with the fatal cocktail, Gray
took three deep breaths and appeared to die immediately. Eight minutes
passed before he was officially pronounced dead. Martin and Arnold sat
watching stone-faced, with Martin holding his daughter's hand.
Gray died, of course, much different than the
violent death his victim suffered. Blackwell was raped, shot in the
mouth with a shotgun and thrown out of a car or run over with a car
before she died. "Unfortunately, we will have to continue to live with
the scars of this cruel and senseless attack on such a kind and loving
person who bore no ill will toward anyone," Blackwell's family said in
a statement. "The family will have to live with the knowledge of those
terrifying last hours of her life."
Her family thanked those who worked to see that the
justice system functioned properly in the case. The statement also
said family members will not regain what they lost or fully heal from
the pain and suffering, but take comfort in knowing Gray can no longer
Gray was the first black inmate to be executed by
lethal injection since the state began using the method in 1998. Of
the remaining 57 inmates on death row, 32 are black, 24 are white and
one Asian. Gray's stay on death row is about the average time an
inmate spends in Mississippi. He is the second inmate put to death
this month. Benny Joe Stevens, 52, was put to death last week and
Robert Simon Jr., 47, is scheduled for execution next week.
Many condemned killers are talkative with their
execution imminent. Gray was no exception, but ate very little of his
food, saying he wasn't hungry. A condemned inmate also is granted a
customary last meal of his choosing, but Gray opted not to order a
special meal. He also didn't want a sedative.
Gray's mother, Annie Tatum, visited him for two
hours, but Gray requested no family members view his execution. Gray
asked Mississippi Department of Corrections Chaplain Willie Bays to
witness his execution after his own spiritual adviser didn't make it
to Parchman. Gray said he had made peace with the Lord, MDOC
Commissioner Chris Epps said from conversations with Gray. Gray also
had been reading the Bible, Epps said.
Though he appeared resigned to die, Gray said he
was innocent of all the crimes that led him to being on death row,
Epps said. "I think he has decided over the years that he didn't do
the crime," Epps said. Former Newton County District Attorney Ken
Turner, who prosecuted the case, however, said the "evidence was
overwhelming" against Gray. DNA of the semen found on Blackwell had
less than a 1-in-446 million chance of coming from someone other than
Gray, according to FBI experts.
Blackwell lived in neighboring Jasper County. Gray
was from Newton County. Blackwell was last seen alive after cashing a
$1,200 check at her bank in Louin. The teller testified at Gray's
trial that she heard the woman say over the speaker, "I'm hurrying.
I'm hurrying." The teller said clothes hanging in the car prevented
her from seeing into the back seat.
A motorist said he saw a woman struggling with a
man in a car on a rural county road that day. He identified the man as
Gray. The vehicle he described matched Blackwell's Chrysler.
Blackwell's body was found at the end of a Newton County bridge on Aug.
15, 1994. Lawmen initially charged Gray with burglary of Blackwell's
house. However, a murder charge was levied once Gray was linked to the
money and statements from two cellmates that Gray had confessed to the
Also, a girlfriend of Gray's gave investigators
information that led them to search her house trailer. Gray had called
the woman and told her that he had put some money away in a bathroom
vent. She thought Gray was lying. However, during the investigators'
search of her trailer, $1,123 was found hidden in an air conditioner
duct in a bathroom.
Gray's execution was assured Tuesday after the U.S.
Supreme Court denied his emergency appeal. On Monday, Gov. Haley
Barbour denied his clemency request. Gray requested that his body be
released to Holifield Funeral Home in Forest. As he says at the end of
each execution, Epps said Tuesday night: "We have seen justice today."
Man put to death in slaying of elderly woman
By Jack Elliott Jr. - HattiesburgAmerican.com
May. 17, 2011
PARCHMAN — A man sentenced to death for the robbery
and shotgun slaying of an elderly Mississippi woman was executed
Tuesday at the state penitentiary at Parchman. Rodney Gray vigorously
shook his head when asked by corrections officials if he had a
statement. He took three deep breaths before he was pronounced dead at
Gray, 38, dressed in a red prison jumpsuit, white
sneakers and glasses, had said earlier Tuesday that he would have no
last statement, according to Corrections Commissioner Chris Epps. "We
talked about the crime," Epps said in the hours before the execution.
"He's convinced himself ... in his mind that he is not guilty. He's
convinced everybody else is wrong and Rodney Gray is right. Epps
commented afterward: "We have seen justice today."
Gray was sentenced to death in 1996 for killing 79-year-old
Grace Blackwell of Louin, whose body was found Aug. 15, 1994, at the
end of a Newton County bridge. Blackwell died from a shotgun wound to
the head. Blackwell was last seen after cashing a $1,200 check at the
woman's bank in Louin. The victim's car was later found behind a
service station in Decatur.
In court records, prosecutors said the woman's
blood was found on Gray's clothing left at his girlfriend's mobile
home. Epps said despite that forensic evidence Gray denies he
committed the crime.
Gray talked with his mother Tuesday shortly before
being taken into the execution room. No one from his family attended
the execution. Two members of Blackwell's family attended.
In a statement, Blackwell's family said they
continue "to live with the scars of this cruel and senseless attack on
such a kind and loving person who never bore any ill will toward
anyone." "Although we will never re-gain what we have lost or fully
heal from the pain and suffering inflicted on our family, we will take
some comfort in the knowledge that no one else will come to harm at
the hands of Rodney Gray," the statement said.
Gray was the first black inmate to be executed by
lethal injection since the state adopted the method in 1998. Leo
Edwards, who was black, died in the now mothballed gas chamber in
1989. Ten white inmates were executed by lethal injection between July
17, 2002 and May 10, 2011. The U.S. Supreme Court on Tuesday turned
down Gray's appeal. Gov. Haley Barbour denied Gray's clemency petition
Epps said Gray's body would be turned over to
Holifield Funeral Home in Forest. Gray's execution was the second in
Mississippi using pentobarbital due to a nationwide shortage of a
different drug it has used in the past. Benny Joe Stevens was executed
May 10 using the new lethal drug mixture.
On the morning of August 15, 1994, 79-year-old
Grace Blackwell drove to the drive-through teller window of her bank
in Jasper County. Grace presented a blank check and asked the teller
to fill the check out in the amount of $1200. The teller's view of the
car's back seat was blocked by hanging clothes. The teller testified
that after giving her the money, she heard Grace say, "I'm hurrying,
I'm hurrying." The teller notified the police, and they went to Grace’s
home only to find the front door open and the phone disconnected.
Witnesses testified that they saw Grace's car
around noontime being driven by a young black male, and one witness
identified the driver as Rodney Gray. Police found Grace Blackwell's
body at the end of a bridge in Newton County at 1:40 p.m. Her car was
found elsewhere in Newton County. Investigators determined that
Blackwell had been killed by a shotgun blast to the mouth. Later, an
autopsy revealed that Grace had also been raped and that her body had
been run over by a car.
Investigators questioned Rodney Gray on August 15
about Grace Blackwell's disappearance and arrested him that same day.
While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her
that he had hidden money in a bathroom vent. A search of Curry's
trailer turned up $1,123 hidden in the bathroom air duct. The clothes
and boots which Gray had been wearing on the day of the murder were
found in a bucket behind Curry's trailer.
A Newton County grand jury indicted Gray for the
capital murder of Grace Blackwell, with the aggravator of murder while
engaged in the commission of the crime of kidnapping/and/or rape.
Attorneys Thomas D. Lee and B. Jackson Thames, Jr. represented Gray in
the trial court. At trial, FBI experts testified that the foot print
at the Blackwell home came from Gray's boot and that tests on DNA
samples taken from Grace Blackwell's undergarments showed that Gray
was the likely source. The probability that the semen came from
someone other than Gray was 1 in 446,000,000.
Further testimony came from one of Gray's cell
mates, who testified that while in jail Gray told him that he had
forced Blackwell to withdraw money from the bank, raped her and then
shot her with a .410 shotgun. The jury found Gray guilty of capital
murder and then heard evidence as to mitigating and aggravating
circumstances pertinent to the determination of the sentence which
should be imposed on Gray. After hearing testimony from several
witnesses from the State and the defense, the jury reached a unanimous
verdict finding that Rodney Gray should suffer death for the capital
murder of Grace Blackwell.
Gray v. State, 728 So.2d 36 (Miss. 1998).
Defendant was convicted in the Circuit Court,
Newton County, Marcus D. Gordon, J., of capital murder and was
sentenced to death. He appealed. The Supreme Court, James L. Roberts,
Jr., J., held that: (1) defendant's speedy trial rights were not
violated; (2) jury did not exhibit bias or passion by deliberating
only ten minutes before returning conviction and one hour before
returning sentence of death; (3) defendant was not entitled to change
of venue; (4) evidence supported finding that defendant kidnapped
victim; and (5) death penalty was not disproportionate. Affirmed.
JAMES L. ROBERTS, Jr., Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. This appeal comes before this Court from the
Circuit Court of Newton County, Mississippi. Rodney Gray was indicted
during the July-August 1995 term of the Circuit Court of Newton County,
for the capital murder of Grace Blackwell on August 15, 1994, while
engaged in the commission of the crime of kidnapping and/or rape in
violation of Miss.Code Ann. § 97-3-19(2)(e). On January 22, 1996, a
jury was impaneled and found Gray guilty on January 24, 1996.
Afterward, the jury heard evidence in support of aggravating and
mitigating circumstances to determine the sentence to be imposed. The
jury sentenced Gray to death on January 25, 1996.
2. The sentence of death was in the following form
pursuant to Miss.Code Ann. § 99-19-101(5) and (7) (1994): (1) We, the
Jury, unanimously find from the evidence beyond a reasonable doubt
that the following facts existed at the time of the commission of the
capital murder: 1. That the Defendant actually killed Grace Blackwell.
2. That the Defendant attempted to kill Grace Blackwell. 3. That the
Defendant intended that the killing of Grace Blackwell take place. 4.
That the Defendant contemplated that lethal force would be employed.
We, the Jury, unanimously find that the aggravating circumstances of;
1. The capital offense was committed while the Defendant was engaged
in the commission of kidnapping. 2. The Capital offense was committed
while the Defendant was engaged in the commission of or an attempt to
commit the crime of rape; are sufficient to impose the death penalty
and that there are insufficient mitigating circumstances to outweigh
the aggravating circumstances, and we further find unanimously that
the Defendant should suffer death. /s/ Allen B. Perry /s/ Foreman of
3. Gray was sentenced to death by lethal injection
by the lower court at a date to be fixed by appropriate order of an
appropriate court. Gray's Motion for New Trial was overruled on
February 20, 1996. Gray awaits the outcome of this appeal while
incarcerated in the Maximum Security Unit of the State Penitentiary at
Parchman, Mississippi. Gray has raised the following issues: I.
WHETHER THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY
TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION
OF 1890. II. WHETHER THE COURT ERRED BY ADMITTING HEARSAY EVIDENCE.
III. WHETHER THE COURT ERRED IN RULING ON THE DEFENDANT'S MOTION TO
PROHIBIT PROSECUTORIAL MISCONDUCT PRIOR TO TRIAL. IV. WHETHER COMMENTS
MADE BY PROSECUTOR DURING CLOSING ARGUMENTS VIOLATED THE DEFENDANT'S
RIGHTS TO A FAIR AND IMPARTIAL TRIAL. V. WHETHER THE COURT ERRED BY
ALLOWING THE STATE'S DNA EXPERT TO TESTIFY ABOUT TEST RESULTS SHE DID
NOT PERSONALLY CONDUCT. VI. WHETHER THE COURT ERRED BY ALLOWING THE
STATE TO INTRODUCE INTO EVIDENCE THE GRUESOME PHOTOGRAPHS AND VIDEO
TAPE OF THE BODY OF THE VICTIM. VII. WHETHER THE COURT ERRED BY
ADMITTING A PHOTOGRAPH OF THE VICTIM INTO EVIDENCE BY A WITNESS WHO
WAS NOT AT THE CRIME SCENE. VIII. WHETHER THE COURT ERRED BY ALLOWING
AN INSTRUCTION TO THE JURY AS TO RAPE, WHEN THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT SUCH AN INSTRUCTION. IX. WHETHER THE JURY VERDICT
EVIDENCED BIAS AND PASSION BECAUSE OF THE TIME OF DELIBERATIONS. X.
WHETHER THE COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION FOR
CHANGE OF VENUE. XI. WHETHER THE COURT ERRED BY ALLOWING AN IN-COURT
IDENTIFICATION OF THE DEFENDANT BY A WITNESS. XII. WHETHER THE COURT
ERRED BY FAILING TO DISMISS THE INDICTMENT BECAUSE THE UNDERLYING
FELONIES WERE LISTED IN THE DISJUNCTIVE. XIII. WHETHER THE COURT ERRED
BY ALLOWING THE JAIL-HOUSE CONFESSIONS OF THE DEFENDANT TO HIS FORMER
CELL-MATES INTO EVIDENCE. XIV. WHETHER THE DEFENDANT WAS DENIED HIS
RIGHT TO COUNSEL. XV. WHETHER THE EVIDENCE IS SUFFICIENT TO SUPPORT
THE SENTENCE. XVI. WHETHER THE COURT ERRED BY GRANTING S-3 OF THE
GUILT PHASE OF THE TRIAL. XVII. WHETHER THE COURT ERRED BY GRANTING
S-4 ON CIRCUMSTANTIAL EVIDENCE AT THE GUILT PHASE OF THE TRIAL. XVIII.
WHETHER THE EVIDENCE SUPPORTED A KIDNAPPING INSTRUCTION AT GUILT PHASE
OF THE TRIAL. XIX. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE.
4. After reviewing the record, briefs, and prior
holdings of this Court, we hold that there is no reversible error in
this case. Therefore, Rodney Gray's conviction for capital murder and
the imposition of the death sentence is affirmed.
STATEMENT OF THE FACTS
5. Early in the afternoon on August 15, 1994, at
approximately 1:40 p.m., the body of seventy-nine year old Mrs. Grace
Blackwell was found at the end of a bridge in Newton County.
Investigators found broken glass, several blood stains, and tissue on
the bridge. Mrs. Blackwell's billfold, checkbook, and contents of her
purse were found near the bridge. Investigators also found a plastic
wadding from a shotgun shell.
6. Mrs. Blackwell's car was found later behind a
service station in Decatur. Large amounts of blood were found all over
the passenger side of the car, both inside and outside. A pair of
gloves was located in a dumpster near the car. The car had been
damaged on the front of the passenger side. There was blood and tissue
on the front, across the hood, windshield, and down the passenger side
of the vehicle. The interior of the car contained a great deal of
blood and glass particles on the door paneling and seat.
7. Mrs. Blackwell's body received several extensive
injuries. She had lacerations on her leg and facial area, severe
wounds to her mouth and back side of her head, along with a gash to
the back of her head. The lethal injury was a contact shotgun wound to
the mouth. She also sustained a second gunshot wound to the left side
of her face, as well as her chest and left arm. There were multiple
small entrance wounds indicating secondary missile pattern injury, as
if the shotgun had been fired through an intermediate target. This was
a non-lethal wound. Mrs. Blackwell also received multiple injuries on
her right side, where there were large scrapes of skin as if she slid
on a hard object. She had bruises over her chest wall and right lower
leg. There was also an abrasion or scrape of one inch to the labia
majora or vaginal vault, which indicated forceful sexual penetration.
The large cuts on Mrs. Blackwell had little blood, indicating they
occurred after the shotgun wound to the face. Such injuries were
consistent with being struck by a car or having fallen or been pushed
from a car. Mrs. Blackwell's death was caused from extensive bleeding
from the gunshot wound to the mouth. It would have taken a period of
time to die, as the bleeding was from secondary vessels, and not every
individual is immediately incapacitated from such a wound, as per the
medical examiner's testimony. A rape kit was taken from Mrs. Blackwell,
and the kit, as well as her clothes, were sent to the crime lab.
8. On the morning of August 15, 1994, Mrs.
Blackwell went to her local bank in Louin, Jasper County, to use the
drive-through window. Arlene McCree, the bank teller who usually
waited on Mrs. Blackwell, testified that Mrs. Blackwell was acting
strangely. Mrs. Blackwell presented a blank check for the teller to
fill out in the amount of $1200. McCree stated that she could not see
into the backseat of Mrs. Blackwell's car because there were clothes
hanging on hangers blocking her view. After McCree filled out the
check, Mrs. Blackwell snatched it back, signed it, and threw it back
to the teller. When the teller gave her the money, Mrs. Blackwell
grabbed it and drove away. As she drove off, McCree heard Mrs.
Blackwell say over the speaker, “I'm hurrying, I'm hurrying.” McCree
then contacted the Jasper County Sheriff's office and asked them to
check on Mrs. Blackwell as she thought she had been taken hostage.
9. Investigators in the Jasper County Sheriff's
office went to Mrs. Blackwell's house and discovered the front door
was open and the telephone had been disconnected. Shoe prints were
found in the front yard, and a plaster cast was made and sent to the
crime lab. The investigators began to look for Rodney Gray for
questioning in Mrs. Blackwell's murder. Gray turned himself into
authorities. When Gray was arrested on August 15, 1994, his clothes
were taken and sent to the crime lab, and he was given a jail uniform
to wear. Blood and hair samples were also taken from Gray and sent to
the crime lab.
10. Mildred Curry, who was Gray's girlfriend at the
time of the murder, gave investigators information that caused them to
search her house trailer. Gray called Mildred from jail and told her
that he had put some money away in a bathroom vent. She thought Gray
was lying. However, during the investigators' search of Curry's
trailer, $1,123 was found hidden in an air conditioner duct in a
bathroom. Mildred Curry later identified the shirt and work boots Gray
was wearing on the day of the murder. The shirt and work boots were
found in a five gallon bucket in a wooded area by a dog pen behind the
trailer. Both items were sent to the crime lab.
11. Mildred's brother, Randy, lived in the trailer
with her. He testified that Gray came home on the afternoon of August
15th wearing the striped shirt. When Randy told him that the police
wanted to talk to him, Gray went to a bedroom, changed shirts, and
then called the police.
12. Harry Jones testified that he was driving
around noon on August 15th, when he saw a brown Chrysler stopped in
the road with a guy wrestling with a lady in the car. He identified
the car that he saw as the one belonging to Mrs. Blackwell. Jones
could not tell if the woman was black or white, but clearly saw the
young, black male driving. The State asked Jones if he could identify
the driver of the car. Gray's attorneys objected stating the
identification was a product of an impermissible lineup. The lower
court overruled the objection and allowed the identification in the
courtroom to proceed. Jones identified Rodney Gray as the driver of
13. Richard Weir testified that during his lunch
break on August 15, 1994, he saw a maroon colored Chrysler pass by his
truck. He stated what caught his eye was that it was a black male and
a white female in the car. Weir also testified that it looked like the
male was trying to grab the female. Although Weir identified the car
as Mrs. Blackwell's, he could not identify the occupants.
14. Derrick Beasley stated that Gray approached him
on the afternoon of August 15th near the courthouse in Decatur.
Beasley testified that Gray had a wad of money in his pocket that he
pulled out and showed to Beasley. It was in denominations of one
hundred dollar bills. Beasley also stated that Gray was wearing the
striped shirt that the investigators later recovered from behind
15. Russell Saunders was incarcerated with Gray in
the Jasper County jail in August and September of 1994. Saunders
testified that after returning from giving the police blood samples
Gray asked “if they could tell if you had sex with a woman.” Saunders
stated that Gray had told him that he had sex with the lady that he
was supposed to have killed. Gray told Saunders that he had
accidentally shot her and then ran over her. Gray stated to Saunders
that he was not worried about the police finding the gun because he
had smashed the gun and thrown it into the woods. Saunders had also
heard Gray talking about the money that was supposed to be in a vent.
In October or November of 1995, Gray was in the Newton County jail and
told Cleveland McCall that he took Mrs. Blackwell to the bank to get
some money. McCall testified that Gray told him that he brought her
back from the bank, raped her and shot her with a .410 shotgun.
16. Several expert witnesses testified at the trial.
Lora Aria, an expert in serology, stated that she identified four
stains that could have been blood on the shirt Gray was wearing the
day of the murder. She tested the stains and determined that two were
human blood. Glass fragments recovered from the shirt found by the dog
pen were optically indistinguishable from the glass from Mrs.
Blackwell's car. There were blood stains found on the gloves recovered
from the dumpster. The gloves also contained glass fragments which
were optically indistinguishable from the glass from Mrs. Blackwell's
car. The shirt worn by Gray at the time of his arrest also contained
glass fragments that were optically indistinguishable from the glass
from Mrs. Blackwell's car.
17. David Wilson was a Special Agent to the Federal
Bureau of Investigation assigned to the Hairs and Fibers unit. He
testified that he examined hair found in Mrs. Blackwell's panties with
hair samples of Gray. His opinion was that the pubic hair found in the
panties had the same microscopic characteristics as Gray's pubic hairs.
18. Gary Kanaskie was employed by the FBI to
conduct shoe print and tire tread examinations. He compared the boots
of Gray to the boot prints found at the home of Mrs. Blackwell.
Kanaskie testified that the prints made at Mrs. Blackwell's home were
made by the boots worn by Gray. Because there were three distinctive
markings on the boots, Kanaskie testified that no other boot could
have made the prints found at Mrs. Blackwell's home.
19. Finally, Melissa Smrz was assigned to the DNA
analysis unit of the FBI. She conducted DNA tests on semen stains
found on Mrs. Blackwell's panties. She testified that DNA was
extracted from the semen and compared with blood samples from Gray. As
a result of these tests, Smrz concluded that the probability that
someone other than Gray left DNA in Mrs. Blackwell's panties was less
than 1 in 446,000,000 in Black, Caucasian, and Hispanic populations.
20. After closing arguments, the jury retired at
3:11 p.m. to determine the verdict of guilt or innocence of Rodney
Gray. The jury returned at 3:21 p.m. ready to report its verdict. The
jury unanimously found Rodney guilty of the capital murder of Mrs.
21. The jury then heard evidence as to mitigating
and aggravating circumstances to consider when determining which
sentence should be imposed on Gray. After hearing testimony from
several witnesses from the State and the defense, the jury received
its instructions from the court. Both sides then gave closing
arguments. The jury began deliberations at 12:07 p.m. to determine the
appropriate sentence. At 1:09 p.m. the jury returned to the courtroom
ready to announce its decision. The jury reached an unanimous verdict
finding that Rodney Gray should suffer death for the capital murder of
Mrs. Grace Blackwell.
22. The normal post-trial motions were filed, heard
on argument, and subsequently overruled by the lower court. Following
this ruling by the lower court, Gray perfected his appeal to this
DISCUSSION OF THE ISSUES
I. WHETHER THE DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 26
OF THE MISSISSIPPI CONSTITUTION OF 1890.
23. Gray alleges a constitutional violation of his
right to a speedy trial. On October 10, 1995, Gray filed a motion to
quash the indictment claiming he had been denied a speedy trial. A
hearing was had on this motion on October 30, 1995. After hearing
argument from both sides, the lower court overruled Gray's motion to
quash the indictment. BY THE COURT: The Defendant has filed his motion
to dismiss the indictment, the Defendant having been indicted for the
crime of murder while engaged in the commission of the crime of
kidnapping and/or rape. This indictment was returned on the 2nd day of
August of 1995. In doing so, he has brought into play Barker v. Wingo,
which requires the Court to look at the evidence and make a finding
regarding the delay, and to apply the analysis of the four prong test.
The Defense argues that the Defendant is prejudiced because of a
length of delay occurring since the arrest on August the 15th of 1994,
and says that by reason of the delay, he was prejudiced, in that since
then he has been convicted of another crime, thereby restricting his
right to give testimony in his own defense, and also because a
possible witness has died in the intervening time. The Court, in
reviewing the evidence, finds that there was a delay of 257 days,
being that time from the date of the charge on March 15th, 1995, until
the date of the trial, which is now set for trial November the 27th,
1995, being a period shortly in excess of eight months, requiring the
Court then, after determining there was a length of delay, to apply
the test and determine the reason for that delay. It appearing from
the evidence that during this period of time, the serology materials
were turned over to the Federal Bureau of Investigation for analysis,
and that immediately upon receipt of a partial report, the Sheriff of
this county filed charges. The delay of discovery being negligent does
not appear to be prejudicial and does not weigh heavily against the
State, although the Court must find that it does weigh against the
State. The second test of whether or not the Defendant asserted his
right to trial weighs against the Defendant, for the record appears
that he did not assert that he was entitled to the right to be tried
on the crime for which he was charged. Before I get away from it, I
want to say the DNA analysis being conducted by the Bureau could have
been exculpatory and beneficial to the Defendant. Therefore, that
weighs against the Defendant and whether or not he was prejudiced by
the delay. Contrary to the argument of the Defendant, the crimes for
which this Defendant was convicted in the intervening time were crimes
that he had committed prior to the burglary, kidnapping, and/or rape
and murder of the lady on August 15th, 1994, so I fail to see how he
can contend that the delay in his trial caused him to be convicted of
a crime for which he had committed prior to the date alleged in this
particular instance. It is not clear, and it was not made clear, and
the question was asked of the witness, what was the testimony of the
person deceased, and there was no response to that question. Therefore,
it has not been made clear to the Court what that witness would have
testified to. Therefore, the Court would not be in a position of
ruling whether or not the delay was prejudicial to the Defendant.
Considering, therefore, the prejudice by delay weighs against the
Defendant, and application of the test of the Barker v. Wingo, I find
that it weighs against the Defendant. Therefore, the motion is
24. “This Court has held that post-delay
determinations of cause are permissible and, when supported by
substantial credible evidence, shall not be overturned.” Hull v. State,
687 So.2d 708, 729 (Miss.1996) (citing McNeal v. State, 617 So.2d 999,
1007 (Miss.1993)). Likewise, we hold that the lower court was correct
in overruling Gray's motion to quash the indictment.
25. The murder of Mrs. Blackwell took place on
August 15, 1994. Rodney Gray was arrested that same day and charged
with burglary of Mrs. Blackwell's residence based on statements he
made to the police. He was incarcerated in Jasper County. Bond was set
for that charge, but Gray never made bond. Gray was transported to
Newton County and charged with the capital murder on March 15, 1995.
Gray was arrested in Newton County for capital murder 212 days after
his arrest for burglary in Jasper County. All the while, he remained
26. Counsel was appointed on March 22, 1995. Gray's
preliminary hearing was had on June 5, 1995. He was indicted by the
Grand Jury of Newton County on August 2, 1995. The lower court set the
trial date for November 27, 1995. This date would have been 469 days
subsequent to his initial arrest for burglary in Jasper County and 257
days from his arrest for capital murder in Newton County.
27. On November 17, 1995, the attorneys for Gray
filed a motion for continuance. The lower court granted the motion and
scheduled the trial to take place on January 22, 1996. At the time
Gray filed his motion for continuance 459 days had passed since his
initial arrest for burglary and 247 had passed since his arrest for
capital murder. When his trial began on January 22, 1996, it had been
525 days since he was arrested for burglary and 313 days since his
arrest for the capital murder of Mrs. Blackwell.
28. The State argues that at the time of Gray's
initial arrest it could not be determined if Mrs. Blackwell had been
raped. At the time of his arrest, Gary was also facing prior burglary
charges in Jasper County. On September 6, 1995, Gray pled guilty to
two burglaries and one attempted burglary. These crimes occurred prior
to Mrs. Blackwell's murder. The State contends that until the FBI
reports were received it was not clear whether Gray could be charged
with capital murder with the underlying felony of rape.
29. Gray argues on appeal that his constitutional
right to speedy trial attached August 15, 1994, the day he was
arrested for burglary. The State claims Gray's constitutional right to
a speedy trial attached on March 15, 1995, the day he was formally
charged with capital murder.
30. The constitutional right to speedy trial
attaches at the time when the defendant is first effectively accused
of the offense. Perry v. State, 419 So.2d 194, 198 (Miss.1982). This
Court has held this to begin at “ ‘time of a formal indictment or
information or else the actual restraints imposed by arrest and
holding to a criminal charge.’ ” Perry v. State, 637 So.2d 871, 874
(Miss.1994) (quoting Lightsey v. State, 493 So.2d 375, 378
(Miss.1986)). The Court finds that Gray was effectively accused of the
crime on March 15, 1995, when he was formally arrested and charged
with the capital murder of Mrs. Blackwell. However, measuring the
shortest possible time frame, 247 days (period of time Gray arrested
for capital murder until Gray filed his motion for continuance) are
attributable to the State. This is presumptively prejudicial because
it is over eight months, and the State must show Gray has not been
denied his right to a speedy trial. Smith v. State, 550 So.2d 406, 408
(Miss.1989); Rhymes v. State, 638 So.2d 1270, 1272 (Miss.1994); Hull
v. State, 687 So.2d 708, 730 (Miss.1996).
31. Inquiry must be made into the other Barker v.
Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), factors:
(2) Reason for delay; (3) Assertion of speedy trial; and (4) Prejudice.
None of the factors are dispositive, but are to be considered together.
Wiley v. State, 582 So.2d 1008, 1011 (Miss.1991); Barker, 407 U.S. at
530-33, 92 S.Ct. 2182.
(2) Reason for delay
32. The State asserts that the record does not
indicate the delay preceding Gray's trial was a part of “[a]
deliberate attempt to delay the trial in order to hamper the defense
...” Barker, 407 U.S. at 531, 92 S.Ct. 2182. Any delay is excusable if
it is attributable to the defense. Smith v. State, 489 So.2d 1389,
1391 (Miss.1986). The record clearly shows that any delay after
November 17, 1995, is attributable to the defense.
33. Gray claims the only reason for delay given by
the State was the fact that it was waiting on DNA test from the FBI
laboratory. The FBI received the evidence on September 9, 1994, and
the results of the testing were faxed to the Newton County Sheriff's
Office on March 14, 1995. Gray was charged with capital murder after
the Newton County Sheriff received the faxed information from the FBI.
34. The State claims it would have been forced to
seek a continuance until the lab results were available if Gray had
been charged with capital murder without the DNA evidence. The lower
court found that “the DNA analysis conducted by the Bureau could have
been exculpatory and beneficial to the Defendant.” This Court has
previously held the delay in time attributed to the FBI laboratory in
preparing potentially exculpatory DNA evidence weighs very slightly,
if at all, in favor of the defendant. Hull, 687 So.2d at 730. Because
these test results could have exculpated Gray and benefitted him, this
factor is not weighed heavily against the State, if at all.
(3) Assertion of the Right
35. Gray never requested a speedy trial. He moved
to dismiss his indictment because of the lack of a speedy trial. Gray
asked for the dismissal on October 13, 1995, after a trial date had
been set for November 27, 1995. At this motion hearing, Mr. Lee, one
of Gray's attorneys, stated, “The Defendant is not jeopardized in any
way at this point. In fact, it would be to his benefit for Mr. Thames
and I to be adequately prepared to go to trial, which at this time we
36. This Court has dealt with similar situations
previously. “In Adams we observed that a demand for dismissal for
violation of the right to speedy trial is not the equivalent of a
demand for speedy trial. Such a motion seeks discharge not trial.
There we held that a demand for dismissal coupled with a demand for an
instant trial was insufficient to weigh this factor in favor of the
defendant, where the motion came after the bulk of the entire period
of delay had elapsed.” Perry, 637 So.2d at 875 (citing Adams v. State,
583 So.2d 165, 169-70 (Miss.1991)). In the case sub judice, Gray filed
his motion to quash the indictment for lack of a speedy trial a little
over a month prior to his original trial date. In that motion Gray did
not request a speedy trial, but moved the lower court to dismiss the
charges against him due to a denial of his right to a speedy trial.
This factor weighs against Gray. Hull, 687 So.2d at 730; Perry, 637
So.2d at 875.
(4) Prejudice to the Defendant
37. The Supreme Court noted that prejudice to the
defendant should be examined according to the interests of the
defendant which the right to speedy trial is intended to safeguard.
Barker, 407 U.S. at 532, 92 S.Ct. 2182. Those interests are: “(i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxiety
and concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.” Id. However, in United States v.
MacDonald the Court expounded on the interests protected by the right
to a speedy trial. The Sixth Amendment right to a speedy trial is thus
not primarily intended to prevent prejudice to the defense caused by
passage of time; that interest is protected primarily by the Due
Process Clause and by statutes of limitations. The speedy trial
guarantee is designed to minimize the possibility of lengthy
incarceration prior to trial, to reduce the lesser, but nevertheless
substantial, impairment of liberty imposed on an accused while
released on bail, and to shorten the disruption of life caused by
arrest and the presence of unresolved criminal charges. United States
v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).
38. Gray was incarcerated in Jasper County from
August 15, 1994, until March 15, 1995, on a charge of burglary. His
mother, Annie Tatum, testified she visited her son every Sunday in the
Jasper County Jail. She stated that he appeared to be nervous, wanted
her to get him a lawyer, and “wanted him to find out what was going on”
by talking to the Sheriff. He attempted to take his life on two
separate occasions, once by hanging and another by overdosing on pills.
Mrs. Tatum testified that she could not afford to retain a lawyer for
her son at that time.
39. The record clearly shows that Gray had an
attorney appointed by the court to represent him on the burglary
charge for which he was being held in Jasper County. Gray had an
initial appearance on that charge and a bond was set. Gray did not
make the bond and remained in jail. Sheriff Cross testified that if
Gray had made his bond he would have been transported back to Newton
County to face a separate felony drug charge.
40. The Court holds that the period of
incarceration Gray endured in Jasper County prior to being charged
with capital murder on March 15, 1995, in Newton County was
attributable to the burglary charge. He would have been released upon
making bail, only to be incarcerated in Newton County on a felony drug
charge. Gray would have remained in jail between August of 1994 and
March of 1995 even if he had not been charged with capital murder.
41. Gray was arrested in March of 1995 for capital
murder of Grace Blackwell. He was indicted in August of 1995. His
trial date was originally set for November 27, 1995. After he was
granted a continuance, Gray's trial began on January 22, 1996. There
was no oppressive pretrial incarceration, and no prejudice was
suffered by Gray as a result of this incarceration.
42. The testimony by Annie Tatum suggested that
Gray suffered anxiety and nervousness during his incarceration in
Jasper County. Any suffering endured by Gray was during the time he
was charged for the burglary. Although Gray may have been a suspect
for the murder of Mrs. Blackwell, he suffered no anxiety because of
the capital murder charge against him. Gray was not charged with
capital murder until March of 1995 when he was transported to Newton
County. The record does not indicate any anxiety or nervousness
suffered by Gray while he was held in Newton County.
43. The last interest enumerated in Barker is the
possibility of impairment to the defense. Barker, 407 U.S. at 532, 92
S.Ct. 2182. Gray raised several facts that he claims impaired his
defense. The first is that he had no attorney during his time of
incarceration in Jasper County. The record clearly refutes this claim.
Sheriff Cross testified that Gray had an attorney appointed for him to
defend him on the burglary charge for which he had been arrested. No
capital murder charge had been brought against Gray until March 15,
1995. No attorney would have been appointed for Gray to defend him on
that charge until after it had been brought.
44. Secondly, Gray claims that a witness named
Latrelle Page could have testified for him, but had been killed in a
car accident in May of 1995. “If witnesses die or disappear during a
delay, the prejudice is obvious.” Id. Mrs. Tatum testified that Gray
had told her Page could testify to help him or possibly clear him of
this crime. When cross-examined by the State, Mrs. Tatum stated that
she did not know what Page knew or would say. She stated Gray told her
before May of 1995 that Page knew what happened.
45. The allegations concerning a witness who would
testify to exonerate the defendant are unfounded. The trial judge
noted that the question was put forth as to what the person would have
testified to and no response was given. This was merely supposition.
There can be no prejudice to the defendant when the possibility is
insubstantial, speculative and premature.
46. The attorneys defending Gray against the
capital murder charges were appointed on March 22, 1995. The record
before this Court is void of any attempt by Gray or his attorneys to
secure the testimony of Latrelle Page prior to his death in May of
1995. Mrs. Tatum testified that Gray told her about Page before May of
1995. This factor weighs against Gray. This Court has held that the
failure to attempt to secure a witness is fatal to the claim of actual
prejudice. Rhymes, 638 So.2d at 1274.
47. Thirdly, Gray claims that the testimony of
witness inmates, Russell Saunders and Cleveland McCall, who heard
incriminating statements by Gray may have never taken place if he had
an attorney. This assertion is without merit. Statements made to
Russell Saunders were made in either August or September of 1994.
While Gray did not have an attorney appointed to defend the capital
murder charges until March of 1995, he did have an attorney appointed
to represent him as to the burglary charges. McCall testified that the
statements made by Gray to him were in October or November of 1995 FN1
while Gray was incarcerated in Newton County. The attorneys appointed
to defend him on the capital murder charge were appointed on March 22,
1995. FN1. The transcript testimony of McCall does not refer to a year.
The testimony of McCall taken together with that of Sheriffs Cross and
Hannah indicate the year to be 1995. Cross testified that Gray was
transferred to Newton County in March of 1995, where he remained until
48. Gray's argument to this Court that if he had an
attorney he might not have made the statements to Saunders and McCall
is without merit. The record clearly shows that he had representation
during the time these statements were made. In fact, at the time he
made the statements to McCall in October or November of 1995, Gray was
represented by his court-appointed attorneys who defended him against
the capital murder charges.
49. Lastly, Gray claims he pled guilty to three
unrelated felonies in September of 1995 in Jasper County, which made
him a convicted felon for cross-examination purposes. He alleges this
deterred him from testifying in his own defense. The footnote on page
23 of Gray's appeal brief states his pleading guilty was done without
the consent or knowledge of his attorneys. Because the attorneys were
appointed in March of 1995, they should have known of this action by
Gray in September of 1995. This factor weighs against Gray in his
claim of prejudice.
50. The State also asserts that the United States
Supreme Court has held that the right to a speedy trial does not
require the government to formally accuse a person of a crime within
any particular period of time. In United States v. Marion, 404 U.S.
307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), we held that the Speedy
Trial Clause of the Sixth Amendment does not apply to the period
before a defendant is indicted, arrested, or otherwise officially
accused: “On its face, the protection of the Amendment is activated
only when a criminal prosecution has begun and extends only to those
persons who have been ‘accused’ in the course of that prosecution.
These provisions would seem to afford no protection to those not yet
accused, nor would they seem to require the Government to discover,
investigate, and accuse any person within any particular period of
time. The Amendment would appear to guarantee to a criminal defendant
that the Government will move with the dispatch that is appropriate to
assure him an early and proper disposition of the charges against him.”
MacDonald, 456 U.S. at 6-7, 102 S.Ct. 1497.
51. The Court further stated, “[a]lthough delay
prior to arrest or indictment may give rise to a due process claim
under the Fifth Amendment, ..., or to a claim under any applicable
statutes of limitations, no Sixth Amendment right to a speedy trial
arises until charges are pending.” Id. at 7, 102 S.Ct. 1497.
52. Gray was not formally accused of capital murder
until he was arrested on March 15, 1995, and transported to the Newton
County jail. The record indicates that Gray was not indicted for the
burglary of Mrs. Blackwell's home. However, the record does reveal
that counsel was appointed to represent Gray on that burglary charge.
Any speedy trial claim or violation of due process allegation would be
associated with the burglary charge for which he was arrested on
August 15, 1994.
53. After deducting the time attributable to Gray's
motion for continuance, the length of delay is 247 days. This is very
close to the “eight month measuring stick” used by this Court. The
overall delay was not excessive for a capital murder case. As noted by
the lower court, Gray was in a position to benefit from the DNA
evidence if it exculpated him from being prosecuted for the murder of
54. Gray has failed to show that the State
intentionally held back its prosecution in order to gain some
impermissible advantage at trial. Where the delay is not intentional
and there is no showing of actual prejudice, the balance should be
struck in favor of rejecting Gray's speedy trial claim. Rhymes, 638
So.2d at 1275.
55. The Court holds that Gray was not denied his
right to a speedy trial. His argument is without merit.
II. WHETHER THE COURT ERRED BY ADMITTING HEARSAY
56. Gray's second argument on appeal contends the
testimony of Arlene McCree constituted impermissible hearsay. McCree
was the bank teller who waited on Mrs. Blackwell at the Peoples Bank
of Louin drive-through window on the morning of August 15, 1994. She
testified that when she asked Mrs. Blackwell if there was anything
wrong or if she had someone with her, she received no response from
Mrs. Blackwell. McCree stated that she heard Mrs. Blackwell over the
bank's drive-through speaker saying “I'm hurrying, I'm hurrying” as
she drove off. A: ... and I asked her one last time was someone in the
car with her, and couldn't get anything out of her, and I finally, you
know, pushed the button to let the tray out, and when I did that, she
reaches in and grabs it, and then I'm tying to let the tray back, and
she takes off, and she was always a careful driver, and the car just
jerks it down and pulls out, and I could hear a voice on the speaker
saying- BY MR. LEE: Wait just a minute now. I am going to object to
what she heard over the speaker, Your Honor. BY THE COURT: Did you
recognize the voice of Mrs. Blackwell? A: Yes, sir. It was Mrs.
Blackwell saying, “I'm hurrying, I'm hurrying.” BY THE COURT:
Objection overruled. Q: (Turner) What was Mrs. Blackwell saying as she
was pulling away? A: “I'm hurrying, I'm hurrying.” Q: Was she speaking
to you? A: I have no idea. She was looking out. I didn't think she was
speaking to me, and that's when I thought I was right.
57. Prior to this colloquy, McCree testified that
she had known Mrs. Blackwell since 1980, when McCree began working at
the bank. McCree considered Mrs. Blackwell a friend and tried to wait
on her when she came into the bank. McCree stated that on the morning
of August 15, 1994, Mrs. Blackwell would not engage in conversation
with her and would not even look at her, which was highly unusual. She
further testified that Mrs. Blackwell requested $1200 dollars and
presented a blank check. McCree stated that Mrs. Blackwell always
filled out her checks, which were normally for not more than $100.
McCree filled out the check for her and returned it for her to sign.
McCree described Mrs. Blackwell as acting out of the ordinary because
“she was not conducting normal business.”
58. Gray argues that hearsay evidence is
incompetent. Murphy v. State, 453 So.2d 1290, 1294 (Miss.1984).
Without any further citation, he claims that McCree's repeating Mrs.
Blackwell saying “I'm hurrying, I'm hurrying” could not be admitted as
an exception to hearsay under Miss. R. Evid. 803 as a present sense
impression or excited utterance because this was a response to an
apparent order or directive.
59. The State submits the statement was not hearsay.
We agree. A statement is hearsay if it is an assertion. Miss. R. Evid.
801(a). The statement was not offered to prove the truth of the matter
asserted. Miss. R. Evid. 801(c). The statement was not offered to
prove that Mrs. Blackwell was hurrying. The statement was directed at
someone else and likely was not intended to be heard by McCree. This
Court has held that a statement offered for the fact that it was said
does not fit the definition of hearsay. See Knight v. State, 601 So.2d
403, 406 (Miss.1992). The Court holds that the statements were not
hearsay, and the issue is without merit.
III. WHETHER THE COURT ERRED IN RULING ON THE
DEFENDANT'S MOTION TO PROHIBIT PROSECUTORIAL MISCONDUCT PRIOR TO TRIAL.
60. Gray filed a motion prior to trial to prohibit
prosecutorial misconduct. The lower court stated that the motion would
be ruled upon during the trial upon timely objection. Gray
speculatively argues that had the lower court sustained the motion
prior to trial, the allegedly impermissible arguments to the jury by
the prosecution might not have been made. 
61. First, Gray does not cite any authority to
support his claim that the lower court should have made such a ruling
prior to trial. “This Court has repeatedly held that failure to cite
authority may be treated as a procedural bar, and it is under no
obligation to consider the assignment.” Weaver v. State, 713 So.2d
860, 863 (Miss.1997) (citing McClain v. State, 625 So.2d 774, 781
(Miss.1993)). “If a party does not provide this support this Court is
under no duty to consider assignments of error when no authority is
cited.” Hoops v. State, 681 So.2d 521, 526 (Miss.1996). This
assignment of error is procedurally barred.  
62. Alternatively, it is without merit. The trial
court did not abuse its discretion by holding it would rule on the
motion upon timely objection. Prosecutors are presumed to act in
accordance with the Constitutions of both the United States and
Mississippi, along with binding case law, rules of court, and rules of
professional conduct. It would have been next to impossible for the
trial judge to have covered with an admonition every potential act, if
committed by the prosecution, that would have constituted misconduct.
Attorneys are expected to act according to the parameters set forth
above. Any deviation from such binding authority could have been dealt
with by the lower court upon the defense entering a timely objection.
Gray's assertion that had the lower court sustained the motion and
instructed the prosecution to refrain from such conduct his argument
would probably be moot is purely supposition.
IV. WHETHER COMMENTS MADE BY PROSECUTOR DURING
CLOSING ARGUMENTS VIOLATED THE DEFENDANT'S RIGHTS TO A FAIR AND
63. In the closing argument of the guilt phase
portion of the trial, the State made the following argument: BY MR.
TURNER: We presented so much evidence against this Defendant that the
only reasonable verdict in this case is guilty of capital murder, and
I know that, and you know that, Mr. Duncan knows that, the Defense
lawyers know that, the Judge knows that, and everybody sitting in this
room for the last three days knows that. BY MR. LEE: Your Honor, wait
just a minute. I am going to object to that. That was improper
argument, pointing out who should know that, the Court should know it.
That is very improper, Your Honor, and I am going to object to that.
BY THE COURT: A lawyer is given great latitude in making his closing
arguments. That is the attorneys for the State and the Defendant. He
is entitled to argue the facts of a case and the inferences flowing
from those facts, and his conclusions known to himself and to others.
He is entitled to make an expression as to what the evidence indicates.
Your objection is overruled.
64. Gray contends that allowing the State to inject
that the judge and the defense attorneys know the only reasonable
verdict was guilty of capital murder shocks the conscience. Gray also
argues that by overruling the objection the judge gave credence to the
statements made by the State that the only reasonable verdict was
guilty of capital murder. Gray correctly asserts that this Court has
warned prosecutors to “ ‘refrain from interjecting personal beliefs
into presentation of their cases.’ ” Hunter v. State, 684 So.2d 625,
637 (Miss.1996) (quoting Chase v. State, 645 So.2d 829, 854-55
(Miss.1994)).  
65. Attorneys “in a criminal prosecution are given
broad latitude during closing arguments.” Ballenger v. State, 667
So.2d 1242, 1269 (Miss.1995) (quoting Ahmad v. State, 603 So.2d 843,
846 (Miss.1992)). The State “ ‘may comment upon any facts introduced
in evidence’ and ‘may draw whatever deductions seem to [it] proper
from these facts.’ ” Hunter, 684 So.2d at 637 (citation omitted).
66. Gray contends that the great latitude given to
prosecutors does not allow them to argue to the jury what the judge or
the defense attorneys know. Further, he states that such comments by
prosecutors cannot be considered expressions as to what the evidence
67. The comments of the State in closing argument
must be considered in the context they were made. Wilcher v. State,
697 So.2d 1087, 1112 (Miss.1997). The State contends that it was
emphasizing the weight of the evidence. The State claims it was
arguing to the jury that anyone who had watched the trial and heard
the evidence would agree that the only reasonable verdict was guilty
of capital murder.
68. The Court has previously ruled on personal
opinion comments in Blue v. State, 674 So.2d 1184 (Miss.1996). There
the Court held We find that the prosecutor's comments regarding Blue's
guilt and the punishment due him were not personal opinion comments.
The prosecutor never said that she believed Blue was guilty or that
she believed that Blue deserved the death penalty. Reviewing the
statements in context, the prosecutor simply argued that the evidence
adduced at trial proved guilt beyond a reasonable doubt and supported
a penalty of death. Id. at 1208.
69. The statements in the case presently before the
Court are somewhat different. The prosecutor stated, “We presented so
much evidence against this Defendant that the only reasonable verdict
in this case is guilty of capital murder, and I know that, and you
know that, Mr. Duncan knows that, the Defense lawyers know that, the
Judge knows that, and everybody sitting in this room for the last
three days knows that.” However, like the prosecutor in Blue, the
prosecutor in the case presently before the Court did not say he
believed the defendant was guilty. Rather, he stated that based on the
evidence that had been presented everyone knew the only reasonable
verdict was guilty of capital murder. The prosecutor argued the
evidence proved guilt beyond a reasonable doubt. Blue, 674 So.2d at
70. These statements come perilously close to the
type of statements this Court has warned prosecutors to avoid using in
the presentation of their cases. Hunter, 684 So.2d at 637. The Court
is mindful that our decisions in Hunter and Blue were handed down
after this case was tried. Blue was decided by this Court on February
15, 1996, and the motion for rehearing was denied on June 6, 1996.
Hunter was decided on June 27, 1996, and modified on denial of
rehearing on December 5, 1996. The prosecution in this case did not
have the benefit of these two cases when it tried this case on January
22, 1996. 
71. Because of our holdings in Blue and Hunter, we
cannot say these statements were not error. However, in light of the
overwhelming evidence in this case against Gray, we also cannot say
the jury verdict was influenced by the prosecutor's argument so as to
prejudice Gray. “Where a prosecutor has made an improper argument, the
question on appeal is ‘whether the natural and probable effect of the
improper argument of the prosecuting attorney is to create an unjust
prejudice against the accused as to result in a decision influenced by
the prejudice so created.’ ” Wells v. State, 698 So.2d 497, 507
(Miss.1997) (quoting Davis v. State, 530 So.2d 694, 701 (Miss.1988)).
72. Because of the overwhelming evidence of guilt,
we hold that any error does not rise to the level of reversal. We take
this opportunity to once again emphasize our criticisms and concerns
from our holdings in Blue and Hunter with regard to personal belief
comments interjected into arguments by the prosecution. Simply put, it
should not be done. SENTENCING PHASE- 
73. Gray claims that during the sentencing phase
the prosecutor made an improper argument. The prosecutor stated the
following: BY MR. DUNCAN: In prison, if that's what you decide to give
Rodney Gray, he is still going to have a certain quality of life.
Granted it won't be the best in the world, but he will still have it.
He will still be able to look out and see the sunshine. He will still
have a relationship with his family, if they choose to have one with
him. He will be able to talk to them, visit with them, communicate
with them, and enjoy certain things, but Grace Blackwell's family,
their only relationship with her will be their memories of her, their
prayers, and visiting her in the graveyard. Grace Blackwell had a
great-grandchild that she will never know. She has got a daughter,
grandchildren, great-grandchildren, that have been cheated out of
years- BY MR. LEE: Your Honor, I- BY MR. DUNCAN: -of relationship- BY
MR. LEE: Wait just a minute, Mr. District Attorney. I am going to have
to interpose an objection to this. This is not proper as to this crime
that was committed, Your Honor. I am going to object to it. BY THE
COURT: I am going to sustain the objection. BY MR. LEE: I would ask
that the jury disregard it. BY THE COURT: Motion overruled.  
74. Gray complains that the lower court compounded
the problem by refusing to instruct the jury to disregard the remarks
made by the prosecutor after ruling them to be improper. “Where
counsel lacks the self-discipline necessary to avoid arguments such as
these, that discipline should be imposed by the trial judge from the
bench.” Bridgeforth v. State, 498 So.2d 796, 801 (Miss.1986). “The
purpose of closing argument is to enlighten the jury, not to enrage it.”
75. The State responds that Gray's reliance on this
Court's holding in Bridgeforth is misplaced. In the case at bar, the
State did not vilify Gray. The prosecuting attorneys commented on the
evidence that had been presented to the jury. The prosecution was
attempting to enlighten the jury by giving a summation on the victim
impact evidence that had just been presented. The State contends that
it was not necessary for the judge to admonish the jury since victim
impact evidence is proper for the jury to consider. “This Court found
in Hansen v. State, 592 So.2d 114 (Miss.1991), and in numerous cases
since, that such argument is not prohibited pursuant to the U.S.
Supreme Court's holding in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct.
2597, 115 L.Ed.2d 720 (1991).” Chase v. State, 699 So.2d 521, 537
(Miss.1997). Further, the State submits the impact of the murder on
the victim's family is part of the crime committed by the defendant.
The United States Supreme Court has held that juries “should consider
the circumstances of the crime in deciding whether to impose the death
penalty.” Tuilaepa v. California, 512 U.S. 967, 976, 114 S.Ct. 2630,
129 L.Ed.2d 750 (1994). 
76. When looking at the entire closing arguments of
the State during both the guilt phase and the sentencing phase of the
trial any misconduct does not rise to the level of reversible error.
“To constitute a due process violation, the prosecutorial misconduct
must be (‘of sufficient significance to result in the denial of the
defendant's right to a fair trial’).” Greer v. Miller, 483 U.S. 756,
765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (citation omitted).
77. These isolated statements by the prosecution
did not deprive Rodney Gray of a fair trial. These comments standing
alone were not sufficient to cause the jury to convict Gray of capital
murder and sentence him to death. The evidence was overwhelmingly in
favor of those verdicts. The guilty verdict was returned in ten
minutes, and the sentence of death was returned in an hour.
78. Based on the overwhelming weight of the
evidence, it cannot be said that but-for the prosecutors' statements
Rodney Gray would have not been convicted or received a lighter
sentence. This issue does not require reversal.
V. WHETHER THE COURT ERRED BY ALLOWING THE STATE'S
DNA EXPERT TO TESTIFY ABOUT TEST RESULTS SHE DID NOT PERSONALLY
79. The State's DNA expert, Melissa N. Smrz,
testified as to her conclusions that the semen stains collected from
the panties of Mrs. Blackwell and the blood samples taken from Gray
contained the same DNA. Gray argues that the lower court erred by not
excluding her testimony because she did not personally conduct the DNA
testing, her testimony was hearsay and a denial of his constitutional
right to confrontation and cross-examination.
80. Ms. Smrz testified that everything up to the
point of evaluating the autoradiographs and doing the sizing and
writing the report is done by someone else. She stated that a
technician under her supervision ran the tests and created the
autoradiographs. But, she actually evaluated the autoradiographs and
did the sizing procedure.
81. On cross-examination Ms. Smrz testified as
follows: Q. Okay. I don't want to repeat myself, but you are in
actuality testifying before this jury what somebody under you actually
did, and you are verifying the results? A. That is correct. My role is
somewhat like a doctor in a hospital who has a lot of individuals who
work on patient information or patient data, like a laboratory
technician, or a nurse, or X-ray technician, and then that doctor is
responsible for putting all that information together and evaluating
and making diagnosis. It is a similar role.
82. On redirect, she testified a mistake in the
testing would not cause a false identification. Q. And, when you
review the results and supervise these tests, if there were a mistake
to be made, would that in any way be able to somehow make a match
where there was no match, or would it just result in no result at all?
A. If the DNA test isn't done correctly, in that some chemical or
correct chemical is not used, or the electrophoresis procedure is run
too long, something that is not followed as part of the protocol, or
if you will, recipe for that particular test, the test will not work,
and we can tell that by the control that we use. The only type of
error, what you are talking about, having a sample match when it
really didn't, would be a sample mixup, and that is a human error.
Again, with the chemicals and everything that we use, we know from the
results of our control work that we did the test correctly, and in our
laboratory we take great pains and a lot of quality control to make
sure there are no sample mixups. I showed you on the diagram that we
have our known samples separated from our questioned samples, so that
you don't accidentally get a known sample put into a questioned lane.
We also handle one sample at a time. We are working anytime on the
bench one case at a time. We don't have a lot of cases out on the same
bench where there would a chance for a mixup.
83. At the conclusion of Ms. Smrz's testimony, Gray
moved that it be excluded. BY MR. LEE: Your Honor, I would first like
to make a motion to exclude the testimony of the witness Smrz for the
reason by her own testimony, she did not perform these tests. All she
did was read the results. She has even testified that she probably was
not even in the laboratory or in her office when these tests were run.
That these tests were performed by people under her. So, all she can
testify to is that they were supposedly done through the procedures
established by the FBI laboratory, but she doesn't have firsthand
knowledge of these tests actually being performed. Therefore, we are
going to ask that her testimony be stricken and the jury ordered to
disregard it. BY THE COURT: I think Mrs. Smrz has satisfactorily
explained the procedure that is followed there in her department, in
that she is the head of that department. That the tests were performed
under her direction and control, and that she herself verified the
results of the tests made by others. She gave a satisfactory
explanation and compared it to a physician who has nurses and X-ray
technicians and others who perform tests, but she makes an analysis of
those tests and gives her conclusions. Therefore, your motion is
overruled.  
84. “The relevancy and admissibility of evidence
are largely within the discretion of the trial court and reversal may
be had only where that discretion has been abused.” McIlwain v. State,
700 So.2d 586, 590 (Miss.1997) (citing Hentz v. State, 542 So.2d 914,
917 (Miss.1989)). Further, “[t]he qualifications of an expert in
fields of scientific knowledge is left to the sound discretion of the
trial judge.” Hall v. State, 611 So.2d 915, 918 (Miss.1992). The trial
judge's discretion must be within the boundaries of the Mississippi
Rules of Evidence. McIlwain, 700 So.2d at 590.
85. Ms. Smrz's testimony was clearly admissible
according to Miss. R. Evid. 703. Miss. R. Evid. 703 provides: The
facts of data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to him at
or before the hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence. Comment
There are three possible sources which may produce an expert's facts
or data. Practice in Mississippi already recognizes two of them: (1)
where the expert bases his opinion on personal observation, and (2)
where he bases it either on a hypothetical question presented to him
at trial or on the trial testimony of others which the expert has
heard while sitting in the courtroom. See Collins v. State, 361 So.2d
333 (Miss.1978). The new practice under Rule 703 brings a third source:
the presentation of data to the expert outside of court and other than
by his personal observation. The Advisory Committee's Note to FRE 703
presents a persuasive rationale for the use of the third source. A
physician, for example, bases his medical diagnosis of his patient on
many sources. Most of his sources are admissible in evidence but only
with the expenditure of substantial time in producing and examining
various authenticating witnesses. Since these sources provide the
doctor with information that he utilizes in making life-and-death
decisions, his validation of them ought to be sufficient for trial,
especially since he can be cross-examined. Miss. R. Evid. 703 and cmt.
86. Ms. Smrz testified that the procedures used in
her lab to extract and test DNA is the same procedure used “in the
country and throughout the world, but it is also used in medical
diagnostic laboratories and paternity testing laboratories.” She
stated this was the procedure generally accepted within the scientific
community as reliable. Ms. Smrz compared herself to a doctor who
analyzes patient information collected by nurses, laboratory
technicians, or X-ray technicians, and makes a medical diagnosis based
on that information. Rule 703 allows an expert to base his opinion on
the opinions of others which are not in evidence so long as experts in
the field ordinarily rely on such opinions in forming their own
opinions. For example, a psychiatric expert may rely on the reports of
a patient's psychiatric history in arriving at his diagnosis. In such
circumstances, the opinion of the nontestifying expert would serve
simply as a premise supporting the testifying expert's opinion on a
broader issue.... Hull, 687 So.2d at 716 (quoting Kim v. Nazarian, 216
Ill.App.3d 818, 159 Ill.Dec. 758, 764-65, 576 N.E.2d 427, 433-34
87. The testimony of Ms. Smrz is the third source
of expert testimony referred to in the comment to Miss. R. Evid. 703.
Ms. Smrz based her opinion and testimony on her analysis of the DNA
extracted by technicians under her control. The Court finds her
testimony was permissible under Miss. R. Evid. 703. 
88. Gray contends that he could not cross-examine
Ms. Smrz as to how the actual tests were performed, other than what
the procedure was, thus denying him his right to crossexamine and
confront those who actually performed the tests. Although Gray did not
specifically raise a Sixth Amendment Confrontation Clause objection,
the objection raised was sufficient to preserve this question for
consideration on appeal.
89. Gray relies on Kettle v. State, 641 So.2d 746,
749-50 (Miss.1994), where the prosecution attempted to introduce
results from laboratory testing through a records custodian, not an
expert. The Court reversed holding the “defendant was entitled to have
the person who conducted the test appear and testify in person.” Id.
at 750. In Barnette v. State, 481 So.2d 788, 791 (Miss.1985), the
Court held that “a defendant's confrontation clause rights were
violated where the analyst who performed certain tests was not
available to testify.” Hull, 687 So.2d at 717. The Court in Hull found
no error where the defendant faced the scientist who actually
performed the tests. Id.
90. In the case sub judice Gray was able to
confront and cross-examine the expert who evaluated the
autoradiographs and did the sizing procedure, Ms. Smrz. She based her
opinions and testimony on the results of her examinations of the test
results. This was permissible testimony under Miss. R. Evid. 703 and
did not violate Gray's Sixth Amendment right to confront witnesses. He
was able to cross-examine and confront Ms. Smrz. Therefore, this issue
is without merit.
VI. WHETHER THE COURT ERRED BY ALLOWING THE STATE
TO INTRODUCE INTO EVIDENCE THE GRUESOME PHOTOGRAPHS AND VIDEO TAPE OF
THE BODY OF THE VICTIM. 
91. Gray argues that the State, over his objection,
introduced into evidence a series of gruesome photographs and a video
tape FN2 of the victim that unfairly prejudiced him because it incited
and inflamed the jury. Photographs of bodies are admissible as long as
they have probative value, and are not so gruesome as to be overly
prejudicial and inflammatory. Stringer v. State, 500 So.2d 928, 934
(Miss.1986). FN2. Exhibits 3, 4, 5, 30, 31, 32, 33, and 34.  
92. This Court's position as to the admissibility
of photographs is well settled. In Westbrook v. State, 658 So.2d 847,
849 (Miss.1995), this Court found that photographs of a victim have
evidentiary value when they aid in describing the circumstances of the
killing, Williams v. State, 354 So.2d 266 (Miss.1978); describe the
location of the body and cause of death, Ashley v. State, 423 So.2d
1311 (Miss.1982); or supplement or clarify witness testimony, Hughes
v. State, 401 So.2d 1100 (Miss.1981). The admissibility of photographs
rests within the sound discretion of the trial court. Jackson v. State,
672 So.2d 468, 485 (Miss.1996); Griffin v. State, 557 So.2d 542, 549
(Miss.1990); Mackbee v. State, 575 So.2d 16, 31 (Miss.1990); Boyd v.
State, 523 So.2d 1037, 1039 (Miss.1988). Moreover, the decision of the
trial judge will be upheld unless there has been an abuse of
discretion. Westbrook, 658 So.2d at 849. The “discretion of the trial
judge runs toward almost unlimited admissibility regardless of the
gruesomeness, repetitiveness, and the extenuation of probative value.”
Hart v. State, 637 So.2d 1329, 1335 (Miss.1994)(quoting Williams v.
State, 544 So.2d 782, 785 (Miss.1987)). Brown v. State, 690 So.2d 276,
289 (Miss.1996). “The same standards applicable to determining the
admissibility of photographs are applicable to video tapes.” Blue, 674
So.2d at 1210; See Holland v. State, 587 So.2d 848, 864 (Miss.1991).
93. The State submits that all of the photographs
admitted into evidence had significant probative value. State's
Exhibit 3 was used by the prosecution to identify the victim in the
case, Mrs. Grace Blackwell. It was also used by investigators to
describe the injuries to Mrs. Blackwell that they observed when they
arrived at the scene. Dr. Hayne used State's Exhibit 3 extensively in
his description of Mrs. Blackwell's wounds. State's Exhibit 4 was also
used to identify the victim and her condition at the crime scene. Dr.
Hayne referred to State's Exhibits 4 and 33 to illustrate the large
gash and laceration found on Mrs. Blackwell's leg. He testified that
the wounds had little blood indicating they were sustained after she
was shot when she was either hit by the car or fallen or pushed from
94. State's Exhibit 5 was used to identify the
victim and describe her condition when her body was found. Dr. Hayne
testified using State's Exhibit 5 to describe the entrance wound and
the wound track of the shotgun wound to Mrs. Blackwell's mouth. He
showed the jury the powder residue visible on the picture indicating
it was a contact wound.
95. State's Exhibit 31 was used by Dr. Hayne to
describe the gaping cuts sustained by Mrs. Blackwell produced by the
exit shotgun wound. State's Exhibit 32 was used by Dr. Hayne to
explain the multiple gunshot pellet wounds, as well as the smaller
secondary missile fragment wounds. The State used this testimony to
prove its theory that Mrs. Blackwell was shot in the passenger seat
through the driver's side car window.
96. Lastly, State's Exhibit 34 was necessary to
show the injury to Mrs. Blackwell's vaginal vault. The picture
illustrated the one inch abrasion that Dr. Hayne testified was caused
by force. This photograph was probative to convince the jury that any
sexual intercourse which occurred was not consensual. Any prejudicial
effect this photograph may have had on the jury was outweighed by its
97. We hold that the photographs were not
introduced into evidence as an attempt by the prosecutor to incite or
inflame the jury so as to unfairly prejudice Gray. Rather, the
prosecution introduced the photographs to accurately depict the
injuries sustained by the victim causing her death and the crime scene
as it was discovered by the investigating officers. Although the
photographs are not attractive, they are permissible when they
accurately depict the wounds suffered by the victim and the posture of
body at the scene of the crime. Brown, 690 So.2d at 289. The lower
court did not abuse its discretion in admitting the photographs into
98. State's Exhibit 30, the video tape, was
narrated at trial by Chief Deputy Ron Davis. The defense attorneys
objected to parts of the video where the camera zoomed in on certain
parts of Mrs. Blackwell's body. The tape was played for the court with
the jury out so that the lower court could make a determination as to
its admissibility. Mr. Lee, one of Gray's attorneys, objected to the
portion of the video that shows Mrs. Blackwell's body being moved onto
a stretcher. The Court held the views of the body were admissible, but
the removal of the body to the stretcher was not. However, the
prosecutor stopped showing the tape prior to the closeup scenes of Mrs.
Blackwell's body, which was the basis of Mr. Lee's objection. The jury
did not see this portion of the tape. BY THE COURT: All right. Now, on
the record, the District Attorney, Mr. Lee, has announced that he
stopped showing the video there at the scene where it was showing the
bridge, without showing the features of the body. That was your
objection that it was gruesome and prejudicial. So, that has not been
shown to the jury. Do you understand that? BY MR. LEE: Yes, sir. BY
THE COURT: The record will so reflect that only the physical body
itself was shown and not the closeup view that Mr. Lee objected to. BY
MR. LEE: All right.
99. The State submits this issue as it pertains to
the video tape is moot since the objectionable portions were not shown
to the jury. We agree. Further, any other objection Gray might have on
appeal has not been argued in his brief. Even if there were other
objections raised, they are procedurally barred. Gray failed to raise
any other objection to the video tape other than the one discussed
above. Therefore, the procedural bar should be applied. See Lester v.
State, 692 So.2d 755, 772 (Miss.1997); Davis v. State, 684 So.2d 643,
658 (Miss.1996); Williams v. State, 684 So.2d 1179, 1193 (Miss.1996);
Blue, 674 So.2d at 1208.
100. The State did not seek to incite or inflame
the jury by the introduction of the photographs and video tape. The
lower court did not abuse its discretion by admitting the photographs
and video tape into evidence. Furthermore, the jury did not see the
portion of the video tape that was objectionable to the defense.
Clearly, any alleged prejudicial effect on the jury was outweighed by
the probative value of this demonstrative evidence.
VII. WHETHER THE COURT ERRED BY ADMITTING A
PHOTOGRAPH OF THE VICTIM INTO EVIDENCE BY A WITNESS WHO WAS NOT AT THE
101. As discussed above, the admissibility of
photographs is within the sound discretion of the trial judge.
Alexander v. State, 610 So.2d 320, 338 (Miss.1992); Ladner v. State,
584 So.2d 743, 753-54 (Miss.1991). Unless an abuse of that discretion
can be shown, the lower court's decision will be upheld on appeal.
Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996). 
102. Arlene McCree, the bank teller, was the third
witness for the State. McCree testified that she had cashed a check
for Mrs. Blackwell on the morning of August 15, 1994. The prosecution
presented McCree with State's Exhibit 3 for the purposes of
identifying Mrs. Blackwell. This photograph was admitted into evidence
through McCree's testimony.
103. Gray's attorney, Mr. Lee, objected to the
admission of the photograph stating it was irrelevant at that point in
the trial and could only serve to inflame and prejudice the jury. This
objection was overruled. On appeal, Gray argues that no testimony had
been introduced as to the cause of death or the circumstances under
which the death occurred at the time McCree testified. Therefore, the
admission of the photograph, State's Exhibit 3, through the testimony
of McCree was an abuse of the lower court's discretion.
104. The State responds that the photograph had
probative value. The picture was presented to McCree by the
prosecution to identify Mrs. Blackwell. Q. Mrs. McCree, you said you
have known Mrs. Blackwell since approximately 1980 when you began
working at the bank; is that correct? A. Yes, sir. Q. I need to show
you this picture and ask if you can identify this as Mrs. Blackwell?
A. Yes, sir. Gray acknowledges this in his brief, but then argues the
photograph has no probative value.
105. The Court finds that the admission of the
photograph, State's Exhibit 3, was not an abuse of the lower court's
discretion. The photograph was admitted through the testimony of
McCree to identify Mrs. Blackwell. It was an integral part of the
State's case to prove that the person in the picture who had been
found dead and identified as Mrs. Blackwell was the same person that
McCree had waited on at the bank. 
106. Even if the photograph had not been admitted
through the testimony of McCree, the State contends it would have been
admitted during Dr. Hayne's testimony. Any error committed by the
trial judge in admitting the photograph through the testimony of
McCree was harmless. We agree and hold this issue is without merit.
VIII. WHETHER THE COURT ERRED BY ALLOWING AN
INSTRUCTION TO THE JURY AS TO RAPE, WHEN THERE WAS INSUFFICIENT
EVIDENCE TO SUPPORT SUCH AN INSTRUCTION.
107. Gray claims as his eighth assignment of error
that the jury was improperly instructed on the underlying felony of
rape. The prosecution offered Instruction S-6 to define the crime of
rape. The Court instructs the Jury that any person who shall forcibly
ravish any female above the age of fourteen (14) years by having
sexual intercourse with said female against her will by the use of
force or by the threat of personal injury shall be guilty of the crime
of rape. 
108. Gray contends this instruction did not
properly instruct the jury on the underlying elements of the crime of
rape. Gray asserts that a necessary element of the crime of rape is
that some penetration of the female's private parts by the sexual
organ of the assailant must occur. Lang v. State, 230 Miss. 147, 158,
87 So.2d 265, 268 (1956). The State must prove each element of the
crime beyond a reasonable doubt, and must ensure the jury has been
properly instructed with regard to the elements of the crime. Hunter,
684 So.2d at 635.
109. At trial Gray's attorney, Mr. Lee, objected to
Instruction S-6 being given. [BY THE COURT:] What do you say to S-6?
BY MR. LEE: I am going to object to that instruction. There is no
evidence showing that there was any forcible rape. BY THE COURT: It is
given. S-7?  
110. The State argues that any claim made by Gray
on appeal that the instruction did not properly instruct the jury
should be procedurally barred. An objection on one or more specific
grounds at trial constitutes a waiver of all other grounds for
objection on appeal. Lester, 692 So.2d at 773; Walker v. State, 671
So.2d 581, 605-06 (Miss.1995); See Conner v. State, 632 So.2d 1239,
1255 (Miss.1993). The procedural bar is applied. Gray objected to the
instruction being given because he thought the evidence was
insufficient to grant such an instruction. He never complained that
Instruction S-6 did not specifically enumerate the elements of the
crime of rape such the jury was improperly instructed. The Court will
not allow him to expand his objection at trial to encompass other
claims for the first time on appeal.   
111. Alternatively, his argument is without merit.
Gray did not offer an instruction for rape. However, Gray asserts that
even if he did not present an acceptable instruction, the State is
obligated to supply an acceptable instruction. Hunter, 684 So.2d at
635-36. The State contends that a trial judge is not required to
instruct the jury sua sponte or to give instructions in addition to
those tendered by the parties. Ballenger, 667 So.2d at 1252. We agree.
The instruction given must correctly instruct the jury as to each
element of the offense charged. Hunter, 684 So.2d at 636. “Failure to
submit to the jury the essential elements of the crime is
‘fundamental’ error.” Id. (quoting Screws v. United States, 325 U.S.
91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). 
112. Gray claims “sexual intercourse” was
insufficient to inform the jury that rape meant penetration of a
female's vagina by a male's penis. Sexual intercourse is defined as
“genital contact or coupling between individuals, especially one
involving penetration of the penis into the vagina.” Random House
Webster's College Dictionary (4th Ed.1996) (emphasis added). 
113. The instruction did not have to mention sexual
intercourse to have been sufficient. The instruction tracked the
statutory language that reads any person is guilty of rape who “shall
forcibly ravish any person of the age of fourteen (14) years or upward....”
Miss.Code Ann. § 97-3-65(2) (1994). The instruction specifically
instructed the jury that rape occurred when any person “shall forcibly
ravish any female ... by having sexual intercourse with said female
against her will by the use of force or by threat of personal injury.”
The State contends this went beyond informing the jury of the
essential elements of rape. The Court agrees. The jury was instructed
as to each element of the crime as prescribed by the language in the
114. Gray correctly notes that the instruction
given to the jury did not explicitly require the element of
penetration. This is of no consequence. This Court has long held that
such an instruction, as given in the case sub judice, sufficiently
sets out the elements of rape. See Rogers v. State, 204 Miss. 891,
895, 36 So.2d 155, 156 (1948)(instructing jury to find defendant
guilty if he “violently, forcibly and feloniously and against her will,
ravished and carnally knew her”). This Court has held “[r]avish means
rape.” Allman v. State, 571 So.2d 244, 248 (Miss.1990).  
115. The State submits that Instruction S-6
informed the jury of the necessity of penetration and the use of force.
The instruction must be considered as a whole, and the words contained
therein given their customary, ordinary and usual meaning. Council v.
Duprel, 250 Miss. 269, 303, 165 So.2d 134, 149 (1964). The terms
“rape”, “forcibly ravish” and “sexual intercourse against her will”
adequately entail in the mind of the ordinary juror the concept of
physical penetration of the victim's vagina by the defendant's penis.
Where the instruction tracks the statutory language prescribing the
elements of the crime, the Court finds it is permissible as adequately
instructing the jury as to the elements of the crime. 
116. Gray's main argument is that the State did not
prove he committed the crime of rape beyond a reasonable doubt. He
asserts the evidence presented at trial was not sufficient to prove
penetration. Thus, Gray claims Instruction S-6 should not have been
given. This claim is without merit.
117. Because the victim was deceased, the State had
to prove beyond a reasonable doubt by mostly circumstantial evidence
that Mrs. Blackwell was raped. Gray argued to this Court that Lang
required proof of penetration of the female's private parts by the
male's penis as a necessary element of rape. Lang, 230 Miss. at 158,
87 So.2d at 268. However, Gray failed to read further in the Lang
opinion. This Court held penetration may be established by
circumstantial evidence. Id.
118. Mrs. Smrz testified that semen stains were
found in the panties of Mrs. Blackwell. She stated the source of the
stains was Rodney Gray. Semen was found on the vaginal swabs taken
from Mrs. Blackwell, but no DNA profile could be extracted. Mr. Wilson
testified that the pubic hair found in the crotch area of Mrs.
Blackwell's panties contained the same microscopic characteristics as
Gray's pubic hair.
119. Dr. Hayne testified there was an abrasion or
scrape measuring approximately one inch on Mrs. Blackwell's labia
majora, which is the fold of the skin located external to the vaginal
vault. He testified that force would be necessary to cause such an
injury. Gray asked Russell Saunders “if they could tell if you had sex
with a woman by taking your blood.” Gray then told Saunders that he
had sex with the woman he allegedly had killed. Lastly, Gray told
Cleveland McCall that he raped Mrs. Blackwell.
120. The trial judge correctly instructed the jury
to decide whether this murder was committed during the commission of a
rape. This Court's standard for reviewing the legal sufficiency of the
evidence is as follows: When on appeal one convicted of a criminal
offense challenges the legal sufficiency of the evidence, our
authority to interfere with the jury's verdict is quite limited. We
proceed by considering all of the evidence-not just that supporting
the case for the prosecution-in the light most consistent with the
verdict. We give [the] prosecution the benefit of all favorable
inferences that may reasonably be drawn from the evidence. If the
facts and inferences so considered point in favor of the accused with
sufficient force that reasonable men could not have found beyond a
reasonable doubt that he was guilty, reversal and discharge is
required. On the other hand, if there is in the record substantial
evidence of such quality and weight that, having in mind the beyond a
reasonable doubt burden of proof standard, reasonable and fair minded
jurors in the exercise of impartial judgment might have reached
different conclusions, the verdict of guilty is thus placed beyond our
authority to disturb. See, e.g., Gavin v. State, 473 So.2d 952, 956
(Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984). Roberson v.
State, 595 So.2d 1310, 1318 (Miss.1992)(quoting McFee v. State, 511
So.2d 130, 133-34(Miss.1987)). 
121. In short, the evidence is to be viewed in the
light most consistent with the jury's verdict. Carr v. State, 655
So.2d 824, 837 (Miss.1995). This Court has held the same standard to
apply to capital murder cases. See Mackbee v. State, 575 So.2d 16, 36
122. The record before the Court supports a
procedural bar to Gray's assertion of this issue. He objected to the
sufficiency of the evidence to support Instruction S-6 at trial. He
did not allege the instruction failed to properly instruct the jury as
to the specific elements of the crime of rape. Alternatively, Gray's
argument is without merit. After thoroughly reviewing the record
before this Court, we hold there was more than sufficient evidence
presented at Gray's trial to support the lower court giving
Instruction S-6 to the jury. Furthermore, the instruction was legally
sufficient to inform and instruct the jury as to each element of the
crime of rape which elevated this murder to a capital offense. Gray's
argument is procedurally barred and without merit.
IX. WHETHER THE JURY VERDICT EVIDENCED BIAS AND
PASSION BECAUSE OF THE TIME OF DELIBERATIONS.
123. Gray asserts that because the jury deliberated
ten minutes on guilt and one hour on sentencing his case should be
reversed. On January 24, 1996, the jury retired at 3:11 p.m. to begin
deliberations to determine whether Rodney Gray was guilty of the crime
charged. At 3:21 p.m. the jury announced ready to report its verdict
of guilty. On January 25, 1996, at 12:07 p.m the jury was retired to
the jury room to deliberate an appropriate sentence for Rodney Gray.
That same day the jury announced it had reached a verdict at 1:09 p.m.
124. Gray claims that the jury did not review the
exhibits, nor study the instructions. He states the members of the
jury only had time to “walk around the table.” With no other tangible
evidence before this Court in the record, Gray argues that the length
of time the jury took for deliberations is evidence of the bias and
passion of the jury.
125. “This Court has held that there is no formula
to determine how long a jury should deliberate.” Smith v. State, 569
So.2d 1203, 1205 (Miss.1990) (citing Johnson v. State, 252 So.2d 221
(Miss.1971)). The Court in Johnson said the following: Because the
jury's time of considering their verdict did not exceed seven minutes,
it does not follow that the jurors did not carefully consider the
testimony and the exhibits. It is not only possible but probable that
when the state and the defendant had rested and the summations had
been made each juror had decided in his mind the issue of innocence or
guilt. After the brief deliberation with each other, the jurors found
that they were of a single mind as to the guilt or innocence of the
appellant and found him to be guilty. Under the facts of this case
this Court is unwilling to lend its authority to the establishment of
any formula or guideline relating to the time a jury must deliberate
before delivering its verdict. This Court is cognizant of the fact
that in the past in occasional cases, as in the case at bar, rather
brief deliberations have taken place in the jury room and verdicts
have been returned with unusual rapidity. There is no yardstick of
time which a jury should use before reaching a verdict. No two cases
are similar as to facts and therefore the law varies in its
application thereto. Therefore, we cannot hold that in the time
utilized by the jury it could not reach a proper verdict of guilty.
Smith, 569 So.2d at 1205 (quoting Johnson, 252 So.2d at 224).
126. Gray argues that in deciding whether a man is
guilty of capital murder the jury should be given some guidelines,
such as being required to read jury instructions and examine the
evidence. He contends the Court should separate capital cases from
non-capital cases and provide guidelines in cases where a defendant's
life is at stake. 
127. Gray offers no evidence to suggest the jury
did not consider the testimony and exhibits as they were presented.
The jury was read the instructions prior to closing arguments by the
trial judge. “It is presumed that jurors follow the instructions of
the court. To presume otherwise would be to render the jury system
inoperable.” Chase, 645 So.2d at 853 (quoting Johnson v. State, 475
So.2d 1136, 1142 (Miss.1985)).
128. The Court notes that this case was not overly
complex, given that it was a capital murder case. The record before
the Court provided the jury with ample evidence with which to consider
Gray's guilt or innocence and subsequent sentence. There is nothing in
the record to suggest the jury considered anything other than the
evidence presented. Likewise, the record does not indicate a need for
129. Gray's assertion that the length of jury
deliberations evidenced bias and passion on the part of the jury is
specious and without merit. He bases his argument solely on the length
of the deliberations. It is illogical to think that a brief
deliberation period is necessarily prejudicial to the defendant. A
brief deliberation could just as easily indicate an acquittal. The
Court holds that any time restrictions or guidelines regarding jury
deliberations would usurp the jury system.
130. After reviewing the record, the Court holds
that the verdict and sentence returned in the case before the Court
were not based on bias or passion, but rather the overwhelming weight
of the evidence. Gray's argument is without merit.
X. WHETHER THE COURT ERRED BY FAILING TO GRANT
DEFENDANT'S MOTION FOR CHANGE OF VENUE.
131. Gray's tenth assignment of error contends the
trial judge abused his discretion in refusing to grant a change in
venue in this trial. Gray filed his motion for change of venue,
accompanied by two affidavits as required by Miss.Code Ann. § 99-15-35
(1994), from Donna Cumberland and Marie Evans. Although the affidavits
tracked the language of Miss.Code Ann. § 99-15-35, neither identified
the affiant as a resident of Newton County.
132. The trial court held a hearing on the matter.
The defense did not present any witnesses at the hearing. The State
presented six witnesses to prove Gray could receive a fair trial in
Newton County. The witnesses were from various parts of Newton County,
and all testified that they thought Gray could receive a fair trial.
Charles Vance, fire chief of Newton, testified that he came into
contact with approximately 150-200 primarily Newton County residents a
week. He stated that the incident was not commonplace and some would
talk. But, Vance testified he had heard no public ill will against
Gray and thought “he could receive as fair a trial [in Newton County]
as anywhere else.”
133. Kate Thomas lived in the northwest portion of
Newton County and was campaigning for justice court judge at the time
she testified. She stated that she also came into contact with several
hundred Newton County residents a week. Gray claims Thomas was biased
in light of her affirmative answer to the question, “As a candidate
for a Justice Court Judge, it would not be beneficial to you to make a
statement that any individual couldn't get a fair trial in Newton
County; is that not correct?” She testified that no one had indicated
to her that they had prejudged the case or formed an opinion as to the
guilt or innocence of Rodney Gray. Thomas did not know who Rodney Gray
was prior to receiving her subpoena to testify at the venue hearing.
Thomas was of the opinion Gray could receive a fair trial in Newton
134. Ernie White testified that he lived in the
town of Little Rock in Newton County, where he did auto body repair
work. The defense attempted to show White had an interest in the case
being tried in Newton County because Mrs. Blackwell's car was stored
at his body shop. White testified that he saw between 100-125
primarily Newton County residents a week. He stated that no one he had
spoken to had expressed an interest in the case. In White's opinion
Gray could receive a fair trial in Newton County.
135. J.D. Davis, a resident of Chunky in Newton
County, testified he came into contact with approximately 100
primarily Newton County residents a week. He stated that he had heard
no one express ill will or indicate they had prejudged the case. He
testified that he had not talked to anyone who knew either Gray or Mrs.
Blackwell. He also stated that in his opinion Gray could get a fair
trial in Newton County. On cross-examination Davis was asked whether
the fact that a young black male had been charged with a serious
offense against an elderly white would cause public ill will towards
the defendant. Davis replied that he did not know, but that it could.
136. Wayne Griffith was the mayor of Hickory in
Newton County. He stated that on average he would come into contact
with approximately 500 primarily Newton County residents every week.
Griffith on cross-examination stated he had read about the case in the
paper once or twice. He was also aware that Gray had recently escaped
from jail. However, Griffith had not heard anyone express an opinion
about the Gray case. Griffith was not aware of any general feeling of
ill will or prejudice against Gray and believed that Gray could get a
fair trial in Newton County.
137. James Williamson owned a grocery store and
lived at Duffie, which is in the eastern part of Newton County. He
stated that he came into contact with about 1000 people a week. He did
not know of anyone who had expressed an interest, prejudged, or formed
an opinion about Rodney Gray. He testified that he believed Gray could
receive a fair trial in Newton County. Williamson stated that persons
came into his store a day or two after the murder and commented that
she had been killed and run over with a car after being shot. He
stated that he did not hear anything about it after that. Williams
also stated that he did not believe the facts of the case would
inflame the minds of potential jurors.
138. Gray alleges that it is apparent from the
record that there was extensive news coverage of the crime in Newton
County during August of 1994, March and April of 1995, and August of
1995. Gray submitted news articles from The Newton Record and The
Union Appeal as exhibits to his motion for change of venue.
139. Vance testified there were three separate
articles he could recall from The Newton Record. Thomas stated she had
read one article in The Union Appeal. White stated that he
occasionally read The Union Appeal but did not recall seeing any
articles regarding the case. Through White, the defense entered the
exhibits attached to the motion for change of venue into evidence.
White maintained that “everybody don't [sic] read the Union Appeal and
the Newton Record.” Davis was asked if the two newspapers were widely
read throughout Newton County. He answered that as far as he knew they
were, but that he did not know. To all of the defense's questions on
cross-examination regarding the influence of the newspaper articles,
Davis replied that he did not know and would only speculatively agree
with the defense. Griffith stated the papers were circulated
throughout the county, but he had only read about the case once or
twice. On cross-examination Griffith was asked if the articles would
put the case before the public. He responded that it possibly would.
Although Williamson did not read the paper, he agreed with the defense
that the case has pretty much stayed before the public. Williamson
maintained that he had heard no one speak of opinions they might have
regarding the case.
140. After the hearing the trial judge dictated a
lengthy opinion into the record denying the motion. The judge noted
the affidavits were deficient in that the affiants were not alleged to
be residents of Newton County. The judge also noted the affiants did
not allege to have personal knowledge of the facts of the case, but
only alluded to the motion. The judge commented on each of the
witnesses for the State and their testimonies. The judge went on to
hold: Although not alleged within the motion for change of venue, the
Defendant was permitted to develop testimony through the testimony of
these witnesses, that this was a crime by a Black person upon a White
female, and because of such, there could be no fair trial. That
question and that argument in itself presumes and excludes Blacks from
serving on juries. The inference is only to White jurors. Yet, each
and every witness who was asked the question by Mr. Thames, stated
that they felt like race would not be an issue and that the Defendant
could receive a fair trial. It was testified to that there was several
articles within the Union Appeal and the Newton Record, which are the
two local publications having general circulation within Newton County.
This alleged crime occurred August the 15th, 1994, some fifteen months
prior to the date hereof. I do not consider the matter as being so
saturated with publicity as was the case in the case of State of
Mississippi vs. Fisher and also in the case of State of Mississippi
vs. Johnson, two Lauderdale County cases that are the beacon cases in
Mississippi regarding pre-trial publicity, and I do not feel that the
publicity in this case falls within the terminology of the Supreme
Court in those two cases. The Court being of the opinion that the
State has met the burden of proof, that there is nothing developed in
the record of this case would indicated the Defendant could not
receive a fair trial, but to the contrary he could. Therefore, the
obvious conclusion would be that the motion should be, and it is
overruled. That is the order of the Court. 
141. A motion for a change of venue is not
automatically granted in a capital case. There must be a satisfactory
showing that a defendant cannot receive a fair and impartial trial in
the county where the offense is charged. Miss.Code Ann. § 99-15-35
(1994). The lower court did not find that the evidence presented by
the defense made a satisfactory showing when considered with the
witnesses presented by the State.  
142. “A presumption of inability to conduct a fair
trial in a venue arises with an application for change of venue,
supported by two affidavits affirming the defendant's inability to
receive a fair trial.” Holland v. State, 705 So.2d 307, 336
(Miss.1997)(citing Porter v. State, 616 So.2d 899, 905 (Miss.1993)).
The presumption of the Defendant's inability to receive a fair trial
can be rebutted by the State by presenting evidence “at the venue
hearing coupled with the trial judge's reasoned ... sense of the
community and, particularly in a case such as this [capital murder],
an awareness of the uncontrovertible impact of saturation media
publicity upon the attitudes of a community.” Fisher v. State, 481
So.2d 203, 215 (Miss.1985). 
143. “It is well-established in our jurisprudence
that ‘the granting of a change of venue’ is a matter so largely in
discretion [sic] of the trial court that a judgment of conviction will
not be reversed on appeal on the ground that a change of venue was
refused, unless it clearly appears that trial [sic] court abused its
discretion.” Simon v. State, 688 So.2d 791, 804 (Miss.1997) (quoting
Billiot v. State, 454 So.2d 445, 454 (Miss.1984)). The discretion
deferred to by this Court is the trial court's sound discretion, not
its unfettered discretion. Fisher, 481 So.2d at 215. The lower court
did not abuse its discretion by denying Gray's motion for change of
144. Gray did not present any witnesses at the
venue hearing. He relied on the affidavits to create the presumption
that he could not receive a fair trial. The affidavits must be by
credible witnesses with knowledge of the facts of the case. Johnson v.
State, 476 So.2d 1195, 1210 (Miss.1985). The trial judge was correct
in finding the affidavits deficient when he noted in his findings that
they did not allege the affiants had personal knowledge of the facts
as set forth in the motion. The affidavits only alluded to the motion,
but not the actual facts. Further, the affiants were not shown to be
residents of Newton County.
145. The State presented six witnesses and the
trial judge had the opportunity to hear their testimony, both direct
and under cross-examination. He found the State had rebutted any
presumption that had been created by the defense's affidavits alleging
prejudice on the part of potential jurors. The judge did not find
persuasive Gray's claims that he could not receive a fair trial. The
State's witnesses rebutted these claims and showed the community had
not prejudged or formed an opinion as to Gray's guilt or innocence.
146. The State correctly asserts there is bound to
be media coverage of every capital murder case. However, this Court
has stated that when the news media have heavily reported a case, the
lower courts should be prepared to change venue. Johnson, 476 So.2d at
1215. However, the lower court judge noted that this case was not
saturated with publicity as was the case in Fisher and Johnson. There
is little mention of television coverage in the record. The main
coverage was in The Newton Record and The Union Appeal, both local
weekly newspapers in Newton County. There were eleven newspaper
articles from August of 1994 to January of 1996. Neither the victim
nor the defendant were residents of Newton County. The testimony of
the State's witnesses at the venue hearing indicated that neither the
victim nor the defendant were well known in Newton County.
147. The Court finds that Gray has not created an
irrebuttable presumption of prejudice. Although this was a capital
murder case and the Defendant was a black man accused of killing a
white woman, there was no intensely prejudicial pretrial publicity so
as to create a presumption of prejudice among potential jurors as was
the case in Fisher and Johnson. Morgan v. State, 681 So.2d 82, 92
148. The presumption of the Defendant's inability
to receive a fair trial can also be rebutted if the State can prove
from voir dire that the trial court impaneled a fair and impartial
jury. Harris v. State, 537 So.2d 1325, 1329 (Miss.1989). “The linchpin
is whether the venire members stated that they could be fair and
impartial jurors if chosen.” Simon, 688 So.2d at 804.
149. After initial instructions, qualifications,
and voir dire by the court, the State conducted its voir dire of the
jury venire. The defense then conducted its voir dire of the jury
venire. At the conclusion of “for cause” challenges to the jury venire,
Mr. Lee, one of Gray's attorneys, made a motion to quash the jury
panel for two reasons.
150. The first was an insufficient number of black
members of the panel in relation to the percentage of blacks in Newton
County. The trial judge overruled the motion as to the first reason
stating black and white jurors were excused for reasons given to and
accepted by the court. The judge noted that at the time the black
jurors were excused for cause shown the defense did not make an
151. The second reason Mr. Lee wanted to quash the
jury panel was because the summons that went out to the potential
jurors had printed on it the charge of capital murder in bold print.
Mr. Lee argued that the jurors should have come into court only
knowing there was a criminal case to be tried. He claimed the fact
that “capital murder” was printed on the summons had prejudiced the
jurors. The judge asked for testimony in support of this argument,
which Mr. Lee could not provide. The lower court ruled the motion to
be speculative and would require the court to speculate without a
showing of some proof. Therefore, the lower court overruled the motion
to quash the jury panel.
152. Gray did not offer any objection to the jury
based on the prejudicial effect of any pretrial publicity. The jury
venire was expressly asked by the court if they could try the case
fairly and impartially. The trial judge asked if any of the members of
the venire had read anything about the case in the papers or heard by
word of mouth. One who said he had already made up his mind was
excused. The other two who indicated they had heard about the case in
the news stated they could make a decision based on the evidence and
the law. The State asked the venire if they had prejudged the case as
to guilt or innocence and received no response. The State then asked
if they could judge the case with a clean slate regardless of what
they might have read in the paper and give the defendant a fair trial.
Mr. Thames, one of Gray's attorneys, asked on voir dire if the venire
had any bias against Gray and stated that the silence indicated there
was none. Mr. Thames asked if any member of the venire felt “pro or
against” Gray because the summons had listed as the charge “capital
murder.” Mr. Thames stated that he understood from the venire's
silence there were no feelings either way. Mr. Thames asked the venire
if the fact that the case involved the charge of rape had inflamed any
of the members against Gray. There was no response in the record. 
153. Where the record indicates the impaneled jury
members affirmatively stated that they could fairly and impartially
serve as jurors the State has rebutted the presumption of prejudice.
Simon, 688 So.2d at 804. The record before the Court clearly indicates
the panel members were asked repeatedly by the trial judge, the
State's attorneys, and Gray's attorneys if they could be fair and
impartial. There is nothing in the record to indicate that the jurors
were not fair and impartial. Any presumption of prejudice was rebutted
by the empaneling of the impartial jury in Gray's case. Berry v. State,
575 So.2d 1, 8 (Miss.1990).
154. The granting of a change of venue is within
the sound discretion of the trial judge. The trial judge did not abuse
his discretion by denying Gray's motion for a change of venue. The
affidavits filed by Gray with his motion for change of venue were
insufficient to create a presumption that he could not receive a fair
trial in Newton County. If the presumption was created it was not of a
type deemed irrebuttable according to the factors enumerated by the
Court in White v. State, 495 So.2d 1346, 1349 (Miss.1986). The fact
that Gray is black and was charged with capital murder of Mrs.
Blackwell, who was white, is not enough to create an irrebuttable
presumption that Gray could not receive a fair trial. The State
sufficiently rebutted any presumption against a fair trial at the
venue hearing and the subsequent voir dire. This assignment of error
is without merit.
XI. WHETHER THE COURT ERRED BY ALLOWING AN IN-COURT
IDENTIFICATION OF THE DEFENDANT BY A WITNESS.
155. Gray contends the in-court identification of
him by witness Harry Jones was tainted by an allegedly suggestive pre-trial
identification of Gray. Gray timely objected at trial arguing the
procedures used by the police tainted Jones' identification at the
jail and his subsequent in-court identification. A suppression hearing
was had outside the presence of the jury.
156. Jones identified Gray as one of two persons he
saw on the day Mrs. Blackwell was murdered wrestling in a car stopped
on Turkey Creek Road in Newton County. He stated that one was a young
black man but did not know whether the other person was black or white,
male or female. Jones did state that the driver looked straight at him
right before he “took off.” Jones testified that he had seen the car
on the news the day following the murder and remembered it was the
same car he had seen on the morning of the murder. He went to the
Sheriff's office and explained what he had seen.
157. Jones stated he was shown five or six pictures,
and he knew two or three of them. Jones was then shown an individual
through a peephole in the jail and immediately identified Gray as the
person he saw driving Mrs. Blackwell's car. The trial judge then made
his ruling allowing Jones to testify. BY THE COURT: I fail to see how
it can be argued that an impermissible lineup distorted this witness's
identification, because according to his testimony, he saw photographs
of those, and he knew most of those persons that he saw, then
immediately he was shown the Defendant through a peephole, and he made
identification. His identification in the Courtroom here is a positive
identification. He testified that it was not assisted by the showing
of the photographs or viewing the Defendant through a peephole, but it
was based entirely upon his viewing the Defendant at the scene. The
witness stated it was some twenty to thirty feet the Defendant was
away from him, and that he looked directly at him. So your motion to
suppress is denied.
158. Gray contends on appeal that the procedure by
which Jones identified him at the jail was suggestive and flawed,
because Jones knew the persons in some of the pictures. Gray asserts
that Jones viewing him immediately after the photographic viewing made
identification of Gray very likely. Gray also claims that Jones was
receptive to suggestion that the persons he had seen in the car were
the victim and Gray, because Gray was a young black man and Mrs.
Blackwell was an elderly white female. 
159. This Court's review of suppression hearings on
appeal is well settled: The standard of review for suppression hearing
findings in a matter of pretrial identification cases is whether or
not substantial credible evidence supports the trial court's findings
that, considering the totality of the circumstances, in-court
identification testimony was not impermissibly tainted. Magee v. State,
542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71
(Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986). The
appellate review should disturb the findings of the lower court “only
where there is an absence of substantial credible evidence supporting
it.” [Emphasis added]. Ray v. State, 503 So.2d at 224. Ellis v. State,
667 So.2d 599, 605 (Miss.1995) (emphasis in original). 
160. The State submits there was substantial
credible evidence to support the lower court findings. Even if the
pretrial identification of Gray was impermissibly suggestive, the in-court
identification does not necessarily have to be excluded. Reliability
has been deemed the linchpin in determining the admissibility of the
identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114, 97
S.Ct. 2243, 53 L.Ed.2d 140 (1977); Nathan v. State, 552 So.2d 99, 104
(Miss.1989). The lower court must determine from the totality of the
circumstances if the identification was reliable even though the
confrontation procedure may have been suggestive. York v. State, 413
So.2d 1372, 1377-78 (Miss.1982).
161. In determining whether this standard has been
met there are certain factors that must be considered. 1. Opportunity
of the witness to view the accused at the time of the crime; 2. The
degree of attention exhibited by the witness; 3. The accuracy of the
witness' prior description of the criminal; 4. The level of certainty
exhibited by the witness at the confrontation; 5. The length of time
between the crime and the confrontation. Neil v. Biggers, 409 U.S.
188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); York, 413 So.2d at
162. Applying the factors set forth in Neil to the
present case the following is clear: 1. Opportunity to view the
accused- Jones testified that the car was stopped when he first
approached it, but the driver took off. He stated that the driver
looked straight at him before driving away. Jones stated that he got a
good look at the man, because he was about twenty feet away from Gray
when he saw him. 2. Degree of attention- Jones stated the persons in
the car attracted his attention because they appeared to be wrestling.
Jones said he figured it was a boyfriend and girlfriend fighting. 3.
Accuracy of prior description- Jones described the driver of the car
as a young, black man. He stated that he saw the individuals in the
car around noon time. 4. Witness' level of certainty at confrontation-
Jones immediately identified the person shown to him through the
peephole as the person who he had seen driving Mrs. Blackwell's car.
That individual was Rodney Gray. Jones stated that he based his in-court
identification of Gray based on what he saw “out on the road” on the
day Mrs. Blackwell was murdered, not what he saw at the jail. 5.
Length of time between the crime and the confrontation- Jones stated
that he recognized the car when he saw it on the news the day after
Mrs. Blackwell was murdered. He contacted the law enforcement
officials to report what he had seen. He identified Gray the same day,
which was the day after he had seen him driving Mrs. Blackwell's car.
163. Gray alleges his case is analogous to Foster
v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
There the Supreme Court held an in-court identification inadmissible
because of the unreasonable suggestiveness of the pre-trial lineup. In
Foster the witness was shown a lineup of three suspects. Foster was
set apart from the other two because he was taller and wore a leather
jacket similar to the one worn by the person who had robbed the store
where the witness worked. The witness was not sure after the first
line-up and asked the police to permit a one-to-one confrontation with
Foster. The witness still could not give a positive identification. A
week to ten days later the police arranged a second line-up. Foster
was the only person in the second line-up who had been in the original
line-up. After the second line-up, the witness positively identified
Foster as the robber. The Supreme Court held this to be clearly
suggestive and to undermine the reliability of the witness
identification process. Foster, 394 U.S. at 443, 89 S.Ct. 1127.
164. The case presently before the Court is clearly
distinguishable. Jones made a positive identification immediately upon
being shown Gray through the peephole. Even if the show-up
identification was impermissibly suggestive, the reliability of the
in-court identification is evident from the record. Jones'
identification met the factors set forth in Neil. Jones testified that
he identified Gray based on what he saw on the day Mrs. Blackwell was
murdered rather than what he saw at the jail.
165. The Court holds that the findings of the trial
judge at the suppression hearing was supported by substantial credible
evidence in the record. Therefore, Gray's assignment of error is
XII. WHETHER THE COURT ERRED BY FAILING TO DISMISS
THE INDICTMENT BECAUSE THE UNDERLYING FELONIES WERE LISTED IN THE
166. Gray alleges the indictment charging him with
capital murder was substantively defective because the two underlying
felonies were listed in the disjunctive and therefore failed to state
the essential facts of the offense charged. The indictment reads as
follows: That Rodney Gray late of the County aforesaid, on or about
the 15th day of August in the year of our Lord, 1994, in the County
and State aforesaid, and within the jurisdiction of this Court, did
willfully, unlawfully, feloniously and of his malice aforethought kill
and murder Grace Blackwell, a human being, while engaged in the
commission of the crime of kidnapping and/or rape, contrary to and in
violation of Section 97-3-19-(2)(e), Miss.Code Ann. (1972), as amended,
against the peace and dignity of the State of Mississippi. 
167. “It is a well-established principle of law
that in order for an indictment to be sufficient, it must contain the
essential elements of the crime charged.” Peterson v. State, 671 So.2d
647, 652-53 (Miss.1996). Gray alleges that the definiteness
requirement of an indictment, found in URCCC 7.06, prohibits
alternative charges or a charge that an offense was committed in one
way or another. To support his position, he cites unto the Court the
following cases: State v. Sam, 154 Miss. 14, 122 So. 101 (1929); Black
v. State, 199 Miss. 147, 24 So.2d 117 (1945); West v. State, 169 Miss.
302, 152 So. 888 (1934); Powell v. State, 196 Miss. 331, 17 So.2d 524
(1944). Simply put, Gray alleges that the term “and/or” in this
indictment means “while engaged in the crime of kidnapping or rape or
168. After a thorough review and search of the
record, the Court can find no motion to demur or quash the indictment
on this ground or any objection to the indictment's form. Gray did
object to the indictment on other grounds. Gray filed a motion to
quash the indictment on account of discrimination in the selection of
grand jury foreperson. The lower court denied this motion. Gray filed
a motion to quash the indictment against him for lack of a speedy
trial and appointment of counsel. The lower court overruled this
motion to quash the indictment. Gray did not allege a defect in the
indictment in his motion for a new trial.  
169. The State argues that this issue is
procedurally barred from being raised for the first time on appeal. “A
trial judge will not be found in error on a matter not presented to
him for decision.” Jones v. State, 606 So.2d 1051, 1058 (Miss.1992) (citing
Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988)). Gray did not
object at trial and allege the term “and/or” caused a defect in the
indictment. Eliminating the word “or” would have cured the alleged
error and would have been clearly an amendment of form not substance.
Defects on the face of an indictment must be presented by way of
demurrer. Brandau v. State, 662 So.2d 1051, 1054 (Miss.1995);
Miss.Code Ann. § 99-7-21 (1994). When “the formal defect is curable by
amendment ... the failure to demur to the indictment in accordance
with our statute” will waive the issue from consideration on appeal.
Brandau, 662 So.2d at 1055.
170. Gray filed several motions to quash the
indictment for various reasons. None of the motions to quash mentioned
a defect in the indictment as to the language in the charge against
Gray. The alleged defect was not presented to the lower court for a
ruling. This issue is procedurally barred because Gray attempts to
raise it for the first time on appeal. 
171. Alternatively, the issue is without merit.
This Court has made it “clear that the ultimate test, when considering
the validity of an indictment on appeal, is whether the defendant was
prejudiced in the preparation of his defense.” Medina v. State, 688
So.2d 727, 730 (Miss.1996). Gray has failed to demonstrate such
prejudice to this Court.
172. The indictment must be a plain, concise and
definite written statement of the essential facts constituting the
offense charged and shall fully notify the defendant of the nature and
cause of the accusation against him. Peterson v. State, 671 So.2d 647,
653-54 (Miss.1996); URCCC 7.06. The indictment is held to be
sufficient if it contains the seven factors enumerated in URCCC 7.06.
1. The name of the accused; 2. The date on which the indictment was
filed in court; 3. A statement that the prosecution is brought in the
name and by the authority of the State of Mississippi; 4. The county
and judicial district in which the indictment is brought; 5. The date
and, if applicable, the time at which the offense was alleged to have
been committed. Failure to state the correct date shall not render the
indictment insufficient; 6. The signature of the foreman of the grand
jury issuing it; and 7. The words “against the peace and dignity of
the state.” Id. The indictment in the case presently before the Court
met these requirements.
173. The indictment contained a charge of capital
murder defined in Miss.Code Ann. § 97-3-19(2)(e). Therefore, the
indictment was in compliance with Miss.Code Ann. § 99-17-20, and it is
not necessary to specifically set forth the elements of the underlying
felony used to elevate the crime to capital murder. Mackbee, 575 So.2d
at 34-35; See Bullock v. State, 391 So.2d 601, 606 (Miss.1980); Bell
v. State, 360 So.2d 1206, 1208-09 (Miss.1978). Gray was sufficiently
informed of the underlying felonies and the essential facts
constituting the offense of capital murder. 
174. Most recently the Court has spoken to this
issue in State of Mississippi v. Berryhill, 703 So.2d 250 (Miss.1997).
There the defendant was charged with capital murder while engaged in
the commission of a burglary. The Court held “that capital murder
indictments that are predicated on burglary are required to state the
underlying offense to the burglary.” Id. at 255. This holding was
limited to those capital murder indictments predicated on burglary.
The Court stated: Simply put, the level of notice that would
reasonably enable a defendant to defend himself against a capital
murder charge that is predicated upon burglary must, to be fair,
include notice of the crime comprising the burglary. Burglary is
unlike robbery and all other capital murder predicate felonies in that
it requires as an essential element the intent to commit another crime.
Id. at 256 (emphasis added). Our holding in Mackbee and Peterson still
controls as to all other capital murder predicate felonies. A capital
murder indictment based on an underlying felony, other than burglary,
does not have to specifically set forth the elements of the underlying
felony used to elevate the crime to capital murder. Berryhill, 703
So.2d at 256; Peterson, 671 So.2d at 653-54; Mackbee, 575 So.2d at
175. Gray's argument dealing with the term “and/or”
has been dealt with before by the Court in Lockett v. State, 517 So.2d
1317, 1336 (Miss.1987). At the sentencing phase of Lockett's trial, an
aggravating circumstance was submitted to the jury that stated,
“Whether the capital offense was committed while the defendant was
engaged in burglary, robbery and/or kidnapping, or in an attempt to
commit one or more of such crimes.” Id. The Court held “[s]ince the
evidence at trial was sufficient to support both the underlying
felonies of burglary and robbery, it seems that the addition of the
crime of kidnapping in the sentencing instruction was surplusage.” Id.
176. The State contends that the evidence presented
against Gray was sufficient to prove both underlying felonies beyond a
reasonable doubt. We agree. The State submits that the prosecution
took on the burden of proving both underlying felonies. The State also
asserts that presumably both underlying felonies were charged just in
case the proof in one or the other was insufficient at trial,
therefore allowing them to amend the indictment to conform to the
proof. The State argues this was unnecessary because there was
sufficient evidence at trial of both the kidnapping and the rape
charges, as evidenced by the jury unanimously finding both as
177. Gray's claims as to this issue are
procedurally barred because he attempts to argue a facial defect in
the indictment for the first time on appeal. His attempts to do so are
contrary to Miss.Code Ann. § 99-7-21 (1994) and the prior holdings of
this Court. Alternatively, his claims are without merit. The
indictment complied with the requirements of URCCC 7.06 and adequately
informed Gray of the underlying felonies used to charge him with
capital murder. The evidence presented at trial was sufficient to
prove both kidnapping and rape beyond a reasonable doubt. Therefore,
this issue is without merit.
XIII. WHETHER THE COURT ERRED BY ALLOWING THE JAIL-HOUSE
CONFESSIONS OF THE DEFENDANT TO HIS FORMER CELL-MATES INTO EVIDENCE.
178. Gray asserts that the testimony of his two
former cell-mates, Russell Saunders and Cleveland McCall, should not
have been admitted. Both testified that Gray had admitted to them that
he was guilty of the crime for which he had been charged. Gray alleges
that Saunders, a second time offender, was made a trusty shortly after
he told Sheriff Cross what he had heard Gray say. Gray claims that
McCall was biased against Gray, as well. He states this bias was shown
in McCall's testimony when he asked about making bond. In his response
to the question, McCall stated Gray had a hacksaw blade.
179. Gray then argues that the unreliability of
cell-mate testimony of confessions is stuff of legend. Its use has
historically produced injustice, and its intrinsic unfairness is a
violation of the due process clause of the Fourteenth Amendment to the
United States Constitution. 
180. Gray cites to this Court no authority to
support his assertions. He alleges the unreliability of cell-mate
testimony is “stuff of legend” and has historically produced injustice,
but offers not one case to support his argument. It is the duty of the
appellant to provide this Court with authority to support his
arguments on appeal. Hoops, 681 So.2d at 526. “This Court has
repeatedly held that failure to cite any authority may be treated as a
procedural bar, and it is under no obligation to consider the
assignment.” Weaver v. State, 713 So.2d 860, 863 (Miss.1997) (citing
McClain v. State, 625 So.2d 774, 781 (Miss.1993)). Secondly, the issue
is procedurally barred because Gray did not object at trial to the
testimony of either Saunders or McCall. “(Counsel may not sit idly by
making no protest as objectionable evidence is admitted, and then
raise the issue for the first time on appeal.)” Davis, 684 So.2d at
658(quoting Cole v. State, 525 So.2d 365, 369 (Miss.1987)). This issue
clearly invokes the procedural bar. 
181. Alternatively, this claim is without merit.
Gray claims the two inmates stood to gain something in exchange for
their testimony. This Court has not viewed such testimony favorably.
See McNeal v. State, 551 So.2d 151, 158 (Miss.1989). The evidence in
the record before the Court does not establish the inmates received
anything in exchange for their statements. True, Saunders was made a
trusty sometime after he told the sheriff what Gray had said, but his
testimony indicated that he had served sufficient time to become a
trusty. The charges against McCall were dropped after the man who
claimed McCall had stolen his car failed to show up in court. 
182. “(The credibility of a witness, even a convict
witness, is for the jury.)” Carr, 655 So.2d at 837 (quoting Sudduth v.
State, 562 So.2d 67, 70 (Miss.1990)). The witness' “criminal record,
character, motivation, reliability, and the circumstances surrounding
his recitation of statements made ... were all factors properly left
to the jury to weigh.” Id.
183. The State argues that Gray could have
submitted an instruction requiring the jury to weigh an informant's
testimony with caution and suspicion. Gray submitted Instruction D24,
which attempted to instruct the jury to consider proof of bias,
prejudice, or motive or whether or not Saunders and McCall received
preferential treatment. This instruction was refused because it was
repetitious with Instruction D-18, which instructed the jury they were
the sole judges of the credibility of witnesses. This failure to
submit an instruction to weigh the credibility with caution and
suspicion should serve as a bar to raise this point on appeal. Carr,
655 So.2d at 837.
184. Gray was able to cross-examine Saunders and
McCall. The jury was aware that both of these individuals were cell-mates
of Gray at the time they heard his statements. The defense attorney
even called them “snitches.” The jury was aware their testimony might
185. This issue is procedurally barred and without
XIV. WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO
186. Gray claims he was denied the right to counsel
after he was taken into custody on August 15, 1994. He states he was
first appointed counsel on March 22, 1995. He further alleges that he
was denied an initial appearance within 48 hours of his arrest in
violation of URCCC 6.03. Lastly, Gray complains the statements made to
Saunders and McCall were made during the seventh month period between
August of 1994 and March 1995 when he was without counsel. He argues
that these statements might not have been made if counsel had been
187. As has been discussed previously in Issue I.,
Gray was arrested on August 15, 1994, for the burglary of Mrs.
Blackwell's home. According to the testimony of Sheriff Cross, Gray
was charged with burglary, given an initial appearance, and had an
attorney appointed to represent him on that charge. On March 15, 1995,
Gray was arrested and formally charged with the capital murder of Mrs.
Blackwell. Counsel was appointed to represent Gray regarding the
capital murder charge on March 22, 1995. 
188. Gray's argument clearly misstates the record.
He was not arrested on August 15, 1994, for the murder of Mrs.
Blackwell. On that day, Gray was arrested for the burglary of her home.
He was not charged with the capital murder of Mrs. Blackwell until he
was arrested on March 15, 1995. He promptly had counsel appointed for
him on March 22, 1995. “Under the Mississippi Constitution, the right
to counsel ‘attaches once the proceedings reach the accusatory stage,’
which is ‘earlier in the day than does the federal right.’ ” Johnson
v. State, 631 So.2d 185, 187-88 (Miss.1994) (citation omitted). “The
‘accusatory stage’ is defined by Mississippi law to occur when a
warrant is issued or, ‘by binding over or recognizing the offender to
compel his appearance to answer the offense, as well as by indictment
or affidavit.’ ” Ormond v. State, 599 So.2d 951, 956 (Miss.1992) (quoting
Miss.Code Ann. § 99-1-7 (Miss.1972)). 
189. Clearly, Gray was bound over to answer the
charge of capital murder when he was arrested on March 15, 1995. He
was appointed counsel seven days later on March 22, 1995. This was not
a denial of his right to counsel. Even if Gray had been denied his
right to counsel, he must be able to “show some adverse effect or
prejudice to his ability to conduct his defense before denial of this
right to counsel constitutes reversible error.” Ormond, 599 So.2d at
956 (citing Williamson, 512 So.2d at 876). 
190. Gray has not proven that his defense was
prejudiced. Gray alleges that he was prejudiced because during his
incarceration a key witness that could have provided crucial
information to his defense died in May of 1995. Gray was appointed
counsel in March of 1995. Nearly two months passed without any action
by Gray or his attorneys to secure the testimony of this witness prior
to his death in May of 1995. At trial no evidence was presented as to
what this witness' testimony would have been. Gray's argument is
speculative, and not evidence of prejudicial action by the State.
Ewell, 383 U.S. at 122, 86 S.Ct. 773.
191. Gray argues that the statements to Saunders
and McCall would not have been made were it not for his lack of
counsel. This argument is specious. The statements were made to McCall
in either October or November of 1995. This was seven or eight months
after counsel was appointed in March of 1995 to represent Gray on the
capital murder charge. His argument that he would not have made the
statements to McCall had he been represented by counsel is without
merit. It is mere speculation to say that he would not have made the
statements to Saunders if he had counsel appointed to represent him on
the capital murder charge when that same representation did not
prevent him from making the statements to McCall.
192. Gray also argues that he would not have pled
guilty to three felony charges in September of 1995, which made him a
convicted felon for cross-examination purposes, if he had counsel
appointed for him on the capital murder charge. Again, Gray was
appointed counsel to represent him on the murder charge in March of
1995. He cannot claim that because he was denied counsel he pled
guilty to these unrelated felonies. The record before this Court
clearly indicates that he was in fact represented by counsel on the
murder charge when he pled guilty to those unrelated felony crimes.
193. This argument is without merit. There was no
denial of Gray's right to counsel as to the murder charge. Gray had
counsel appointed for him seven days after he was arrested and charged
with capital murder. Even if there had been a denial of his right to
counsel, Gray has failed to demonstrate to this Court how his defense
XV. WHETHER THE EVIDENCE IS SUFFICIENT TO SUPPORT
194. Gray claims the evidence was insufficient to
support a sentence imposing the death penalty. He asserts the only
testimony offered by the State in the sentencing phase of the trial
was victim impact testimony. He states the proof offered at the
sentencing phase did not address the statutory aggravating
circumstances enumerated in Miss.Code Ann. § 99-19-101 (1994). Gray
argues that proof of aggravating circumstances in the sentencing phase
of a capital murder trial must be proof beyond a reasonable doubt.
White v. State, 532 So.2d 1207, 1220 (Miss.1988).
195. The jury found as an aggravating circumstance
that Gray murdered Mrs. Blackwell while engaged in the crimes of
kidnapping and rape. Gray claims there was no evidence of kidnapping,
much less proof of such crime beyond a reasonable doubt as required by
196. Gray complains that the only testimony of the
circumstances of the killing was from Russell Saunders during the
guilt phase of the trial. Saunders stated that Gray had told him that
the shooting of Mrs. Blackwell was an accident. Gray asserts that
because this is an admission of Miss.Code Ann. § 99-19-101(7)(a)
(1994), “the defendant actually killed,” the verdict is not
invalidated, but the determinations that Gray attempted to kill,
intended a killing take place, and contemplated that lethal force
would be employed were not proven beyond a reasonable doubt. Because
the jury stated they had found these factors to have been proven
beyond a reasonable doubt, Gray claims it evidences bias and prejudice
on the part of the jury. In light of this argument, he requests that
his sentence be reduced to life imprisonment or a resentencing hearing
197. Gray did not object to Sentencing Instruction
S-6, which defined the Enmund v. Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982), factors and instructed the jury on what
aggravating circumstances it could consider. This issue is
procedurally barred. Gray's attorney was specifically asked if he had
an objection to Sentencing Instruction S-6 and replied “No objection.”
Where a defendant fails to contemporaneously object to an instruction
at trial, he is procedurally barred from raising this issue on appeal.
Lester, 692 So.2d at 799; Ballenger, 667 So.2d at 1264; Brown, 690
So.2d at 297. 
198. Alternatively, this claim is without merit.
There was sufficient evidence to support the finding that this crime
took place during a kidnapping. After the guilt phase of the trial,
the State moved that all the evidence, including witnesses' testimony
and all exhibits, from the guilt phase be brought forward and admitted
in the sentencing phase. This motion was granted without objection
199. There was sufficient evidence presented at the
guilt phase to prove the aggravating circumstances. Arlene McCree
testified that Mrs. Blackwell acted very strangely when she came to
the drive-through window at the bank and asked for $1200. McCree
stated that Mrs. Blackwell kept trying to move her lips to tell her
something. As Mrs. Blackwell left the bank, McCree heard her say, “I'm
hurrying. I'm hurrying.” Harry Jones testified that he saw Gray
wrestling with someone in Mrs. Blackwell's car. Richard Weir stated he
saw a black man trying to grab a white female in a car that looked
like Mrs. Blackwell's. John Riley testified that Mrs. Blackwell's door
had been left open and her telephone wires had been disconnected.
Cleveland McCall testified that Gray had told him that he took Mrs.
Blackwell to the bank to get some money, he raped her, and he shot her.
200. The record indicates that the evidence
presented to the jury was sufficient to prove kidnapping beyond a
reasonable doubt. If there is in the record substantial evidence of
such quality and weight that, having in mind the beyond a reasonable
doubt burden of proof standard, reasonable and fair-minded jurors in
the exercise of impartial judgment might have reached different
conclusions, the verdict ... is thus placed beyond our authority to
disturb. Holly v. State, 671 So.2d 32, 40 (Miss.1996) (quoting McFee,
511 So.2d at 133-34).
201. Gray misunderstands the requirements of Enmund,
as incorporated in Miss.Code Ann. § 99-19-101(7) (1994). The jury need
only find one of the enumerated factors in order to return and impose
a sentence of death. Lockett, 517 So.2d at 1338; See Miss.Code Ann. §
99-19-101(7) (1994). However, the jury found beyond a reasonable doubt
that all four existed.
202. In his argument as to this issue, Gray
misstates the record and the law. His assignment of error is
procedurally barred for failure to object at trial. Alternatively,
this issue is without merit. The jury found beyond a reasonable doubt
all four of the factors in Miss.Code Ann. § 99-19-101(7) (1994). There
is sufficient evidence in the record to support a verdict imposing a
death sentence, and this Court will not disturb such a verdict.
XVI. WHETHER THE COURT ERRED BY GRANTING S-3 OF THE
GUILT PHASE OF THE TRIAL.
203. Gray claims that the lower court erred by
giving Instruction S-3. He alleges such an instruction prefers a
verdict of guilt of capital murder to a verdict of guilt of simple
murder. Instruction S-3 provides: The Court instructs the Jury that if
the State has failed to prove all of the essential elements of the
crime of Capital Murder, you may consider the lesser charge of Murder.
However, it is your duty to accept the law given to you by the Court;
and if the facts and the law warrant a conviction of the crime of
Capital Murder, then it is your duty to make such finding uninfluenced
by your power to find a lesser offense. This provision is not designed
to relieve you from the performance of an unpleasant duty. It is
included to prevent a failure of justice if the evidence fails to
prove the original charge but does justify a verdict for the lesser
crime. If you believe from the evidence in this case beyond a
reasonable doubt that at the time and place charged in the indictment
and testified about, that the Defendant, Rodney Gray, did willfully,
unlawfully, feloniously, and without the authority of law, and of his
malice aforethought, kill and murder Grace Blackwell, a human being,
but that he, the said Rodney Gray, was not then and there engaged in
the commission of the crime of kidnapping or the crime of rape of
Grace Blackwell, then it is your duty to find the Defendant guilty of
204. Gray argues that this instruction violates the
due process clause of the state and federal constitutions because it
has a presumption in favor of capital murder vis-a-vis simple murder.
He also asserts the instruction coerces jurors towards convicting the
accused of capital murder even though some may believe him to be
guilty only of simple murder.
205. The State submits that Gray did not object to
this instruction being given at trial. The instruction is marked as
being given, but the judge skipped it when going over the instructions
with the attorneys. BY THE COURT: I am going to treat it as a
circumstantial evidence case. It is almost entirely, so I am going to
treat it that way. What do you say to S-1? BY MR. LEE: No objection.
BY THE COURT: Given. S-2? Given. BY MR. LEE: Okay. BY MR. TURNER:
Judge, in light of your ruling, I have S-4 I want to submit. It talks
about circumstantial evidence. BY THE COURT: What do you say to S-4?
BY MR. LEE: No objection. BY THE COURT: Given. S-5?
206. The record indicates that S-3 was missed by
both the State and the Defense. However, when Instruction S-3 was read
to the jury by the judge, Gray did not object. Because Gray did not
enter a contemporaneous objection when the instruction was read to the
jury, he should be barred from raising the issue for the first time on
appeal. Where a Defendant fails to contemporaneously object to an
instruction at trial, he is procedurally barred from raising this
issue on appeal. Lester, 692 So.2d at 799; Ballenger, 667 So.2d at
1264; Brown, 690 So.2d at 297. 
207. In the alternative, Gray's claim as to this
issue is without merit. This Court has considered such “acquit-first”
instructions before. There is nothing in Mississippi jurisprudence
that prohibits such an instruction. Carr, 655 So.2d at 848. Jury “(
... instructions should be read in their entirety to determine if
there was error).” Walker, 671 So.2d at 608 (quoting Chase, 645 So.2d
at 852). Gray's claim that the instruction coerces jurors into
convicting of capital murder even though they may believe him guilty
only of simple murder is unfounded. This Court has held such a result
is not required or warranted from this instruction. Chase, 645 So.2d
208. This assignment of error is procedurally
barred for lack of an objection at trial. Alternatively, the issue is
without merit because Mississippi law does not prohibit the giving of
such an instruction.
XVII. WHETHER THE COURT ERRED BY GRANTING S-4 ON
CIRCUMSTANTIAL EVIDENCE AT THE GUILT PHASE OF THE TRIAL.
209. Gray asserts that Instruction S-4 is erroneous
because it provides: The Court instructs the Jury that it is not
necessary that facts be proved by direct evidence, but may be proved
by circumstantial evidence. Circumstantial evidence is evidence which
proves a fact from which an inference of the existence of another fact
may be shown. Both circumstantial evidence and direct evidence are
equally admissible at trial. Further, the guilt of the defendant may
be proved wholly by circumstantial evidence, so long as such guilt is
proven beyond a reasonable doubt.
210. Gray argues that wholly circumstantial
evidence must also prove guilt to the exclusion of every other
reasonable hypothesis. Barrett v. State, 253 So.2d 806, 809
(Miss.1971). He claims because this instruction did not contain the
language “to the exclusion of every reasonable hypothesis consistent
with innocence,” it is erroneous. Thus, he states the verdict must be
211. The State asserts the procedural bar should be
applied because Gray did not object to Instruction S-4 when it was
submitted. The Court agrees. Where a defendant fails to
contemporaneously object to an instruction at trial, he is
procedurally barred from raising this issue on appeal. Lester, 692
So.2d at 799; Ballenger, 667 So.2d at 1264; Brown, 690 So.2d at 297.
212. Alternatively, the issue is without merit.
Although Instruction S-4 did not contain the language “to the
exclusion of every other reasonable hypothesis consistent with
innocence,” other instructions given to the jury did. See S-1 (C.P.260),
S-2 (C.P.261), D-2 (C.P.269), D-3 (C.P.270), D-7 (C.P.274), and D-13 (C.P.278).
“This Court has consistently stated that jury instructions must be
considered as a whole.” Walker, 671 So.2d at 608 (citing Roundtree v.
State, 568 So.2d 1173, 1177 (Miss.1990)). 
213. Gray also cited Parker v. State, 606 So.2d
1132 (Miss.1992), to support his claim that Instruction S-4 was
erroneous. Parker does not support Gray's claim. The typical
circumstantial evidence instruction was more of a peripheral issue in
Parker. The main issue dealing with circumstantial evidence was the
“two theory” instruction. This Court in Parker held that a
“two-theory” instruction is required in an entirely circumstantial
evidence case. Parker, 606 So.2d at 1140-41.
214. The State submits that this case was not
entirely circumstantial. Gray made statements to two cell mates
admitting to the murder of Mrs. Blackwell. Based on these statements,
this case is taken out of the circumstantial context. Taylor, 672
So.2d at 1270. See also Mack v. State, 481 So.2d 793, 795 (Miss.1985).
The trial judge granted the circumstantial evidence instructions out
of an abundance of caution.
215. In addition, the State directs this Court's
attention to Instruction D-5, where the lower court granted a “two
theory” instruction. Instruction D-5 provides: The Court instructs the
jury that were there are two plausible theories, sustained by the
evidence, one tending to show the Defendant not guilty, and the other
tending to show the Defendant guilty, and the jury is unable to
determine which theory is true, it must accept the theory favorable to
the Defendant, and find the Defendant not guilty.
216. This assignment of error is procedurally
barred because Gray failed to object at the time the instruction was
given. Further, this instruction was unnecessary, but was given out of
abundance of caution. When considering the instructions as a whole,
the jury was properly instructed as to the proof required when
considering circumstantial evidence. Therefore, this issue is without
XVIII. WHETHER THE EVIDENCE SUPPORTED A KIDNAPPING
INSTRUCTION AT GUILT PHASE OF THE TRIAL.
217. Gray alleges the trial judge erred in granting
Instruction S-5, which described the elements of kidnapping. Gray
argues that no evidence of kidnapping was presented to the jury.
Therefore, granting the instruction was error requiring reversal of
the verdict. Gray cites Wadford v. State, 385 So.2d 951 (Miss.1980),
to support his argument.
218. Gray did not offer a pinpoint cite in Wadford
to indicate which point in the case supported his proposition. We can
only presume Gray wishes to direct the Court's attention to the rule
stated in Pittman v. State, 297 So.2d 888, 893 (Miss.1974), that holds
instructions are only to be given where they are applicable to the
facts developed in the case. Wadford, 385 So.2d at 954.
219. Gray objected at trial to the giving of
Instruction S-5 claiming the evidence did not support such an
instruction. The trial court overruled the objection and stated in the
record its reasoning. BY THE COURT: Given. S-5? BY MR. LEE: I am going
to object to that instruction. There is no proof of the kidnapping in
evidence. BY THE COURT: Objection overruled. The testimony of Mrs.
McCree, I believe her name is, the teller at the Louin Branch Bank,
she testified as to the peculiar circumstances that occurred there.
That was in Jasper County, and then through the testimony of the
gentleman at La-Z-Boy, whatever his name was, he testified he saw the
red vehicle with the Black male and White female struggling, and the
testimony of Jones in another area of Newton County, who testified he
recognized the Defendant and some unknown person appearing to be
struggling. Then later the evidence being the lady was killed
northeast of Decatur, which is approximately eight miles from the site
near Turkey Creek. So, I think that is sufficient evidence to warrant
the jury to find the Defendant guilty of the crime of kidnapping. So
your objection is overruled, and it is given.
220. Before an instruction can be given, it must be
supported by the evidence. Ballenger, 667 So.2d at 1255. The trial
judge noted on the record that the evidence presented to the jury
supported such an instruction. For these reasons and those discussed
in Issue XV regarding the sufficiency of the evidence to prove
kidnapping, we find this issue is without merit.
XIX. WHETHER THE VERDICT IS AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE.
221. Gray states that his conviction of capital
murder required proof that he killed Mrs. Blackwell while engaged in
the commission of rape or kidnapping. He argues that no evidence of
kidnapping was presented to the jury and the evidence of rape is
circumstantial except for the testimony of Cleveland McCall, who
stated Gray admitted raping Mrs. Blackwell. Gray also contends the
evidence did not exclude the possibility of consensual sexual
intercourse. Lastly, he argues that no evidence of penetration was
presented to the jury. Therefore, he claims he was not proved to be
guilty of capital murder.
222. All of these claims and allegations have been
previously discussed in this opinion in Issues VIII., XV., and XVIII.
The record clearly supports a finding of guilt and sentence of death.
This Court has stated “[w]hen reviewing a challenge to the weight of
the evidence, this Court must determine whether the trial judge abused
his discretion....” Taylor, 672 So.2d at 1256. “This Court, accepting
as true all evidence favorable to the State, will determine whether
‘the verdict is so contrary to the overwhelming weight of the evidence
that to allow it to stand would be to sanction an unconscionable
injustice.’ ” Id. (quoting Wetz v. State, 503 So.2d 803, 812-13
223. Based on the evidence in the record presented
before the Court, we hold that the jury verdict was not against the
overwhelming weight of the evidence. This issue is without merit.
224. This Court must finally decide if the death
sentence in this case “is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.”
Miss.Code Ann. § 99-19-105(3)(c) (1994). If the sentence is
disproportionate, this Court may “[s]et the sentence aside and remand
the case for modification of the sentence to imprisonment for life.”
Miss.Code Ann. § 99-19-105(5)(c) (1994). A comparison is made with
other cases in which the death penalty was imposed and heard on appeal
by this Court, considering the crime and the defendant. Cabello v.
State, 471 So.2d 332, 350 (Miss.1985). 
225. Having given individualized consideration to
the both the crime and defendant in the case sub judice, this Court
can find nothing that would make the death penalty excessive or
disproportionate. The record reflects that Gray: (1) abducted the
victim from her home; (2) forced her to withdraw money from her bank
account; (3) raped her; (4) shot her in the face with a shotgun; (5)
ran over her with her own car; and (6) eventually murdered her.
Considering these facts in comparison to other cases, there is nothing
that would disqualify this defendant from receiving the death penalty.
Holland v. State, 705 So.2d 307 (Miss.1997) (death sentence was
proportionate where the defendant asphyxiated the victim by stuffing
panties down her throat and tying a shirt around her neck, inflicted
stab wounds to her chest, dealt a crushing blow to her head, and
sexually assaulted her); Brown v. State, 682 So.2d 340 (Miss.1996),
cert. denied, 520 U.S. 1127, 117 S.Ct. 1271, 137 L.Ed.2d 348 (1997) (death
sentence affirmed where the defendant shot a store clerk four (4)
times-once in the head, once through the heart, and twice in the back-during
the commission of an armed robbery).
226. All of the issues before this Court are either
procedurally barred or are without merit. Rodney Gray raises no issue
meriting reversal. The record supports his conviction of capital
murder and the sentence requiring the imposition of the death penalty.
Further, upon review of the totality of this case, we can say that the
death penalty is not disproportionate as applied to Gray. Therefore,
this Court affirms the lower court's decision finding Rodney Gray
guilty of capital murder and imposing the death penalty.
227. CONVICTION OF CAPITAL MURDER AND SENTENCE OF
DEATH AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL
DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7)
(1972) AND M.R.A.P. 41(a).
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and
BANKS, McRAE, SMITH, MILLS and WALLER, JJ., concur.
Gray v. State, 887 So.2d 158 (Miss.
Background: Defendant filed application for leave
to file petition for postconviction relief from capital murder
conviction and death sentence, as affirmed, 728 So.2d 36,cert. denied,
526 U.S. 1055, 119 S.Ct. 1366, 143 L.Ed.2d 526.
Holdings: The Supreme Court, Cobb, J., held, inter
alia, that: (1) defendant was procedurally barred by operation of res
judicata from relitigating issues that had already been decided on
direct appeal; (2) ineffective assistance of counsel issue upon which
defendant sought leave to file petition for postconviction relief was
not supported with requisite new or additional evidence not offered or
unavailable to trial court to warrant further proceedings; (3) defense
counsel did not render ineffective assistance; (4) defendant's
application for leave to file petition was facially insufficient to
warrant hearing on issue as to whether he was mentally retarded and
thus ineligible for death sentence; (5) death penalty statute did not
violate defendant's right of protection against cruel and unusual
punishment; (6) sentencing verdict was not defective for its failure
to include written confirmation that jury found beyond reasonable
doubt aggravating factors supportive of death sentence; and (7)
defendant was not denied right to fair trial on basis of alleged
cumulative errors. Affirmed.
COBB, Presiding Justice, for the Court.
1. On January 25, 1996, a Newton County jury
convicted Rodney Gray of the capital murder of Grace Blackwell. This
Court thereafter affirmed Gray's conviction and sentence on direct
appeal. Gray v. State, 728 So.2d 36 (Miss.1998). Gray filed a petition
for writ of certiorari with the United States Supreme Court, which
that Court denied. Gray v. Miss., 526 U.S. 1055, 119 S.Ct. 1366, 143
L.Ed.2d 526 (1999). Gray now seeks leave to pursue post-conviction
relief in the trial court.
2. The purpose of post-conviction proceedings is to
bring forward facts to the trial court that were not known at the time
of the judgment. Williams v. State, 669 So.2d 44, 52 (Miss.1996). The
procedure is limited to those facts and matters which could not or
should not have been brought at trial or on direct appeal. Id.;
Miss.Code Ann. §§ 99-39-1 to -29 (Rev.2000 & Supp.2003). If newly
discovered evidence would likely produce a different result or verdict
and the proponent shows that the evidence was “discovered since the
trial, that it could not have been discovered before the trial by the
exercise of due diligence, that it is material to the issue, and that
it is not merely cumulative, or impeaching” then such evidence
warrants a new trial. Ormond v. State, 599 So.2d 951, 962 (Miss.1992).
3. On the morning of August 15, 1994, 79-year-old
Grace Blackwell drove to the drive-through teller window of her bank
in Jasper County. Blackwell presented a blank check and asked the
teller to fill the check out in the amount of $1200. The teller's view
of the car's back seat was blocked by hanging clothes. The teller
testified that after giving her the money, she heard Blackwell say,
“I'm hurrying, I'm hurrying.” The teller notified the police, and they
went to Blackwell's home only to find the front door open and the
phone disconnected. Witnesses testified that they saw Blackwell's car
around noontime being driven by a young black male, and one witness
identified the driver as Rodney Gray.
4. Police found Blackwell's body at the end of a
bridge in Newton County at 1:40 p.m. Her car was found elsewhere in
Newton County. Investigators determined that Blackwell had been killed
by a shotgun blast to the mouth. Later, an autopsy revealed that
Blackwell had also been raped and that her body had been run over by a
5. Investigators questioned Rodney Gray on August
15 about Blackwell's disappearance and arrested him that same day.
While in jail, Gray phoned his girlfriend, Mildred Curry, to tell her
that he had hidden money in a bathroom vent. A search of Curry's
trailer turned up $1,123 hidden in the bathroom air duct. The clothes
and boots which Gray had been wearing on the day of the murder were
found in a bucket behind Curry's trailer.
6. A Newton County grand jury indicted Gray for the
capital murder of Grace Blackwell in violation of Miss.Code Ann. §
97-3-19(2)(e) (murder while engaged in the commission of the crime of
kidnapping/and/or rape). Attorneys Thomas D. Lee and B. Jackson Thames,
Jr. represented Gray in the trial court. At trial, FBI experts
testified that the foot print at the Blackwell home came from Gray's
boot and that tests on DNA samples taken from Blackwell's
undergarments showed that Gray was the likely source. The probability
that the semen came from someone other than Gray was 1 in 446,000,000.
Further testimony came from Russell Saunders, one of Gray's cell
mates, who testified that while in jail Gray told him that he (Gray)
had forced Blackwell to withdraw money from the bank, raped her and
then shot her with a .410 shotgun. The jury found Gray guilty of
capital murder and then heard evidence as to mitigating and
aggravating circumstances pertinent to the determination of the
sentence which should be imposed on Gray. After hearing testimony from
several witnesses from the State and the defense, the jury reached a
unanimous verdict finding that Rodney Gray should suffer death for the
capital murder of Blackwell.
I. Ineffective Assistance of Counsel:
7. Gray alleges several instances of ineffective
assistance of counsel in support of his motion for post-conviction
relief. 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). To receive post-conviction
relief for ineffective assistance of counsel, a claimant must
demonstrate (1) that counsel's performance was deficient and (2) 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). There is no constitutional right to errorless
counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988). The
defendant has a right to have competent counsel, but this right does
not entitle the defendant to have an attorney who makes no mistakes at
trial. Mohr v. State, 584 So.2d 426, 430 (Miss.1991). Thus, the focus
of the inquiry is whether counsel's assistance was reasonable
considering all the circumstances. Stringer, 454 So.2d at 477.
8. Under the first prong of the Strickland test,
defense counsel is presumed competent. Cabello, 524 So.2d at 315. A
reviewing court must strongly presume that counsel's conduct falls
within a wide range of reasonable professional assistance. Furthermore,
the reviewing court must consider whether the challenged act or
omission might be sound trial strategy. Stringer, 454 So.2d at 477.
9. In evaluating the second prong of the Strickland
test, 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. This means a probability
sufficient to undermine the confidence in the outcome. Mohr, 584 So.2d
at 430. Additionally, in a death penalty case, the ultimate inquiry is
“whether there is a reasonable probability that, absent the errors,
the sentencer-including an appellate court, to the extent it
independently re-weighs the evidence-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. 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
A. Change of Venue
10. Gray's first allegation of ineffective
assistance of counsel is that his trial counsel failed to properly
argue a motion for change of venue. Gray raised this issue on direct
appeal to this Court after his conviction. Gray v. State, 728 So.2d at
63. At trial, the motion was accompanied by two affidavits alleging
that Gray could not receive a fair trial in Newton County because the
crime involved a black defendant and a white victim. During the
hearing on the motion, the State presented six witnesses who testified
to the contrary. Id. The trial court denied the motion, and this Court
held that the State had successfully rebutted the presumption that
Gray could not receive a fair trial in Newton County. Id. at 66.
11. This Court addressed the issue of whether the
trial court properly denied the motion to transfer venue on Gray's
direct appeal. Thus, Gray is now procedurally barred by res judicata
from relitigating this issue through post-conviction relief. Miss.Code
Ann. § 99-39-21(3) (1972 & Supp.2003). Furthermore, Gray cannot
relitigate this issue in the guise of an ineffective assistance of
counsel claim. Williams v. State, 722 So.2d 447, 449 (Miss.1998). On
the merits, Gray offers as evidence to support his request for post-conviction
relief only the motion to transfer venue and attached newspaper
articles presented to the trial court. However, Gray does not present
new or additional evidence not offered or unavailable to the trial
court regarding the issue of community prejudice and whether he could
receive a fair trial in Newton County. Accordingly, this issue is
12. Gray next argues that his trial counsel were
ineffective in failing to seek a continuance of the trial after the
motion for change of venue was denied. Inasmuch as the motion for
change of venue was properly denied, counsel cannot be faulted for
deciding not to seek a continuance. The failure to raise objections or
make motions which have no merit cannot be viewed as poor
representation. Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994). The
motion to change venue was denied on October 30, 1995, and trial was
not scheduled to begin until November 27, 1995. Trial counsel did in
fact file a motion for continuance based upon other matters on
November 17, 1995, and the trial was postponed until January 22, 1996.
Thus, Gray's trial counsel requested and obtained a continuance
lasting 56 days from the date of the trial setting and 84 days from
the date of the denial of the motion to transfer venue. Accordingly,
this issue is without merit.
C. Motion to quash the jury venire
13. Gray next asserts that his trial counsel were
ineffective by failing to develop an “adequate and sufficient record”
as to potential black jurors struck by the State for cause. After the
removal of jurors for cause, Gray's trial counsel moved to quash the
venire for two reasons: (1) there was an insufficient number of
African-Americans on the panel in relation to the percentage of blacks
in Newton County, and (2) the printed juror summonses mailed to
potential jurors had “capital murder” printed on them in bold print,
thus prejudicing the prospective jury pool. The trial court denied
this motion. Gray asserts that the motion to quash the jury venire
should have been granted and that but for trial counsel's ineffective
representation, the outcome would likely have been different.
14. Gray fails to explain with any specificity in
what manner the record was purportedly deficient. To establish a prima
facie case alleging that a jury represents an unfair cross-section of
the community, Gray must demonstrate: “(1) that the group alleged to
be excluded is a “distinctive” group in the community; (2) that the
representation of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of such persons
in the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.”
Lanier v. State, 533 So.2d 473, 477 (Miss.1988). Gray offered no
evidence at trial or in the present case demonstrating “systematic
exclusion.” The record before this Court shows that the trial judge
overruled many of the State's challenges for cause and that the trial
judge excluded both black and white jurors for valid reasons of cause,
including hardship. Thus, Gray has failed to establish a prima facie
case of systematic exclusion under the standard set out in Lanier.
Gray's inability to meet the standard set out in Lanier also prevents
him from demonstrating that his trial counsel's performance was
deficient under the first prong of the Strickland standard.
15. In regard to Gray's claim that trial counsel
was ineffective by failing to offer proof of jury prejudice resulting
from the words “capital murder” being printed on the jury summons form,
the record shows that trial counsel conducted a voir dire of the panel
regarding potential prejudice resulting from the jury summons. Gray v.
State, 728 So.2d at 66. Gray's trial counsel at both the trial and
direct appellate level could offer no proof besides speculation that
the venire was prejudiced as a result of the summons. Id. at 66-67.
Furthermore, Gray has presented no additional evidence of prejudice of
the jury venire with his petition for post-conviction relief.
Accordingly, the issue of ineffective assistance of counsel regarding
the motion to quash the jury venire is without merit.
D. Motion to dismiss
16. Next, Gray alleges that trial counsel failed to
properly challenge the indictment, arguing that the underlying
felonies listed in the indictment caused it to be substantially
defective and counsel's motion to dismiss the indictment should have
been granted. The Court analyzed this issue on direct appeal and found
it to be procedurally barred. Despite the bar, the Court further
analyzed the issue of the sufficiency of the indictment and found it
to be without merit. Id.
17. The indictment charged that Rodney Gray “did
willfully, unlawfully, feloniously and of his malice aforethought kill
and murder Grace Blackwell, a human being, while engaged in the
commission of the crime of kidnaping [sic] and/or rape.” Gray asserts
that the indictment fails to state the essential elements of the
offense charged and that the motion to dismiss was denied because
trial counsel was ineffective in “properly addressing the issue.” On
direct appeal, this Court noted that pursuant to Rule 7.06 of the
Uniform Rules of County and Circuit Court, an indictment is sufficient
where it discloses: 1) the name of the accused; 2) the date on which
the indictment was returned; 3) a statement that the prosecution is
brought in the name of the State; 4) the county and judicial district
in which the indictment is brought; 5) the date on which the offense
was committed; 6) the signature of the grand jury foreman; and, 7) the
words, “against the peace and dignity of the state.” Gray, 728 So.2d
at 70. The Court specifically held that the indictment adequately put
Gray on notice of the charge of capital murder and that it was not
necessary to specifically set forth all the elements of the underlying
felonies contained in the indictment. Id. at 70-71. Thus, the second
prong of the Strickland test requiring that, but for counsel's errors
the result would have been different, is not met. Furthermore, the
evidence presented at trial was sufficient to prove both kidnaping and
rape beyond a reasonable doubt. The motion to dismiss the indictment
was properly denied simply because it lacked merit and not because it
was ineffectively argued. The claim of ineffective assistance of
counsel regarding the motion to dismiss the indictment is without
E. Jail house confessions
18. Gray alleges that trial counsel were
ineffective for failure to exclude from evidence the statements which
Gray made to his cell mates as well as the failure to secure an
adequate cautionary instruction after the statements were admitted.
Russell Saunders and Cleveland McCall both shared a cell with Gray
after his arrest, and both testified at trial that Gray had admitted
his guilt to them. However, Gray's trial counsel cross-examined both
of them on their testimony. Id. at 71-72. On direct appeal, this Court
initially held the issue to be procedurally barred but went on to
alternatively find that the issue had no merit.
Gray claims the two inmates stood to gain something
in exchange for their testimony. This court has not viewed such
testimony favorably. See McNeal v. State, 551 So.2d 151, 158
(Miss.1989). The evidence in the record before the court does not
establish the inmates received anything in exchange for their
statements. True, Saunders was made a trusty sometime after he told
the sheriff what Gray had said, but his testimony indicated that he
had served sufficient time to become a trusty. The charges against
McCall were dropped after the man who claimed McCall had stolen his
car failed to show up in court. Gray, 728 So.2d at 72. Since the Court
has previously considered this issue both procedurally and on the
merits and no new evidence has been provided in the petition for post-conviction
relief, the doctrine of res judicata applies and bars reconsideration.
Miss.Code Ann. § 99-39-21(3) (1972 & Supp.2003).
F. Failure to develop/present mitigating
19. Gray alleges that trial counsel were
ineffective by failing to investigate and present mitigating evidence
during the sentencing phase of the trial. Gray argues that if trial
counsel had conducted a thorough investigation of his background,
ample evidence of mental illness and mental retardation would have
been discovered and could have been presented to the jury for
mitigation in sentencing. As evidence of this assertion, Gray's
current counsel attaches the affidavits of Annie Lois Tatum (Gray's
mother), Deirdre Jackson and Tomika Harris of the Mississippi Office
of Capital Post-Conviction Counsel, Stephanie Wilson and Melissa Jones
(Gray's older sisters), and Ola Jones (Gray's former teacher). Gray
argues that the information obtained post-trial from the above
affiants and other individuals who knew him as a child supports his
claim that he suffers from mild mental retardation and that had such
information been presented to the jury, there is a reasonable
probability that the outcome of the sentencing proceeding would have
been markedly different.
20. 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 at 450
(citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir.1997)).
Furthermore, where a motion for post-conviction relief makes no
showing that interviewing additional witnesses would have produced a
different outcome, the petitioner has failed to make out a prima facie
claim of ineffective assistance of counsel. United States v. Green,
882 F.2d 999, 1003 (5th Cir.1989); Foster v. State, 687 So.2d at 1134.
In addition, this Court has previously held that so long as trial
counsel presents to the sentencing jury evidence of a capital
defendant's educational background, psychological profile and
childhood experience, there is no professional error under the
Strickland standard. Brown v. State, 798 So.2d 481, 498-99
(Miss.2001). In the present case, Gray's defense attorneys did, in
fact, present a case in mitigation for the jury to consider.
21. At the sentencing phase of the trial, defense
counsel called Rosa Gallaspy and Luise Bradley to testify that they
had watched Gray grow up and that he had no predisposition toward
violence. Gray's attorney also called Roosevelt Jones, a local
minister, and Hattie Morgan, a neighbor, to give similar testimony.
Rodney Gray's mother, Annie Tatum, testified at the sentencing phase
of the trial that her divorce from Rodney's father was a source of
emotional trauma to Rodney and that the divorce adversely impacted his
performance in school.
22. In regard to Gray's mental capacity, the trial
court ordered that Gray be given a mental assessment, and forensic
psychologist Charlton S. Stanley, Ph.D., issued a report that Gray
possessed a full scale IQ score of 80. The report characterized Gray
as “dull normal,” but not as mentally retarded. Upon the basis of Dr.
Stanley's report, trial counsel were not deficient according to the
Strickland standard in failing to offer further evidence of mental
retardation. Evidence that Gray was “dull normal” would have had
little if any persuasive effect on the jury in mitigation. The issue
of failure to present mitigating evidence is a close call, but
according to the evidence presented, Gray's trial counsel were not
ineffective according to the Strickland standard.
G. Failure to present a meaningful defense
23. Gray's final claim of ineffective trial counsel
is based on counsel calling only five defense witnesses and in not
having Gray testify in his own behalf. Decisions regarding which
witnesses to call are decidedly within the realm of trial strategy.
King v. State, 679 So.2d 208, 211 (Miss.1996). Gray offers no
affidavits, documents or other evidence to support this claim as
required by Miss.Code Ann. § 99-39-9(1)(e). Furthermore, the record
discloses that the trial court explained to Gray in great detail that
he had a constitutional right to testify in his own behalf but he
voluntarily chose not to do so. The claim of ineffective assistance of
counsel in failing to present a meaningful defense is without merit.
24. Inasmuch as all the alleged instances of
ineffective assistance of counsel are without merit, it follows that
the entire issue is without merit.
II. Mental Retardation within the meaning of
Atkins v. Virginia
25. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002), held that execution of a mentally
retarded prisoner constitutes cruel and unusual punishment prohibited
by the Eighth Amendment to the U.S. Constitution. The United States
Supreme Court has held that the Eighth Amendment is incorporated by
the Fourteenth Amendment. Robinson v. Cal., 370 U.S. 660, 667, 82 S.Ct.
1417, 1421, 8 L.Ed.2d 758 (1962). The Atkins Court held the death
penalty to be “excessive” as applied to mentally retarded inmates and
found that the Constitution “places a substantive restriction on the
State's power to take the life” of a mentally retarded prisoner.
Atkins, 536 U.S. at 321, 122 S.Ct. 2242. The Court found that there
existed a national consensus which called into question “the
relationship between mental retardation and the penological purposes
served by the death penalty.” They further recognized that “clinical
definitions of mental retardation require not only sub-average
intellectual functioning, but also significant limitations in adaptive
skills such as communication, self-care, and self-direction that
became manifest before age 18.” Id. at 317-18, 122 S.Ct. 2242.
Furthermore, the Supreme Court stated: Mentally retarded persons
frequently know the difference between right and wrong and are
competent to stand trial. Because of their impairments, however, by
definition they have diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control impulses, and
to understand the reactions of others. There is no evidence that they
are more likely to engage in criminal conduct than others, but there
is abundant evidence that they often act on impulse rather than
pursuant to a premeditated plan, and that in group settings they are
followers rather than leaders. Their deficiencies do not warrant an
exemption from criminal sanctions, but they do diminish their personal
culpability. Id. at 317-18, 122 S.Ct. 2242.
26. Determining who is mentally retarded for
purposes of this prohibition has been left to the individual States.
Not all people who claim to be mentally retarded will be so impaired
as to fall within the range of mentally retarded offenders about whom
there is a national consensus. As was our approach in Ford v.
Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), with
regard to insanity, “we leave to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences.” Id., at 399, 405, 416-417, 477 U.S. 399, 106
S.Ct. 2595, 91 L.Ed.2d 335. Atkins, 536 U.S. at 317, 122 S.Ct. 2242.
This Court has adopted the definition of mental retardation as
promulgated by the American Psychiatric Association [APA], which
defines mental retardation as follows:
The essential feature of Mental Retardation is
significantly sub-average general intellectual functioning (Criterion
A) that is accompanied by significant limitations in adaptive
functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academic skills,
work, leisure, health, and safety (Criterion B). The onset must occur
before age 18 years (Criterion C). Mental Retardation has many
different etiologies and may be seen as a final common pathway of
various pathological processes that affect the functioning of the
central nervous system.
American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 41 (4th ed.2000). “Mild” mental
retardation is typically used to describe people with an IQ level of
50-55 to approximately 70. Atkins, 536 U.S. at 309, 122 S.Ct. 2242;
Foster v. State, 848 So.2d 172, 174 (Miss.2003).
27. Based upon the evidence presented in the
petition for post-conviction relief, in Gray's reply to the state's
response to his petition,FN1 and the trial record, Gray has not
established that he is entitled to a hearing on the issue of mental
retardation. Gray provides neither affidavits of experts opining his
mental retardation, nor is there any qualified opinion contained in
the trial record, other than that of forensic and counseling
psychologist, Charlton S. Stanley, Ph.D., who examined Gray before
trial by order of the court to determine whether Gray was competent to
stand trial and whether there were possible mitigating circumstances
in the case. Among the several tests FN2 given by Dr. Stanley was the
Wechsler Adult Intelligence Scale, which showed Gray's full scale IQ
score of 80, Verbal IQ score of 81, and non-verbal IQ score of 81, all
of which Dr. Stanley classified as “low dull normal.” A score on the
Wechsler test of 80-81 is well above the maximum score for “mild”
mental retardation as defined by the APA. Diagnostic and Statistical
Manual of Mental Disorders. 42-43 (4th ed.2000). FN1. Gray's reply was
filed December 31, 2003, and no further reply or supplementation was
filed subsequent to this Court's definitive opinion, published on May
20, 2004, regarding the standards and procedures to be followed in
order to obtain an evidentiary hearing in the trial court on the issue
of mental retardation. See Chase v. State, 873 So.2d 1013 (Miss.2004).
FN2. These tests were administered in 1995, when
Gray was 23 years old. There is no mention in the record before us
that the Minnesota Multiphasic Personality Inventory-II was
administered. See Foster, 848 So.2d at 174.
28. Instead, Gray's post-conviction relief counsel
presents elementary and middle school grade records, none of which
indicates that his IQ had been tested, or that he was in special
education classes. Counsel also presented affidavits of Gray's
immediate family members regarding the deficiencies in his adaptive
skills as well as his poor performance in school. In addition there
were affidavits from persons from the Mississippi Office of Capital
Post-Conviction Counsel, and Ola Jones, identified by Gray's post-conviction
counsel as one of Gray's former teachers. However, Jones's name does
not appear in the school records where the names of all Gray's
teachers are shown, nor does her affidavit state that she ever taught
Gray. Rather, she states that she is currently principal of Bay
Springs Elementary School, and that “From what I can recall, Rodney
was in the special education program at Bay Springs Middle School
between the grades of 4th and 8th. I am not sure at what point he was
enrolled in the special education program but it would have been
during that time period.” She also states in her affidavit that “I am
not sure what his IQ tests scores were. I know that he had to have had
a learning disability or he would not have been placed in the special
education program.” Although she said that she “taught self-contained
children” she did not say that she ever taught Gray. There is no
explanation given as to why Jones, as the current principal of the
same elementary and middle school attended by Gray from 1978-85, would
give such vague statements rather than referring to the school records
and providing specific information.
29. Gray's counsel bases his assertion of Gray's
mental retardation, with onset before age 18, almost entirely on
Jones's affidavit. The educational records reflect a child who at
times struggled in school, but they do not offer any proof that Gray's
difficulties in school were as a result of mental retardation.
Furthermore, none of the affiants, other than Dr. Stanley, possess the
requisite qualifications to determine mental retardation, and his nine
page report of his evaluation of Gray nowhere contains any mention of
30. The Post-Conviction Collateral Relief Act
places the burden upon Gray to prove that he is mentally retarded to
such an extent that he may avoid the death penalty. Miss.Code Ann §
99-39-23(7) (Supp.2000). Gray has not met his burden, and this issue
is without merit.
III. DNA evidence and the right to confront
31. Citing the confrontation clause of the Sixth
Amendment, Gray asserts that the testimony of Melissa Smrz, a forensic
serologist employed in the FBI laboratory, should have been stricken
at trial because she was not the actual examiner who performed the
testing on the samples. The FBI's DNA Laboratory performed tests on
semen samples recovered from the victim's underwear. Smrz stated at
trial that she supervised the sampling procedures which were actually
performed by a lab technician. Smrz testified that the results showed
the mathematical probability that the donor was someone other than
Gray was 1 in 446,000,000. Gray alleges that he was denied his Sixth
Amendment right to confront the witnesses against him because the lab
technician was not available.
32. This objection was presented to the trial judge
who found that Smrz was the head of her department and that the tests
were performed under her direction and control. Gray, 728 So.2d at 56.
On direct appeal, this Court considered this issue on the merits and
affirmed the trial court:
In the case sub judice Gray was able to confront
and cross-examine the expert who evaluated the autoradiographs and did
the sizing procedure, Ms. Smrz. She based her opinions and testimony
on the results of her examinations of the test results. This was
permissible testimony under Miss. R. Evid. 703 and did not violate
Gray's Sixth Amendment right to confront witnesses. He was able to
cross-examine and confront Ms. Smrz. Therefore, this issue is without
merit. Id. at 57. The issue of the admissibility of the DNA evidence
having been previously raised and rejected is now procedurally barred
by the doctrine of res judicata. Miss.Code Ann. § 99-39-21(3).
IV. Jury instructions and Tison v. Arizona
33. Gray argues for the first time that jury
instructions given at the sentencing phase of the trial violated his
Eighth Amendment rights because the instructions allowed the jury to
impose the death sentence without finding that he intended to kill his
victim. Gray claims that the instructions were given in contravention
of the United States Supreme Court holding in Tison v. Arizona, 481
U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In that case, however,
the Court held that imposing the death penalty in felony-murder cases
upon defendants whose participation in the underlying felony was major
and whose mental state was one of reckless indifference to the value
of human life was not a violation of the Eighth Amendment prohibition
against cruel and unusual punishment. Id. at 157-58, 107 S.Ct. at
1688. In the present case, a challenge to the jury instructions could
have been made at both trial and on direct appeal but since it was not,
Gray is now procedurally barred from consideration pursuant to
Miss.Code Ann. § 99-39-21(1). See Brown v. State, 798 So.2d at 491.
Unless Gray can demonstrate cause for failure to raise this issue and
actual prejudice resulting from the trial court's actions, the issue
of improper jury instructions is without merit. Miss.Code Ann. §
34. The jury was instructed in accordance with
Miss.Code Ann. § 99-19-101(7) which provides: (7) In order to return
and impose a sentence of death the jury must make a written finding of
one or more of the following: (a) The defendant actually killed; (b)
The defendant attempted to kill; (c) The defendant intended that a
killing take place; (d) The defendant contemplated that lethal force
would be employed.
It is proper to instruct a jury that it may
consider all of the intent factors contained in Miss.Code Ann. §
99-19-101(7), yet may properly find only one of these factors, as the
evidence permits. Jordan v. State, 786 So.2d 987, 1026 (Miss.2001).
This Court has previously held that the jury can be instructed on all
of these factors at the conclusion of the sentencing phase. Neither
Tison nor its predecessor, Enmund v. Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982), requires more than one of the above
findings. Walker v. State, 863 So.2d 1, 26 (Miss.2003).
35. In order to return a death sentence, the jury
must find beyond a reasonable doubt the existence of at least one of
these factors. Id. There must, of course, be sufficient evidence to
support the jury's finding of any such factors. Carr v. State, 655
So.2d 824, 838-39 (Miss.1995). The jury found that Gray actually
killed Grace Blackwell. Accordingly, Gray cannot prove cause and
actual prejudice under Miss.Code Ann. § 99-39-21(1) from his failure
to raise this issue before the trial court or on direct appeal, and
his claim fails for lack of merit.
36. Gray further alleges that the Mississippi death
penalty statutes are unconstitutional in that they are applied to all
defendants who are guilty of felony murder. This Court has held
previously that Mississippi's capital murder scheme is not
unconstitutional simply because it makes the death penalty a possible
punishment for felony murder without a requirement to prove an intent
to kill. See Simmons v. State, 805 So.2d 452, 507 (Miss.2001). This
same argument has been rejected as it relates to depraved heart murder.
Grayson v. State, 806 So.2d 241, 252 (Miss.2001). Gray's
constitutional rights under the Eighth Amendment are safe-guarded
since the factors contained in Miss.Code Ann. § 99-19-101(7) require
that the jury find the requisite intent set forth in Enmund and Tison
before a death penalty verdict can be returned. In the present case,
the jury was properly instructed pursuant to Miss.Code Ann. §
99-19-101(7) and found all four of those factors. That is all that is
required by the decisions of the United States Supreme Court and the
federal constitution. Gray has simply failed to show the necessary
cause and actual prejudice required by Miss.Code Ann. § 99-39-21(1) to
overcome the procedural bar to consideration of this claim.
V. Form of the verdict
37. Gray next argues that the form of the
sentencing verdict was defective for failure to include a written
confirmation that the jury found the aggravating factors listed in
Miss.Code Ann. § 99-19-101 beyond a reasonable doubt. This claim could
have been raised at trial and on direct appeal, but was not. The
matter is now procedurally barred from consideration for the first
time on collateral review. Miss.Code Ann. § 99-39-21(1).
38. Without waiving the procedural bar, we
determine that the issue is without merit. In the sentencing phase of
capital trials, statutory aggravating circumstances must be
unanimously found beyond a reasonable doubt. White v. State, 532 So.2d
1207, 1219 (Miss.1988). In the present case, State's Jury Instruction
No. 2 specifically required that the jurors “must unanimously find,
beyond a reasonable doubt that one or more of the preceding
aggravating circumstances exists in this case to return the death
penalty.” There is an abundance of case law stating that it is
presumed that jurors follow the instructions of the court. Payne v.
State, 462 So.2d 902, 904 (Miss.1984) (internal citations omitted).
39. The jury in Gray's trial returned a written
verdict announcing that they had unanimously found the existence of
the aggravating circumstances. Once a defendant has been convicted in
the guilt phase of a capital trial, the presumption of innocence
disappears. Delo v. Lashley, 507 U.S. 272, 278, 113 S.Ct. 1222,
1225-26, 122 L.Ed.2d 620 (1993). It necessarily follows that Gray's
jury found the aggravating circumstances to exist beyond a reasonable
doubt even though those particular words were not written on the face
of the verdict. This issue is without merit.
VI. Cumulative Error
40. Next, Gray argues generically that the alleged
preceding errors, taken as a whole, deprived him of a fair trial. This
Court has previously held that “where there is ‘no reversible error’
in any part, ... there is no reversible error to the whole.” Byrom v.
State, 863 So.2d 836, 847 (Miss.2003) (quoting McFee v. State, 511
So.2d 130, 136 (Miss.1987)). Since Gray has not yet shown any actual
error by the trial court, there can be no cumulative effect and no
adverse impact upon his constitutional right to fair trial. This issue
is without merit.
VII. Cumulative Effect of the Failure to Make
41. Next, Gray contends there were five instances
of ineffective assistance of counsel whose cumulative effect was to
deprive him of a fundamentally fair trial. These alleged omissions
include: (1) failure to object to the State's use of jury strikes for
cause against African-Americans; (2) failure to object to the jury
instructions S-3, S-4 and S-6; (3) failure to object to the testimony
of Gray's cell mates; (4) failure to object to the prejudicial effect
of pretrial publicity; and, (5) failure to submit jury instructions to
weigh informant testimony with caution. Gray also argues that he was
denied his fundamental rights due to his trial counsel's failure to
cite authority concerning issues presented on direct appeal.
42. With regard to the first alleged instance of
nonfeasance concerning the State's use of jury strikes, this
particular claim has been previously discussed herein and found to be
without merit. Also, the second claim regarding jury instructions S-3
and S-4 was raised on direct appeal and found to be without merit.
Gray, 728 So.2d at 75-76. The record shows that trial counsel did in
fact object to instruction S-6 although on grounds different from what
Gray now asserts should have been the basis. Id. at 60-61. The
decision must be attributed to trial strategy by defense counsel.
43. The third claim concerning the testimony of
Gray's cell mates, Saunders and McCall, was raised and rejected on
direct appeal. Although this Court employed a procedural bar on direct
appeal, it nonetheless analyzed the merits of the claim and found them
lacking. Id. at 71-72. As for the fourth claim of failing to defuse
the potential adverse impact of pretrial publicity, defense counsel
sought a change of venue as discussed previously on direct appeal. As
analyzed earlier, this Court discussed the effect of local news
coverage within that context and found no irrefutable presumption that
Gray could not receive a fair trial. Id. at 67. This Court also
addressed Gray's fifth instance of alleged misconduct pertaining to
informant testimony on direct appeal and found the issue to be without
merit. Id. at 72.
44. Gray is now procedurally barred by res judicata
from relitigating the issues previously before this Court on direct
appeal through the present petition for post-conviction relief.
Miss.Code Ann. § 99-39-21(3). With no error to be found on the part of
trial counsel in these enumerated instances, there can be no
cumulative error to have deprived Gray of a fundamentally fair trial.
Byrom, 863 So.2d at 847. Thus, this issue is without merit.
VIII. Aggravating Factors Not Charged in the
45. Next, Gray argues that his death sentence must
be vacated because the aggravating circumstances of capital murder
found by the jury were not included in the indictment. Gray relies on
the rulings of the United States Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring
v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In
Apprendi and Ring, the Court held unconstitutional sentencing
procedures where a judge rather than a jury determined whether there
were aggravating circumstances sufficient to warrant imposition of the
46. Specifically, in Ring the Court addressed the
issue of whether the Arizona capital sentencing process as upheld in
Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511
(1990), was constitutional under Apprendi. In Walton, the Supreme
Court held that the Arizona capital sentencing process in which the
jury decided guilt and the judge made findings on aggravating factors
was constitutional. The Supreme Court in Ring overruled the Walton
[W]e overrule Walton to the extent that it allows a
sentencing judge, sitting without a jury, to find an aggravating
circumstance necessary for imposition of the death penalty. See 497
U.S., at 647-649, 110 S.Ct. 3047. Because Arizona's enumerated
aggravating factors operate as “the functional equivalent of an
element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120
S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.
Ring, 536 U.S. at 609, 122 S.Ct. 2428.
47. Despite Gray's argument, the Supreme Court's
holding in Ring is limited in scope. The Court in Ring specifically
stated that “Ring's claim is tightly delineated: He contends only that
the Sixth Amendment required jury findings on the aggravating
circumstances asserted against him.” Id. at 597 n. 4, 122 S.Ct. 2428.
Unlike Gray, Ring did not contend that his indictment was
constitutionally defective. Thus, the issue of whether the aggravating
circumstances must be included in the indictment is not controlled by
the holding in Ring. See Stevens v. State, 867 So.2d 219, 226-27
48. A defendant is not entitled to formal notice of
the aggravating circumstances to be employed by the prosecution and
that an indictment for capital murder puts a defendant on sufficient
notice that the statutory aggravating factors will be used against him.
Smith v. State, 729 So.2d 1191, 1224 (Miss.1998) (relying on Williams
v. State, 445 So.2d 798 (Miss.1984)). The Court in Williams said:
We believe that the fact that our capital murder
statute lists and defines to some degree the possible aggravating
circumstances surely refutes the appellant's contention that he had
inadequate notice. Anytime an individual is charged with murder, he is
put on notice that the death penalty may result. And, our death
penalty statute clearly states the only aggravating circumstances
which may be relied upon by the prosecution in seeking the ultimate
punishment. Williams, 445 So.2d at 804-05. In addition, this Court has
recently rejected similar arguments in Stevens v. State, 867 So.2d
219, 225-27 (Miss.2003). Thus, the issue of the omission of
aggravating circumstances in the indictment is without merit.
IX. Death Sentence Disproportionate to the
49. Finally, Gray asserts that his death penalty
sentence was disproportionately imposed. On direct appeal, this Court
conducted a proportionality review as required by the Eighth Amendment
and specifically found that Gray's death sentence was not
disproportionate. Gray, 728 So.2d at 78. Consequently, the issue is
now procedurally barred from collateral review. Miss.Code Ann. §
50. The Application for Leave to File a Petition
for Post-Conviction Relief in the Trial Court filed by Rodney Gray is
51. APPLICATION FOR LEAVE TO SEEK POST-CONVICTION
Gray v. Epps, 616 F.3d 436 (5th Cir.
Background: Following affirmance of his capital
murder conviction and death sentence, 728 So.2d 36, petitioner filed
federal habeas petition. The United States District Court for the
Southern District of Mississippi, Louis Guirola, Jr., J., 2008 WL
4793796, denied the petition, and petitioner appealed.
Holding: The Court of Appeals, Benavides, Circuit
Judge, held that defendant was not prejudiced by counsel's
presentation of mitigation evidence during sentencing phase of trial.
BENAVIDES, Circuit Judge:
Petitioner Rodney Gray (“Gray”), convicted of
capital murder in Mississippi and sentenced to death, appeals the
district court's denial of federal habeas relief. Gray contends that
his counsel rendered ineffective assistance by failing to investigate
and present mitigating evidence during the sentencing phase of trial.
Concluding that the state court's adjudication of Gray's claims was
not an unreasonable application of clearly established Federal law, we
A. Factual History
On August 15, 1994, in Newton County, Mississippi,
Grace Blackwell, the 79-year old murder victim, drove to her local
bank and proceeded to the drive-through window. Arlene McCree was
working as a bank teller, and Blackwell had been her customer since
1980. McCree thought Blackwell looked “terrible.” Usually, McCree and
Blackwell would engage in small talk; however, on this occasion,
Blackwell would not look at or converse with McCree. Instead,
Blackwell simply stated “I need twelve hundred dollars.” McCree had to
prompt Blackwell by asking her whether she wanted to cash a check or
use a withdrawal slip. In response, Blackwell threw a blank check into
the window tray. McCree could not see the backseat of the car because
there were clothes “hanging in a very unusual manner.” Concerned by
Blackwell's behavior, McCree asked Blackwell whether “something [was]
wrong or ... someone [was] in the car with her.” Blackwell did not
respond to the questions; instead, she attempted to mouth words to
McCree, who could not read Blackwell's lips. After McCree made out the
check for $1200, Blackwell signed it. Although McCree attempted to
stall the transaction, she subsequently placed the money in the window
tray, and Blackwell grabbed it. Blackwell then drove away saying “I'm
hurrying, I'm hurrying.” McCree did not think that Blackwell was
speaking to her. Believing Blackwell had been taken hostage, McCree
called the Sheriff's Office.
A deputy sheriff was dispatched to Blackwell's home
and found the front door open. Blackwell's car was not there and the
“telephone wires [were] disconnected.” Meanwhile, Harry Jones was
driving his car on Pine Bluff Road in Newton County and saw a brown
Chrysler, which he later identified at trial as Blackwell's car,
stopped in the road. He saw a man “wrestling with this lady.” Although
he could not identify the woman, he identified Gray as the driver of
Later that same day, Lane McDill was driving to
town on Newly RoadFN1 in Newton County and observed something lying
“just off the bridge on the right-hand side of the road.” McDill
stopped his vehicle and quickly discovered it was a deceased woman. He
then drove to town and notified the police that there was a body at
the bridge. As a result, law enforcement officers arrived at the scene,
and the ensuing investigation revealed that Blackwell had been killed
by a shotgun wound to the face. A forensic pathologist determined that
Blackwell suffered a “series of injuries,” “including the presence of
two shotgun wounds, as well as multiple scrapes of the skin, called
abrasions, and lacerations, a cut, and contusions.” The lethal shotgun
wound was a “contact shotgun wound with the muzzle of the shotgun
placed against the area of the mouth.” The second shotgun wound “is
consistent with having gone through an intermediate target scattering
and striking the decedent over the left arm, left chest, and left
cheek.” Blackwell's other injuries were consistent with either being
struck by or pushed out of a vehicle. The forensic investigation also
revealed that Blackwell had been raped and that the DNA analysis
indicated that Gray was the perpetrator.FN2
FN1. Newly Road was formerly known as “Everett
Store Road.” FN2. The “significance of [the] match is that there is a
probability that selecting someone other than ... someone unrelated to
[Gray] in the population, having the same profiles as that sample,
would be less than 1 in 446,000,000 in Black, Caucasian, and Hispanic
Additionally, the Newton County Sheriff's Office
interviewed Mildred Curry, who was Gray's girlfriend at the time.
Curry told them that Gray had called from jail and informed her that
there was money in her bathroom vent. A deputy sheriff searched her
residence and found $1,123 in the bathroom vent. The search also
uncovered the clothes and boots that Gray was wearing on the day of
B. Procedural History
In 1995, a Newton County, Mississippi grand jury
returned an indictment that charged Gray with committing intentional
murder while engaged in the commission of the crime of kidnapping and/or
rape in violation of Miss.Code Ann. § 97-3-19(2)(e). A jury convicted
Gray as charged. After a sentencing hearing, the jury unanimously
found, among other things, that there were “insufficient mitigating
circumstances to outweigh the aggravating circumstances” and that the
“Defendant should suffer death.” The trial court sentenced Gray to
death by lethal injection.
On direct appeal, the Mississippi Supreme Court
affirmed Gray's conviction and sentence. Gray v. State, 728 So.2d 36
(Miss.1998). Gray applied for state post-conviction relief, which the
Mississippi Supreme Court ultimately denied in a published opinion.
Gray v. State, 887 So.2d 158 (Miss.2004). Gray subsequently filed a
federal petition for writ of habeas corpus, which the district court
denied in a memorandum opinion and order. The district court granted
Gray a Certificate of Appealability (COA) with respect to the issue he
now raises on appeal.FN3
FN3. Pursuant to Fed. R.App. P. 31(a), Gray's
initial brief was due on December 9, 2009. Counsel obtained an
extension of time until January 8, 2010. Counsel requested another
extension of time, which was denied as moot when his brief was
ultimately filed on January 11. On March 11, 2010, counsel submitted a
motion for COA on additional issues as to which the district court
denied a COA. The Clerk responded with a letter, advising that no
action was being taken on the motion because it was filed out of time.
Counsel has not asked us to revisit the Clerk's notice that no action
would be taken. Even if the COA motion were considered timely filed,
it fails to make a substantial showing of the denial of a
constitutional right as to those issues. Slack v. McDaniel, 529 U.S.
473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, it is
II. STANDARD OF REVIEW
Gray filed his 28 U.S.C. § 2254 petition for a writ
of habeas corpus after the effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA). The petition, therefore, is
subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997). Pursuant to the federal habeas statute,
as amended by AEDPA, we defer to a state court's adjudication of a
petitioner's claims on the merits unless the state court's decision
was: (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States”; or (2) “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state
court's decision is deemed contrary to clearly established federal law
if it reaches a legal conclusion in direct conflict with a prior
decision of the Supreme Court or if it reaches a different conclusion
than the Supreme Court based on materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). A state court's decision constitutes an unreasonable
application of clearly established federal law if it is “objectively
unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to
section 2254(e)(1), state court findings of fact are presumed to be
correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence. See
Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).
III. INEFFECTIVE ASSISTANCE CLAIM
Gray argues that his Sixth Amendment right to
effective assistance of counsel was violated during the sentencing
phase of his trial. He contends that his trial counsel failed to
adequately investigate and present mitigating evidence with respect to
his family history and educational and mental health background at
sentencing. More specifically, the district court granted a COA as to
the claim of ineffective assistance based on counsel's failure to
request their own court-appointed psychiatrist to offer mitigating
evidence and counsel's failure to present the following:
(a) evidence of the poverty of Gray's family during
his childhood; (b) evidence of the lack of support for Gray in his
childhood, leading to low grades and other problems; (c) evidence of
the psychological factors and condition suffered by Gray at the time
of the alleged offense; (d) evidence of Gray's dull normal
intelligence, and (e) adequate character testimony when family members,
friends and neighbors were available to do so, when witnesses were
available and willing to offer helpful testimony.
To establish ineffective assistance of counsel,
Gray must show (1) defense counsel's performance was deficient and (2)
this deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We must find that trial counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed ... by the Sixth
Amendment.” Id. The Supreme Court instructs courts to look at the
“norms of practice as reflected in the American Bar Association and
the like” and to consider “all the circumstances” of a case. Id. at
688, 104 S.Ct. 2052. While “[j]udicial scrutiny of counsel's
performance must be highly deferential,” Gray can demonstrate
deficient performance if he shows “that counsel's representation fell
below an objective standard of reasonableness.” Id. at 688, 104 S.Ct.
2052. However, “[t]here is a ‘strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.’ ” United States v. Webster, 392 F.3d 787, 793 (5th
Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
Strickland's “prejudice” prong requires a reasonable probability that,
but for the deficient performance of his trial counsel, the outcome of
his capital murder trial would have been different. Strickland, 466
U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
A. Performance Prong
As previously set forth, Gray contends that trial
counsel rendered ineffective assistance by failing to investigate and
present substantial mitigating evidence during the sentencing phase of
his trial. In determining whether trial counsel's performance was
deficient, our “focus [is] on whether the investigation supporting
counsel's decision not to introduce [additional] mitigating evidence
of [a petitioner's] background was itself reasonable.” Wiggins v.
Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
Thus, we must consider the reasonableness of trial
counsel's investigation. The record reveals that, prior to trial,
Gray's counsel filed a motion for a psychiatric examination of Gray.
In the motion, counsel averred that they had reason to believe that
Gray was suffering from “some mental disease, injury or congenital
deficiency which could render [him] incapable of preparing a defense
and standing trial.” Counsel further averred that they had reason to
believe that Gray might be “incapable of intelligently participating
in the process of this cause.” The trial court granted the motion,
appointing Dr. Charlton Stanley, Ph.D, a forensic psychologist, and
Dr. Donald Guild, M.D., a psychiatrist, to examine Gray “to determine
his present ability to stand trial and assist his attorneys in his
defense; and further examine him to determine his ability to know the
difference between right and wrong and to understand the nature and
quality of his actions at the time of the alleged offense.”
After Gray was examined, Dr. Stanley issued a 9-page
report, summarizing the test results and conclusions. This report will
be more fully set forth in Section III. B., infra; however, the
following is a summation of the report. The report provided that Gray
had a full scale IQ score of 80, which is classified as low dull
normal. Dr. Stanley found that Gray was very cooperative during the
testing. Gray was found to be an “antisocial type,” with an
“undeveloped or underdeveloped conscience.” Gray is depressed, has
“very poor impulse control and has had some suicidal ideation.” Gray
appears to have Attention Deficit Disorder and mild dyslexia. Gray's
neuropsychological test result has a “pattern often associated with
some residual artifacts from drug use, although the attention deficit
and dyslexia present a similar picture.” Dr. Stanley concluded Gray
did not appear to have any “significant ‘brain damage’ of a type
usually referred to as Organic Brain Syndrome.” Gray was found to be
competent to assist his lawyer in preparing a defense. Gray did not
meet the test for insanity under the M'Naghten Rule. This report was
furnished to defense counsel, the prosecutor, and the trial court.
Gray contends that this report should have spurred
his counsel to conduct further investigation. Gray further contends
that his defense counsel's investigation is very similar to an
investigation that the Supreme Court found to constitute ineffective
assistance. See Wiggins, 539 U.S. at 523-34, 123 S.Ct. 2527. As in the
instant case, defense counsel arranged for a psychologist to examine
Wiggins. Id. at 523, 123 S.Ct. 2527. The psychologist concluded that
Wiggins “had an IQ of 79, had difficulty coping with demanding
situations, and exhibited features of a personality disorder.” Id.
Although we agree with Gray that his psychologist's
report was similar to Wiggins's report, we do not agree that the
psychological report is what the Supreme Court relied upon to conclude
that reasonable counsel would have conducted further investigation
into Wiggins's background. In Wiggins, the Supreme Court explained
that a presentence report and Social Services documents gave some
indication of Wiggins's horrible childhood. Id. at 523-25, 123 S.Ct.
2527. The Supreme Court found that the limited scope of counsel's
investigation was unreasonable in light of what counsel discovered in
those documents-not with respect to the contents of the psychologist's
report. Id. at 525, 123 S.Ct. 2527. The Social Services documents
revealed that Wiggins's “mother was a chronic alcoholic; Wiggins was
shuttled from foster home to foster home and displayed some emotional
difficulties while there; he had frequent, lengthy absences from
school; and, on at least one occasion, his mother left him and his
siblings alone for days without food.” Id. Based on this information,
reasonably competent counsel should “have realized that pursuing these
leads was necessary to making an informed choice among possible
defenses, particularly given the apparent absence of any aggravating
factors in petitioner's background.” Id.
Additionally, however, the Supreme Court also
recognized that it was standard practice in Maryland in 1989 to obtain
a social history report. Id. at 524, 123 S.Ct. 2527. Indeed, although
the Public Defender's office had funds available to pay a forensic
social worker, Wiggins's counsel failed to request such a report. Thus,
the Supreme Court found counsel's failure to adequately investigate
Wiggins's family and social history in pursuit of mitigating evidence
constituted inadequate performance. Id. at 534, 123 S.Ct. 2527.
In the instant case, Gray asserts that his
counsel's only contact with his family was one interview with Gray's
mother prior to trial. That assertion cannot be entirely correct
because Rosa Lee Gallapsy, Gray's mother's first cousin, testified at
Gray's sentencing hearing. Although Gray contends that his counsel did
an inadequate investigation into his family and social history,
without affidavits from defense counsel, we are not certain of the
full extent of counsel's investigation. Thus, we are at a disadvantage
in determining the reasonableness of the scope of the investigation,
which is the focus of the performance prong inquiry. Wiggins, 539 U.S.
at 522-23, 123 S.Ct. 2527. Further, without statements from counsel,
we can only speculate about the basis for their strategic decisions
made with respect to putting on their case in mitigation at sentencing.
The Supreme Court has explained that “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be the case, that course should be followed.”
Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Because we find it easier
to dispose of the instant claim based on lack of prejudice, we turn to
the prejudice inquiry.
B. Prejudice Prong
In the context of a claim that counsel failed to
discover and present mitigating evidence, to determine whether a
petitioner has shown the required prejudice, “we reweigh the evidence
in aggravation against the totality of available mitigating evidence.”
Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. Thus, we will first set
forth the mitigating evidence admitted at trial, the mitigating
evidence Gray has submitted during habeas proceedings, and the
aggravating evidence presented at trial. Then we will reweigh all the
mitigating evidence against the aggravating evidence to determine
whether Gray has shown that, had counsel presented all the available
mitigating evidence, there is a reasonable probability that a juror
would have found that the mitigating evidence outweighed the
1. Mitigating Evidence Presented at Sentencing
Rosa Lee Gallapsy, Gray's mother's first cousin,
testified at Gray's sentencing hearing. Gallapsy testified that she
had known Gray “all his life.” Gallapsy's son and Gray were friends
and Gray was “always down to [her] house, or we [were] over to his
house.” She further testified that she knew Gray well and had never
seen him behave violently. She described Gray as “respectable” and
“just a normal child.” In addition to Gallapsy, Gray's counsel called
Louise Bradley to testify at sentencing. She testified she had known
Gray for twelve years and that he was “in [her] house every day” and
her grandson went to school with Gray. She described Gray as “just a
real nice young man, because [she] didn't have any trouble whatsoever
out of him.”
Gray's counsel also called Roosevelt Jones, a local
minister, who testified that he owned a body shop business. Gray would
stop by the shop and talk to Jones. Gray “never gave [him] any trouble.”
Jones never observed Gray being violent but he “heard people talking.”
Gray's counsel next called Hattie Morgan, who lived next door to
Gray's parents. She testified that Gray had “been in the neighborhood
all his life.” Morgan had known Gray “all his life.” Morgan testified
Gray “was real nice and polite and never bothered nothing [she] had or
said anything to [them].” Gray was a “normal boy” and never violent.
Finally, Gray's counsel called Annie Tatum, Gray's
mother, to testify at sentencing. Tatum testified that her son was
“normal.” He was “not rebellious” or violent. Tatum and Gray's father
separated when Gray was six years old and divorced several years later.
Gray “couldn't really deal with it.” His parents' separation adversely
affected his behavior at school. Gray “would always do things that
would disturb the class, so that he could go to the office.” The
principal “would say [Gray] wasn't no problem” if he stayed in the
office. Tatum asked the jury to give her son “[l]ife imprisonment
rather than death.”
2. Mitigating Evidence Not Presented at Trial
a. Lay witnesses
In addition to the testimony offered in mitigation
at sentencing, Gray contends that counsel should have called the
following witnesses: his three sisters, Stephanie Wilson, Melissa
Jones, and Yolanda Wheaton; and Ola Jones, who had been a teacher at
Gray's school. “[T]o prevail on an ineffective assistance claim based
on counsel's failure to call a witness, the petitioner must name the
witness, demonstrate that the witness was available to testify and
would have done so, set out the content of the witness's proposed
testimony, and show that the testimony would have been favorable to a
particular defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th
First, we note that Gray did not provide an
affidavit from either Melissa Jones or Yolanda Wheaton indicating that
they would have testified at his trial. Instead, with respect to those
two uncalled witnesses, Gray has provided affidavits from Tomika
Harris, an investigator, and Deirdre Jackson, a paralegal, both of
whom were working for Gray's habeas counsel. Although these affidavits
contain hearsay statements that Gray's sisters made about Gray, there
is no statement from the sisters providing that they would have
testified at Gray's trial. This record, therefore, does not allow us
to conclude that these two sisters would have testified as witnesses
at Gray's trial. Day, 566 F.3d at 538; see also Lincecum v. Collins,
958 F.2d 1271, 1280 (5th Cir.1992) (explaining that this Court is
“loathe to accept the self-serving statement of habeas counsel as
evidence that other persons were willing and able to testify” in
mitigation at a defendant's trial).FN4
FN4. We note that these two sisters' hearsay
statements are similar to the statements of Gray's mother, Annie Tatum,
and third sister, Stephanie Wilson, which are discussed below.
Gray did submit an affidavit executed by Ola Jones.
In her affidavit, Jones does not state that she would have been
available to testify at Gray's trial. In any event, Jones does not
provide much mitigation evidence in her affidavit. She states that
Gray was enrolled in the special education program sometime “between
the grade of 4th and 8th.” Jones did not know Gray's IQ score but
stated that “he had to have had a learning disability or he would not
have been placed in the special education program.” Jones referred to
Gray as a “loner” and said she witnessed him “having tantrums in class
and in the hallway.”
Stephanie Wilson, Gray's older sister, did execute
an affidavit; however, she did not expressly state that she would have
testified on Gray's behalf at his trial. She did state that she “never
was interviewed by any of [Gray's] attorneys and I feel that they did
not do all that they could have done to represent him in court.”
Although we are not persuaded that this statement carries Gray's
burden of demonstrating that Wilson would have testified at his trial,
we will assume for purposes of this appeal that she would have done
so. Wilson's affidavit also provided that, as a child, Gray could not
take care of himself or do basic chores. He did not like school and
had few friends. Also, he had difficulty sleeping, exhibited impulsive
behavior, and could not maintain employment.
As set forth previously, Gray's mother, Annie Tatum,
did testify during sentencing at his trial. Nonetheless, Gray contends
that counsel should have questioned Tatum about his childhood
behavioral problems, his placement in the special education program, a
psychological evaluation of him, and his inability to attend to basic
chores or hold employment.
b. Mental Health Center Records
In addition to these affidavits, Gray submitted
records obtained from the Weems Community Mental Health Center. Gray
contends that counsel should have offered evidence from the records in
mitigation at sentencing. He also contends that, based on these
records, counsel should have moved for the appointment of a
psychiatric expert to help develop the evidence for presentation at
sentencing. These records show that when he was ten years old his
mother brought him to the center because he had been “[e]xhibiting
continual violent behavior at school and expressing anger
inappropriately.” FN5 Gray's mother reported no problems at home but
she had received complaints from the school about his behavior. She
also reported that he had no developmental problems and had a “normal
childhood.” Gray's mother also thought that his behavior at school may
be related to his parents' marital problems. The social worker
indicated that Gray appeared healthy and was “quite well-behaved
during [the] interview.” The mother was given behavioral management
techniques to use with Gray. Gray received both individual and family
counseling. After Gray's behavior improved and stabilized, he was
discharged from treatment. A year later, Gray was referred to the
center because he had been stealing from family members and had
behavioral problems. The listed diagnosis was “Conduct Disorder,
Socialized, Non-aggressive.” Gray was able to complete a restitution
plan, and his mother followed through with a behavior management plan.
FN5. Also contained in these records is a letter
from Gray's principal to his mother. It provides as follows: [Gray] is
suspended Thursday, December 2, 1982. [Gray] went into a classroom
without permission and hit a girl student in the face. I am suggesting
that you discuss [Gray's] continual violent behavior at school. He is
too loud and easily loses his temper. This usually results in a
physical outburst with [Gray] hitting, kicking or choking someone.
This type of behavior will not be tolerated. Please come to school
Friday with [Gray] for a conference. Several years later, sixteen-year
old Gray returned to the center after he shoplifted a jacket. Gray's
diagnosis was listed as “Conduct Disorder, Soc. Aggressive.” His
mother reported that Gray had been suspended from school twice and
that, during middle school, she had had several conferences due to his
“rebelling against the authority of his teachers.” The social worker
noted that Gray had a “blank affect and a hesitant manner.” The notes
also provide that Gray did not appear depressed and gave no indication
that he understood the “gravity of his situation. Memory is intact. He
is probably functioning in a borderline intellectual range.” Although
Gray was scheduled for counseling, his subsequent arrest for theft
precluded the treatment.
c. Psychologists' Reports
Gray also submitted to the district court an
affidavit executed by Daniel H. Grant, Ed.D, a psychologist who
reviewed Gray's psychological record, including Dr. Stanley's report,
school records, testimony from Gray's sentencing hearing, and the
affidavits that Gray submitted during habeas proceedings. In his
affidavit, Dr. Grant criticized Dr. Stanley's report (which had been
done prior to trial),FN6 stating that Dr. Stanley's “opinions were
inconsistent with [Dr. Stanley's] findings.” Dr. Grant concluded that
“the state failed to administer all of the tests necessary to
determine whether some sort of neurological condition either prevented
Mr. Gray from controlling an impulse or prevented him from fully
perceiving the wrongness of the acts for which he was convicted.”FN7
FN6. As previously set forth, Dr. Stanley's report
provided that Gray had an IQ score of 80. The report also provided
that Gray “sees the world in an overly personalized, peculiar and
idiosyncratic fashion. This suggests he will have difficulty
maintaining adequate social relationships for an extended period of
time.” Various anxiety and depression tests were administered and his
scores were consistent with marked depression. The report stated that
Gray had “suicidal ideation, poor self-concept, and much hostility
turned inward.” Dr. Stanley recommended that Gray be placed on suicide
precautions. Gray reported to his examiners that “Sexually, I like
Additionally, in light of a possible learning
disability and self-reported forgetfulness, a neuropsychological
battery was administered. Gray's memory functioning was somewhat lower
than his IQ, suggesting some genuine memory issues. Dr. Stanley
concluded that Gray likely does have an Attention Deficit Disorder.
Gray's low scores on the Stroop Color-Word test could indicate
dyslexia or some atrophy of the prefrontal areas caused by chronic
drug abuse. However, Gray's scores are “more often associated
behaviorally with poor impulse control than anything else.” Gray's
scores on the Wisconsin Card Sorting Test were “more typical of the
prefrontal dysfunction than anything else, and is often associated
with poor impulse control as well as Attention Deficit Disorder.” The
Luria-Nebraska Neuropsychological Battery score was used to examine
statistical indicators of brain dysfunction. Four of the five
indicators fell within the abnormal range, indicating “a fairly high
likelihood of brain dysfunction, unless confounding factors such as
drugs could account for the scores.” The errors Gray made on that
battery of tests were “quite consistent with a learning disability,
probably Attention Deficit Disorder and Hyperactivity.” However, Dr.
Stanley could not rule out any “artifacts associated with previous use
of drugs.” Dr. Stanley's “overall assessment of the neuropsychological
battery is that there are some abnormal scores, but they can be
accounted for by a learning disability which is probably chronic and
endogenous. There is no history of a clinically significant head
injury. Specifically, the neuropsychological tests are consistent with
Attention Deficit.” The Carlson Psychological Survey indicated that
Gray is “markedly antisocial,” and although he may appear cooperative,
“beneath this exists characteristics of impulsivity, intolerance,
hostility, aggression, and irrational behavior.” Dr. Stanley concluded
that Gray was “disturbed,” but noted that Gray's “motivation for
psychological or psychiatric treatment will be remarkably low.” He
further concluded that Gray needed a highly structured environment.
FN7. Dr. Grant's affidavit further provided that:
Those tests did not fully investigate whether Mr.
Gray had an impaired ability to conform his conduct to the
requirements of the law. They also did not take into consideration his
numerous emotional and psychological problems, his difficult childhood,
depression, suicidal tendencies, anxiety, learning disabilities, and
low intelligence as regards their effect upon his behavior. The state
expert, Dr. Stanley, performed tests primarily to determine competence
to stand trial, and not determine mitigating circumstances. A
neuropsychologist is needed in this case. Neuropsychological tests
such as the Halstaid-Reitan and Luria-Nebraska do not appear to have
been properly interpreted, regarding the existence of organic brain
dysfunction and how the deficits could be mitigating.
Relying on Dr. Grant's above-quoted affidavit, Gray
requested the district court to authorize funding for a forensic
psychologist with expertise in neuropsychological testing to examine
Gray and determine whether he was mentally retarded. The district
court granted the motion authorizing the funding, and Dr. Gerald
O'Brien, a clinical and forensic psychologist, was chosen as the
expert. Dr. O'Brien interviewed Gray and administered psychological
tests. In the interview, Gray reported to Dr. O'Brien that he slept
too much but denied any suicidal thoughts. He reported no family
history of psychological or substance abuse problems. Gray stated that
he had taken special education classes in fourth grade and then
“tested out.” He admitted to disruptive behavior in class and that he
dropped out of school in the ninth grade. Gray stated that when he was
16 years old he was sent to “Youth Court” for burglary and shoplifting.
Dr. O'Brien concluded that Gray's “current tested
Full Scale IQ is likely to be in the 86-93 range.”FN8 On the screening
test for the Luria-Nebraska Neuropsychological Battery, Gray had an
error score of 5, “well within the cutoff score (8), suggesting that
if the entire neuropsychological test battery were administered he
would be unlikely to show significant specific or generalized
neuropsychological deficits.” Gray achieved a score of 14 (out of 21)
on the 21 Word Test. That is considered a “normal result.” With
respect to the Personality Assessment Screener, Gray's “overall score
was within the normal range, suggesting low potential for significant
emotional or behavioral problems.” Dr. O'Brien also administered the
Personality Assessment Inventory for comparative purposes and Gray
produced a “generally valid profile. The clinical results included a
significant elevation on one scale only, suggesting suspiciousness,
hostility, and hypervigilance in his relations with others.” However,
Dr. O'Brien attributed the elevated scale to Gray's current
circumstances on death row-not significant psychopathology. Further,
Dr. O'Brien concluded that Gray “is currently functioning in the low
average range intellectually, even allowing for lower Flynn-corrected
test scores from 1995, and second-hand reports of past school
performance problems.... There are also no indications of significant
emotional or psychological difficulties that cannot be explained by
his current environment and legal situation.”FN9 Dr. O'Brien concluded
that Gray's current intellectual functioning falls in the low average
range, but “he may have functioned at a slightly lower level” prior to
incarceration. Gray is not considered mentally retarded. Various “test
results and clinical observations do not indicate significant
emotional or psychological difficulties, although there are
suggestions of current suspiciousness and hostility in his dealings
with other people.”
FN8. With respect to the WAIS-III test, Gray scored
a Verbal IQ of 89, Performance IQ of 90, for a Full Scale of 89. These
scores placed his “overall intellectual functioning in the low average
range.” Gray scored within the average range on the SHIPLEY test,
which translated to an estimated (WAIS-R) IQ of 96. With respect to
the WRAT4 test, his achievement scores were: reading (90) at grade
level 10.2; and sentence comprehension (87) at grade level 9.9. FN9.
The “Flynn Effect” refers to the theory that average IQ scores in
populations artificially increase over time. In re Salazar, 443 F.3d
430, 433 (5th Cir.2006). However, the Flynn Effect “has not been
accepted in this Circuit as scientifically valid.” In re Mathis, 483
F.3d 395, 398 n. 1 (5th Cir.2007). The Mississippi Supreme Court has
not addressed the scientific validity of the Flynn Effect.
3. Aggravating Evidence at Trial
At the beginning of the sentencing phase of Gray's
trial, the prosecutor moved “to allow the State to bring forward all
evidence that was produced at the guilt phase of the trial and to
incorporate that evidence in the sentencing phase, to include all
witness testimony and all exhibits that were introduced through these
witnesses.” The trial court granted the motion. The aggravating
evidence offered during the guilt phase of trial included evidence
that Gray kidnapped 79-year old Grace Blackwell from her home, forced
her to drive to her bank to withdraw $1200, raped her, shot her twice
with a shotgun, and ran over her with her vehicle. Blackwell's car had
blood “all over the passenger side ... both inside and outside.” Gray,
728 So.2d at 43. The front of the car had been damaged and “[t]here
was blood and tissue on the front, across the hood, windshield, and
down the passenger side of the vehicle.” Id. Blackwell's body was
found lying beside the road. As the district court noted, the injuries
to Blackwell's body were horrific. “She had lacerations on her leg and
facial area, severe wounds to her mouth and back side of her head,
along with a gash to the back of her head.” Gray, 728 So.2d at 43.
“The lethal injury was a contact shotgun wound to the mouth.” Id. The
non-lethal shotgun injury was to the left side of her face, chest and
left arm. Id. “There were multiple small entrance wounds indicating
secondary missile pattern injury.” Id. On the right side of her body
she had “large scrapes of skin as if she slid on a hard object.” Id.
at 44. “There was also an abrasion or scrape of one inch to the labia
majora or vaginal vault, which indicated forceful sexual penetration.”
Id. There was testimony that “[i]t would have taken a period of time
to die, as the bleeding was from secondary vessels.” Id.
During the sentencing phase, the prosecutor called
three witnesses, the victim's only child, Gerry Martin, and the
victim's two granddaughters, Crystal Moulds and Amber Arnold. The
witnesses were all very close to the victim. They testified that
Blackwell had lived with her daughter and helped her raise her
children. They testified that Blackwell was a devoted mother,
grandmother, and great-grandmother who helped them in anyway she could.
They testified about the pain of losing her and how it had devastated
the family. They were deeply saddened that her great-grandchildren
would grow up without her.
4. Reweighing of Evidence
As previously set forth, in determining whether
Gray has shown prejudice, “we reweigh the evidence in aggravation
against the totality of available mitigating evidence.” Wiggins, 539
U.S. at 534, 123 S.Ct. 2527. In view of the aggravating evidence with
respect to the murder, kidnapping, and rape, we are not persuaded that,
had defense counsel presented the currently proffered evidence in
mitigation, there is a reasonable probability of a different
outcome.FN10 We certainly are not persuaded that the Mississippi's
Supreme Court's conclusion that the new evidence “would have had
little if any persuasive effect on the jury in mitigation” is
unreasonable. Gray, 887 So.2d at 168.
FN10. In other words, even if we were reviewing
this claim de novo, we would find no Strickland prejudice.
The new evidence portrays Gray as either dull
normal or low average intellectual functioning. He behaved
inappropriately and sometimes violently at school.FN11 Gray was in
special education for an unspecified period of time before he “tested
out.” He quit school after ninth grade. He shoplifted and stole from
his family. He was unable to accomplish basic chores and had learning
disabilities such as Attention Deficit Disorder and mild dyslexia. At
the time of trial, he was depressed and having suicidal thoughts. Gray
is “markedly antisocial” and “disturbed,” with an “undeveloped or
underdeveloped conscience.” Although Gray points to Dr. Grant's
affidavit criticizing Dr. Stanley's report, Gray fails to even
acknowledge Dr. O'Brien's report which concludes that Gray was
unlikely to show significant specific or generalized
neuropsychological deficits. Dr. O'Brien found that Gray had low
potential for significant emotional or behavioral problems. Unlike the
expert opinions relied upon by Gray, Dr. O'Brien had actually
interviewed Gray and administered the tests. Although Gray contends
that an investigation would have revealed severe psychological or
neurological problems, Dr. O'Brien's conclusions refute that
contention. Cf. Blanton v. Quarterman, 543 F.3d 230, 239 (5th
Cir.2008) (explaining that petitioner's claim of organic brain damage
was “persuasively rebutted” by the state's psychiatrist).FN12
FN11. At trial, his mother testified that her
divorce from his father was difficult for Gray. She testified that it
affected his behavior at school in that he “would always do things
that would disturb the class, so that he could go to the office.”
However, she did not testify as to his violent behavior.
FN12. As previously noted, Gray also contends that
counsel's failure to request a court-appointed expert to assist in
presenting the case in mitigation constitutes ineffective assistance.
However, in the proceedings below, the district court authorized funds
to have an expert conduct further neuropsychological testing. Gray's
counsel had Dr. O'Brien conduct the tests, and his conclusions
demonstrate that Gray cannot show prejudice based on counsel's failure
to request a court-appointed expert.
Gray's mother's affidavit provided that Gray could
not maintain employment or accomplish basic chores. He had difficulty
dealing with his parents' divorce and behaved violently at school on
occasion. This evidence in mitigation pales in comparison to the type
of powerful mitigating evidence that the Supreme Court has opined
would have a reasonable probability of causing a juror to find that
the mitigation evidence outweighed the aggravating evidence. Wiggins,
539 U.S. at 535, 123 S.Ct. 2527; Williams, 529 U.S. at 395, 120 S.Ct.
1495; see also Blanton, 543 F.3d at 239 (explaining that “the
mitigating evidence presented by [petitioner] during the state habeas
proceeding was not nearly as strong as that submitted by petitioners
in recent cases in which the Supreme Court has found prejudice”). For
example, “Wiggins experienced severe privation and abuse in the first
six years of his life while in the custody of his alcoholic, absentee
mother. He suffered physical torment, sexual molestation, and repeated
rape during his subsequent years in foster care.” Wiggins, 539 U.S. at
535, 123 S.Ct. 2527. Wiggins was at times homeless and had “diminished
mental capacities.” Id. The Supreme Court explained that Wiggins had
the “kind of troubled history” it has “declared relevant to assessing
a defendant's moral culpability.” Id. Concluding that the available
mitigating evidence “ ‘might well have influenced the jury's appraisal’
of Wiggins' moral culpability,” the Supreme Court held that he had
shown Strickland prejudice. Id. at 538, 123 S.Ct. 2527 (quoting
Williams, 529 U.S. at 398, 120 S.Ct. 1495).
Similarly, in Williams, the Supreme Court described
Williams' childhood as “nightmarish.” 529 U.S. at 395, 120 S.Ct. 1495.
“Williams' parents had been imprisoned for the criminal neglect of
Williams and his siblings.” Id. “Williams had been severely and
repeatedly beaten by his father [and] had been committed to the
custody of the social services bureau for two years during his parents'
incarceration (including one stint in an abusive foster home).” Id.
Additionally, “Williams was borderline mentally retarded and did not
advance beyond sixth grade in school.” Id. (internal quotation marks
and citation omitted). There were prison records available
demonstrating that Williams had assisted in cracking a drug ring in
prison and returned a guard's missing wallet. Id. at 396, 120 S.Ct.
1495. In light of all the available mitigating evidence, the Supreme
Court concluded that Williams had shown a reasonable probability of a
different outcome at sentencing. Id. at 399, 120 S.Ct. 1495.
In the instant case, there is no allegation of
abuse. Indeed, in the proffered mental health records, Gray's mother
describes his childhood as “normal.” Moreover, Gray cannot show
prejudice because much of the new evidence is “double edged” in that
it could also be interpreted as aggravating. See Dowthitt v. Johnson,
230 F.3d 733, 745 (5th Cir.2000) (holding that petitioner could not
demonstrate Strickland prejudice because the evidence was “double
edged in nature”). For instance, Dr. Stanley described Gray as
“markedly antisocial” and “disturbed.” The records list Gray's
diagnosis as “Conduct Disorder, Soc. Aggressive” and provide evidence
that he hit a girl in the face in the classroom. We are not persuaded
that Gray's new evidence has a reasonable probability of influencing
the jury's decision regarding his moral culpability.
We recognize that reweighing the evidence is a
difficult inquiry. See Tucker v. Johnson, 242 F.3d 617, 623 (5th
Cir.2001). Nonetheless, we are not persuaded that the Mississippi
Supreme Court's conclusion that the newly proffered evidence does not
demonstrate prejudice is unreasonable.
Accordingly, for the above reasons, the district
court's judgment is AFFIRMED.