Summary:

Glenda and Benny Joe Stevens divorced when their daughter, Erica, was three years old. Glenda later married Wesley Reid, and they lived together with Erica and Glenda's son, Dylan Lee. Benny Joe Stevens married Lauren Stevens in 1993.

At trial, Lauren Stevens testified that her husband was expecting a workers' compensation settlement from a back injury claim and that he anticipated he would have to pay back child support from the settlement check. On the day of the murders, she saw her husband with his gun belt laid out on the bed and putting shotgun shells in the gun belt. Lauren remembered seeing his .357 handgun. Stevens then took his guns and left the home in his truck.

Glenda (38), Wesley (38), Dylan (11), his friend Heath (10) and Erica were all at their trailer when Stevens pulled up in his truck. Wesley opened the sliding glass back door and called, "Benny Joe, can I help you?"

Erica then heard a gunshot and heard Wesley scream. Erica tried to rescue her brother Dylan and his frind, but Stevens shot her in the back. She then hid in the bath and watched helplessly as her mother was shot by Stevens. She then heard him say, "Bitch, I told you that I'd kill you one of these days." Erica climbed through a window and heard more gunshots while she was running away from the trailer. Erica went to a neighbor's house for help and collapsed at the door. Erica told the neighbors that her father had shot her mother, stepfather, brother and friend. Stevens returned to his home where his wife inquired, "What did you do?" to which Stevens replied, "I just killed a family."

Citations:

Stevens v. State, 806 So.2d 1031 (Miss. 2001). (Direct Appeal)
Stevens v. State, 867 So.2d 219 (Miss. 2003). (PCR)
Stevens v. Epps, 618 F.3d 489 (Miss. 2010). (Habeas)

Final/Special Meal:

Four whole catfish (fried), 8 hushpuppies, French fries, coleslaw, hickory smoked barbeque beef ribs (wet with sauce also on the side), hot peach cobbler, ½ gallon of Blue Bell homemade vanilla ice cream, two 20 oz. Cokes, ketchup, salt and pepper, whole red tomato (sliced).

Final Words:

“I am sorry . . .Lord knows I am sorry. What I’ve taken from God and you, I can’t replace. I’m sorry." (Asking the witnesses to read their Bibles) "Don’t let me be a stumbling block to your salvation. I’m not worth it. That’s it.”

ClarkProsecutor.org

State executes man convicted of killing 4

By Jack Elliott Jr. - SunHerald.com

May 10, 2011

PARCHMAN -- A man who shot his ex-wife, her husband and two boys to death more than a decade ago was executed Tuesday in Mississippi, asking for forgiveness with his last statement. Officials at the state penitentiary at Parchman declared Benny Joe Stevens dead at 6:22 p.m. “Forgive me … what I did was a terrible thing. There’s no forgiveness for what I did,” said a bearded Stevens, 52, who was dressed in a red prison jumpsuit and white sneakers. He was wearing glasses.

He was sentenced to die in 1999 for the killings at a mobile home in the Foxworth community of rural Marion County. Stevens gunned down his former wife, Glenda Lee Reid, 38; her husband, Wesley Lee Reid, 38; the Reids’ 11-year-old son, Dylan; and Dylan’s friend, 10-year-old Heath Pounds.

Stevens’ execution was the first in Mississippi using pentobarbital due to a nationwide shortage of a different drug it has used in the past. Among witnesses were his father and brother who visited him earlier in the day. Stevens also wrote a letter to his daughter, Erica, who survived the attack and who was among the witnesses with seven other members of the victims’ families.

Corrections Commissioner Chris Epps said Stevens expressed remorse but told corrections officials that he doesn’t remember the 1998 killings. “He feels he has gotten right with God and repented,” Epps told reporters in an earlier briefing. For the families, Epps said, “The cause of justice has been championed.”

Stevens turned his head to look in the direction of the victims’ families as he spoke. “I am sorry … Lord knows I am sorry,” Stevens said, asking the witnesses to read their Bibles. “Don’t let me be a stumbling block to your salvation. I’m not worth it,” he said, closing with: “That’s it.”

Kathy Pounds, the mother of Heath Pounds, said she hoped her family could now remember the happy times with her son. “For us today is not about Benny Joe. It is a bout Heath. We love you and miss you every day. Now you are finally free, so fly high Heath,” she said.

The family of the Reids said in a statement that while the execution “does not bring closure to our pain it is a step in our healing process.”

Both the U.S. Supreme Court and Mississippi Gov. Haley Barbour turned down requests to stop the execution. Two more executions are scheduled this month: Rodney Gray’s on May 17 and Robert Simon Jr.’s on May 24.

Epps said corrections officials had viewed executions in Oklahoma and Ohio where the new drug is in use and said there were no problems Tuesday. “It worked out just as we were told,” Epps said. Mississippi has used a three-drug mixture for its lethal injections in the past, but one of those chemicals, an anesthetic called sodium thiopental, is in short supply. Sodium thiopental is one of the most common execution drugs used in the U.S., but the nationwide shortage has forced states to consider other options.

Mississippi Executes Man Convicted of Killing Four People

Wtok.com

May 11, 2011

The state of Mississippi has executed a 52-year-old man convicted of killing four people, including two children, in 1999. Officials at the state penitentiary at Parchman said Tuesday that inmate Benny Joe Stevens was declared dead at 6:22 p.m.

He was sentenced to death in the quadruple killings at a mobile home in the Foxworth community of rural Marion County. Those killed were Stevens' former wife, 38-year-old Glenda Lee Reid; her 38-year-old husband, Wesley Lee Reid; the Reids' 11-year-old son, Dylan; and Dylan's friend, 10-year-old Heath Pounds.

Corrections Commissioner Chris Epps said Stevens' father and brother visited the inmate Tuesday. Stevens also wrote a letter to his daughter, Erica, who survived the attack, and was present for the execution Tuesday night. Epps says Stevens expressed remorse but told corrections officials that he doesn't remember the killings.

Mississippi intends to execute two others in the next two weeks: Robert Simona, Jr., May 17, and Rodney Gray May 24.

Mississippi executes convicted killer Benny Joe Stevens

By Elizabeth Crisp - ClarionLedger.com

May 10, 2011

PARCHMAN — The state of Mississippi executed death row inmate Benny Joe Stevens, 52, at 6:22 p.m. today. Stevens was convicted in 1999 of killing his ex-wife, Glenda Reid; her husband, Wesley Lee Reid; her 11-year-old son, Dylan Lee; and Lee's 10-year-old friend Heath Pounds.

He used his final moments to ask his victims’ family members for forgiveness. “What I’ve taken from God and you, I can’t replace,” he said. “I’m sorry.”

Prior to his execution, Mississippi Department of Corrections Commissioner Chris Epps said Stevens expressed remorse over the crime, particularly the deaths of the two children. “He said, ‘None of them deserved what I did,’” Epps recalled.

The U.S. Supreme Court and Gov. Haley Barbour denied Stevens’ last-ditch pleas for clemency. Still, Epps said he remained talkative throughout the day. Stevens, who had no infractions during his time behind bars, showered and took a sedative — Valium — before being led to the execution room.

For his last meal, Stevens had fried catfish, hushpuppies, French fries, coleslaw, barbeque beef ribs, peach cobbler with vanilla ice cream, two 20-ounce Cokes and a sliced, whole red tomato.

'I'm sorry,' killer says before execution; Victim's mother: Nothing can fix hole in our hearts

By Elizabeth Crisp - ClarionLedger.com

May. 10, 2011

PARCHMAN — Kathy Pounds has spent more than 12 years grieving the murder of her 10-year-old son, Heath. "Heath was our ray of sunshine," she said. "Nothing will ever fix the hole left in our hearts by his death."

He was spending the night with a friend on Oct. 18, 1998. It just happened to be the night Benny Joe Stevens went to the Foxworth home of his ex-wife, Glenda Lee Reid, and shot everyone, including Heath and his 11-year-old friend Dylan Lee, Reid's son. "Every time we have managed to move past it, another court date puts Benny Joe back on the front page," Pounds said. "We are drawn back into all of our grief."

On Tuesday, Pounds appeared relieved that there will be no more court dates. Mississippi executed Stevens, 52, at 6:22 p.m. "For us, today is not about Benny Joe," she said after witnessing the execution. "It is about Heath ... We are celebrating his life and memory, not the destruction of another mother's child."

Stevens was convicted in 1999 of killing Heath, Dylan Lee, Reid and her husband, Wesley Reid, in a dispute over child support payments.

He also shot his then-16-year-old daughter, Erica Stevens, who survived the attack. Now 28, she witnessed her father's execution along with several other relatives, including Stevens' other daughter, Angela Toney. Neither spoke to the media after the execution.

Stevens used his final moments to ask for forgiveness but acknowledged that his victims' families likely would not forgive him. "What I've taken from God and you, I can't replace," he said. "I'm sorry."

His brother, Ricky, and father, Ben, also witnessed the execution. "He went out with dignity," Ricky Stevens said. "I just hope that, now that it's over, everyone can move on." Prior to his execution, Stevens expressed remorse for the killings, particularly the deaths of the two children, Mississippi Department of Corrections Commissioner Chris Epps said. "He said, 'None of them deserved what I did,'" Epps recalled. He wrote daughter Erica Stevens a letter.

Killer's brother: Daughter wasn't intentionally shot; Man who killed four, injured teen set for execution tonight

By Elizabeth Crisp - ClarionLedger

May. 9, 2011

Condemned killer Benny Joe Stevens wants it known he did not mean to shoot his teenage daughter when he killed four people, including two children, at his ex-wife's rural Marion County home in 1998. "He shot (his daughter) through the wall but he didn't have any idea she was there," his brother, Ricky Stevens, told The Clarion-Ledger on Monday.

Benny Joe Stevens, 52, is scheduled to be executed today for the deaths of his ex-wife, Glenda Reid; her husband, Wesley Lee Reid; her 11-year-old son, Dylan Lee; and Lee's 10-year-old friend Heath Pounds in a dispute over child support.

But his brother said he wants to set the record straight about injuring his daughter, Erica, who survived the attack and went on to become a witness for the prosecution during her father's trial. "When (authorities) told him he had shot Erica, it blew his mind," Ricky Stevens said.

The state Supreme Court on Monday denied a request for a stay of execution. Barring a last-minute reprieve from the U.S. Supreme Court or Gov. Haley Barbour, Stevens is scheduled to be put to death by lethal injection shortly after 6 p.m. at the State Penitentiary at Parchman. At least eight of the victims' relatives are scheduled to witness the execution, Mississippi Department of Corrections Commissioner Chris Epps said.

Some of Stevens' family members also will be at Parchman, his brother said. "We're going to have a lot of family members witnessing this one," Epps said. "It's going to be a little tight." Two rehearsals have been completed, and another is scheduled for this morning. "I don't foresee any problems," Epps said. Parchman went on precautionary lockdown, as it does for all executions, Monday evening, and Stevens has been moved to a holding cell adjacent to the execution room. Stevens, one of 59 inmates on death row in Mississippi, has had no prison violations during his 11 years behind bars, Epps said.

Glenda Reid's sister, Kay McDaniel, said the families have waited a long time for the execution - something she sees as "justice." "He tore up so many families when he killed them," McDaniel said. "I think Mississippi ought to set up an express lane like Texas."

Stevens stands to become the first inmate in Mississippi executed under a new lethal injection cocktail of pentobarbital, Pavulon and potassium chloride. Mississippi previously used sodium thiopental - one of the most common execution drugs in the U.S.- but a nationwide shortage has forced states to consider other options such as pentobarbital. The drug switch has been the point of at least one appeal on Stevens' behalf, but a Circuit Court has denied that the move violates the law. The state Supreme Court on Thursday refused to consider an appeal of the judge's ruling. "We don't expect any problems with that," Epps said of the switch. The new drug costs $400 more per execution, bringing the total to about $11,400 each.

Two more executions are scheduled for this month: Rodney Gray's on May 17 and Robert Simon Jr.'s on May 24.

Mississippi Department of Corrections

Death Row Inmate Benny Joe Stevens
State Death Row Inmate Benny Joe Stevens, MDOC #K0655
White Male
DOB – 05/12/1958

Factual Background of the Case

Benny Joe Stevens was charged with the shooting deaths of his ex-wife, her husband and two children and the aggravated assault of his daughter. Stevens was convicted of four counts of capital murder on December 4, 1999, and sentenced to death on all four counts. He was also convicted of aggravated assault and received a 20 year sentence.

The murders of Wesley Reid, Glenda Reid, Heath Pounds and Dylan Lee, and the aggravated assault of Erica Stevens, took place on Sunday, October 18, 1998, in Marion County. Erica is the daughter of Benny Joe Stevens. She lived with her mother, Glenda Reid, with her stepfather, Wesley Reid, and her brother, Dylan, in Foxworth, Mississippi.

Glenda and Benny Joe Stevens divorced when Erica was three years old. Benny Joe Stevens subsequently married Lauren Stevens in 1993. At trial, Lauren Stevens testified that her husband was expecting a workers' compensation settlement from a back injury claim and that he anticipated he would have to pay back child support from the settlement check. At the time of the murders, Stevens was unemployed and so was his wife. On Sunday, October 18, 1998, Lauren entered Stevens’ bedroom and saw her husband with his gun belt laid out on the bed and putting shotgun shells in the gun belt. Lauren remembered seeing his .357 handgun. Stevens then took his guns and left the home in his truck.

On Sunday, October 18, 1998, Erica, Heath, Wesley, Glenda and Dylan were all at their trailer and had finished eating supper when Erica saw Stevens park his truck beside Wesley's truck in the backyard. Erica saw Stevens get out of his truck. According to Erica, Wesley opened the sliding glass back door wide enough to stick his head out the door and called, "Benny Joe, can I help you?"

Erica then heard a gunshot and Wesley scream. Erica tried to rescue her brother and his friend but Stevens shot her in the back. She then hid in the trailer's master bath and watched helplessly as her mother was shot by Stevens. She then heard Benny Joe say, "[B]itch, I told you that I'd kill you one of these days."

Erica climbed through a small window in the bathroom where she had been hiding and heard more gunshots while she was running away from the trailer. Erica went to a neighbor's house for help and collapsed at the door. Erica told the neighbors that her father had shot her mother, stepfather, brother and friend. Stevens returned to his home where his wife inquired, "[W]hat did you do?" to which Stevens replied, "I just killed a family."

On January 12, 1999, Benny Joe Stevens was indicted in Marion County on four counts of capital murder and one count of aggravated assault. The indictment charged that on October 18, 1998, Stevens murdered the four people while in the course of a burglary and felonious child abuse. The indictment also charged in that Stevens committed aggravated assault of Erica Stevens. On March 31, 1999, the trial court granted Stevens' motion for a change of venue from Marion County to Madison County. The jury selection began on November 29, 1999.

On December 4, 1999, the jury returned guilty verdicts on all five counts: four counts of capital murder and one count of aggravated assault. The jury sentenced Stevens on December 4, 1999, and imposed the death penalty on counts I - IV, relating to Wesley, Glenda, Heath and Dylan. The trial court further sentenced Stevens to twenty years in prison on the aggravated assault conviction, relating to Erica.

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 para-lytic 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. mili-tary 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 status.
1200 Hours Day of Execution Designated media center at institution opens.
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 shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to execution room.
1800 Hours Day of Execution Witnesses are escorted into observation room.
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 closed.

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 executions. 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 chamber. 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 execution in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who committed 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.

Benny Joe Stevens

ProDeathPenalty.com

The murders of Wesley Reid, Glenda Reid, Heath Pounds and Dylan Lee, as well as the aggravated assault of Erica Stevens, took place on Sunday, October 18, 1998, in Marion County. Erica is the daughter of Benny Joe Stevens, and she lived with her mother, Glenda Reid, with her stepfather, Wesley Reid, and her brother, Dylan, in a trailer home in Marion County located on Shiloh Firetower Road in Foxworth, Mississippi.

Glenda and Stevens had divorced when Erica was three years old. Benny Joe Stevens subsequently married Lauren Stevens in 1993 and thereafter gained custody of his daughters, Erica and Angela, in 1996. However, in August of 1998, Glenda regained custody of Erica.

At trial, Lauren Stevens testified that her husband was expecting a workers' compensation settlement from a back injury claim and that he anticipated he would have to pay back child support from the settlement check. At the time of the murders, Stevens was unemployed and so was his wife. On Sunday, October 18, 1998, Stevens and his brother, Ricky Stevens, had gone in Stevens's Ford pick-up truck to play pool. Thereafter, Lauren received a telephone call from Ricky on a cell phone that afternoon to the effect that Stevens had driven into a ditch and wrecked the truck. Stevens appeared drunk to Lauren when she arrived to assist them. Stevens's truck was pulled out of the ditch, and Stevens went back home.

Later that evening Lauren entered Stevens's bedroom, she saw her husband with his gun belt laid out on the bed and putting shotgun shells in the gun belt. Lauren also remembered seeing his .357 handgun. Stevens then took his guns and left the home in his truck.

On Sunday, October 18, 1998, Erica, Dylan, Wesley, Glenda and Dylan's friend Heath, who was spending the night, were all at the trailer and had finished eating supper when Erica saw Stevens park his truck beside Wesley's truck in the backyard. No one was with Stevens. Erica saw Stevens get out of his truck. According to Erica, Wesley opened the sliding glass back door wide enough to stick his head out the door and called, "Benny Joe, Can I help you?" Erica then heard a gunshot and Wesley scream, "Shit, he shot me."

Erica heard Wesley as he called out for help and asked God for help. Erica tried to rescue her brother and his friend but Stevens shot her in the back. She then hid in the trailer's master bath and watched helplessly as her mother was shot by Stevens. She then heard Benny Joe say, "Bi+ch, I told you that I'd kill you one of these days." Erica climbed through a small window in the bathroom where she had been hiding and heard more gunshots while she was running away from the trailer. Erica went to a neighbor's house for help and collapsed at the door. Erica told the neighbors that her father had shot her mother, stepfather, brother and friend. Wesley was shot four times with two different guns. Glenda pleaded for her children's safety before being shot in the head. The two young boys, Heath and Dylan, were both brutally murdered. Heath, age twelve, was shot twice, the first shot to the face with the second fatal shot to the chest severing his spine. Dylan was age eleven when he died.

Stevens returned to his home where his wife inquired, "What did you do?", to which Stevens replied, "I just killed a family."

Stevens v. State, 806 So.2d 1031 (Miss. 2001). (Direct Appeal)

Defendant was convicted in the Circuit Court, Marion County, Michael R. Eubanks, J., of four counts of capital murder and one count of aggravated assault, and was sentenced to death on each capital count and to 20 years' imprisonment for assault. Defendant appealed. The Supreme Court, Easley, J., held that: (1) all charges were properly included in multi-count indictment; (2) felony child abuse resulting in death of victims could serve as statutory basis for charges of capital murder; (3) capital predicate felony of burglary did not merge into murders; (4) state's proffered race-neutral reasons for exercising peremptory strike against black prospective juror were adequate; (5) spousal testimonial and communications privileges did not bar defendant's wife from testifying against defendant; (6) expert testimony relevant to a diminished capacity defense was inadmissible during guilt phase but admissible in mitigation at sentencing phase; (7) capital sentencing statute was not unconstitutionally vague as applied to defendant; (8) defendant was not entitled to individual sequestered voir dire of jury panelists; (9) prosecutor's isolated reference during opening statement in sentencing phase to his years of experience did not prejudice defendant; (10) evidence was sufficient to support finding of “especially heinous, atrocious or cruel” aggravating circumstance; (11) defendant was not denied opportunity to rehabilitate prospective jurors who expressed opposition to death penalty; and (12) death sentence was neither excessive nor disproportionate. Affirmed. Pittman, C.J., concurred in result only.

EN BANC; STATEMENT OF THE CASE
EASLEY, J., for the Court:

1. On January 12, 1999, Benny Joe Stevens (“Stevens”) was indicted in Marion County on four counts of capital murder and one count of aggravated assault. The indictment charged that on October 18, 1998, Stevens murdered the four people while in the course of a burglary and felonious child abuse: Count I, Wesley Reed a/k/a Wesley Reid (“Wesley”); Count II, Glenda Reed a/k/a Glynda Reid (“Glenda”); Count III, Heath Pounds (“Heath”), a child; and Count IV, Dylan Lee (“Dylan”), a child. The indictment also charged in Count V that Stevens committed aggravated assault of Erica Stevens a/k/a Ericka Stevens (“Erica”).

2. On March 31, 1999, the trial court granted Stevens's motion for a change of venue from Marion County filed on February 9, 1999. The trial was moved from Marion County to Madison County. The jury selection began on November 29, 1999.

3. On December 3, 1999, the jury returned guilty verdicts on all five counts: four counts of capital murder under Miss.Code Ann. § 97-3-19(2) and one count of aggravated assault under Miss.Code Ann. § 97-3-7(2).

4. The jury sentenced Stevens on December 4, 1999, and imposed the death penalty on counts I-IV, relating to Wesley, Glenda, Heath and Dylan. The trial court further sentenced Stevens to twenty years in prison on the aggravated assault conviction, relating to Erica.

5. Stevens filed a Motion for a New Trial or in the Alternative J.N.O.V. on December 14, 1999, which was denied on January 4, 2000.

6. Stevens filed a notice of appeal to this Court on January 14, 2000.

FACTS

7. Four brutal murders of Wesley, Glenda, Heath and Dylan and one aggravated assault of Erica, took place on Sunday, October 18, 1998, in Marion County.

8. Erica is the daughter of Stevens. At the time of trial, Erica was only seventeen years old and had been living with her aunt, Gaye Chambliss. Erica has a sister named Angela Dawn Stevens, (“Angel”), who was nineteen years old at the time of trial. Erica and Angel were both the daughters of Stevens and Glenda.

9. On October 18, 1998, Erica lived with her mother, Glenda, with her step-father, Wesley, and her brother, Dylan, in a single-wide trailer home in Marion County located on Shiloh Firetower Road in Foxworth, Mississippi. There were bad feelings between Stevens and Glenda. Glenda and Stevens divorced when Erica was approximately three years old. Stevens came back into Erica's life when she was around twelve years old.

10. Lauren Stevens (“Lauren”), present wife of Stevens, testified that she and Stevens had married in 1993. Stevens received custody of his daughters, Erica and Angela, in September of 1996. However, in August of 1998, Glenda regained custody of Erica. Erica had wanted the custody arrangement changed, and Erica signed the paperwork to change custody to her mother, Glenda. Stevens and Glenda had disputes over child support. The last time Stevens and Glenda had been in the same room was at court for the child support. Lauren testified that Glenda and Stevens were having domestic problems. Lauren testified on sentencing that a set of papers regarding child support had been delivered to Stevens about a month before the murders on October 18, 1998. Stevens was expecting a settlement from a back injury. Lauren testified that Stevens expected that he would have to pay a large sum of money to Glenda for past due child support from the settlement check.

11. At the time of the murders, Stevens was unemployed and had a worker's compensation claim due to an alleged back injury. Stevens's wife, Lauren, was also unemployed. Lauren testified that Stevens' alleged injury occurred January of 1993, while working on a land ring. Since the accident, Stevens increased his drinking and was also taking medication: Lorcet 10's, Somas and Xanax. Stevens's drinking increased after his second back surgery in either 1995 or 1996.

12. On Sunday, October 18, 1998, Stevens and his brother, Ricky Stevens (“Ricky”), had gone in Stevens's beat up, white Ford pick-up truck to play pool. They left Stevens's home together around lunchtime. Lauren received a telephone call from Ricky on a cell phone around three o'clock in the afternoon. Stevens and Ricky had run into a ditch and wrecked the truck. Stevens appeared drunk to Lauren when she arrived to assist them. Stevens's truck was pulled out of the ditch, and Stevens went back home. Stevens fell asleep on the couch after returning home and awoke later hungry. After falling back to sleep, Stevens got up and ate. Ricky was passed out, and Stevens tried to wake him up to go lie down in the bedroom. Ricky moved onto the porch and ate. Stevens went to bed.

13. Lauren saw the light on in Stevens's bedroom under the door and heard movement in the room. When Lauren entered the bedroom, she saw Stevens with his gun belt laid out on the bed. Stevens was putting shotgun shells in the gun belt. Lauren remembered seeing his .357 handgun. Lauren tried to stop Stevens from leaving the house. During this time, Julie Hollinger (“Hollinger”) had appeared on the porch and was standing at the door. Hollinger was an acquaintance of Lauren. Stevens went back into the bedroom. Stevens did not turn on the light. Ricky was still on the porch talking to Hollinger. Hollinger stayed on the porch with Ricky a few minutes. As soon as Hollinger left, Stevens ran out of the house and left in his beat up, white Ford truck. Stevens had taken his guns with him. Lauren stated to Ricky, “I think he's messing up. I think you need to stop him.”

14. On Sunday, October 18, 1998, Erica had slept late and had gotten up between twelve and one o'clock that afternoon. Dylan's twelve-year-old friend, Heath, was visiting at the Reed home. Erica had joined Dylan and Heath playing Nintendo. Erica's sister, Angel, was at church with her boyfriend, Nathan Carney.

15. Erica, Heath, Wesley, Glenda and Dylan were all at the trailer and had finished eating supper. Heath was not spending the night. Heath was to be taken home after they had cleaned up. Erica was cleaning the supper dishes when she heard a motor she recognized. Erica was standing in the kitchen looking out the kitchen window above the sink. She saw Stevens park his truck beside Wesley's truck in the backyard, No one was with Stevens. Erica saw Stevens get out of his truck. The trailer had a sliding glass door on the back of the trailer with steps leading up to the entrance.

16. Wesley opened the sliding glass back door only wide enough to stick his head out the door. Wesley yelled out, “Benny Joe, Can I help you ?” Erica then heard a gunshot and Wesley scream, “[S]hit, he shot me.” Erica saw Wesley had been shot in the arm and had fallen down to the floor.

17. Erica then ran to get Dylan and Heath up from playing Nintendo in the living room. She headed toward her mother's bedroom. Glenda was in her bedroom watching television. Glenda's bedroom and the living room were to the left of the back door. Erica could not get the door open to her mother's room. Erica was shot in the back and fell through the doorway into the bedroom. Heath and Dylan screamed when Erica was shot.

18. Glenda jumped up to inquire as to what was happening and told Erica to hide. Erica hid in the stand-up shower in that bedroom. The bedroom and bathroom were connected with no door between them.

19. Erica saw her mother grab her gun and hold it to her chest. Glenda was shaking and was standing in front of the chifforobe. Glenda screamed that “he [Stevens] couldn't have her babies.” Erica heard another gunshot and saw her mother jerk from the shot. Erica could not hear Dylan or Heath anymore.

20. Erica heard Stevens say after shooting Glenda, “[B]itch, I told you that I'd kill you one of these days.” Erica came out of the shower and saw Stevens going through the bedroom. Erica saw Stevens leave her mother's bedroom, but she did not see him enter the bedroom. Erica testified that Stevens was wearing his “John Wayne” belt.

21. Erica could hear Wesley yelling everybody's name asking somebody to call 911 and asking God to help him. Erica went through the small window in the bathroom where she had been hiding. Erica hid under the trailer directly under the window afraid to move from her location. She heard more gunshots in the trailer. She continued to hear shots while she was running away from the trailer. Erica went to a neighbor's house for help. The neighbor was Ora Mae Pittman. Erica beat on Ora Mae Pittman's door and collapsed at the door. Ms. Pittman had just gotten off work where she was employed at the Mississippi State Department of Youth Services in Columbia. Ms. Pittman's boyfriend, Larry Green, her nephew and her son were also home.

22. Ms. Pittman described that Erica appeared to have been shot in the back. Her white t-shirt had holes and spots of blood. Erica told them that her father had shot her mother, step-father, brother and friend. Ms. Pittman described that they were all afraid and Erica appeared to be scared. Erica was afraid that Stevens had followed her to Ms. Pittman's house. Ms. Pittman's boyfriend and son armed themselves and released the dogs. Erica used the telephone to call 911 and to warn Heath's mother and her sister's boyfriend's father. Erica wanted to prevent someone from going into the trailer with Stevens still there.

23. Erica was transported from Ms. Pittman's house to the hospital by ambulance. Photographs were taken of Erica's injuries. Pellets were imbedded in Erica's back. The gunshot wounds to Erica's back caused permanent scars in her back, and five unremovable pellets remained permanently lodged in her shoulder blade. Erica remained in the hospital for six days.

24. Stevens left the trailer and headed back home. When Stevens arrived home, Lauren and Ricky were on the porch. Lauren stated that it was getting dark outside when Stevens arrived back home. While on the porch, Lauren asked Stevens, “[W]hat did you do?”, to which Stevens replied, “I just killed a family.” Lauren then heard Ricky gasp. Stevens handed Glenda's gun to Lauren.

25. Lauren went to her brother's, Buck White (“Buck”) house. Lauren told Buck what had happened. Lauren called attorney, Jim Rhoden (“Rhoden”), for advice. Stevens had used Rhoden in the past for domestic legal matters. Rhoden recommended they needed a criminal lawyer and recommended criminal attorney Morris Sweatt (“Sweatt”). Rhoden advised that he would help Stevens surrender, and he would try to find out what he could. In order to talk to Lauren, Stevens went out to Buck's house. After talking with Lauren, Stevens left and later returned to Buck's house. Stevens had gone to Rhoden's office, but no one was there.

26. Lauren testified after Stevens returned, two cars pulled up at Buck's house. Rhoden was in one of the cars. Stevens was taken into custody by the police.

27. On one of Lauren's jail visits with Stevens, Lauren told Stevens she needed money and wanted to have trees cut off of the 56 or 57 acres they owned. Stevens' workers compensation checks had been discontinued. Stevens told Lauren, “[N]o, don't do that.” Stevens finally said, “[Y]ou're gonna hang me.”

28. Stevens explained to Lauren that he had hidden the shotgun he used in the trees on their property. Lauren found the shotgun lodged up in a tree and called her friend, Angela Pittman. When Angela Pittman arrived, Lauren paged officer Tim Singley (“Singley”), an investigator at the Marion County Sheriff's Department on his beeper. All three went together to locate the shotgun.

29. Singley located and retrieved the shotgun hanging approximately thirty feet up in the tree at a fork in the limb. The shotgun was identified as a Winchester 12 gauge double-aught shotgun.

30. A search warrant was obtained to search Stevens's truck. Three spent shotgun shells, two .357 magnum weapons, one bandolier ammunition belt containing ten live shotgun shells and a .22 magnum derringer were found in Stevens's truck. A .357 magnum was found in Stevens's truck door panel. The two projectiles removed from Wesley's body matched the .357 magnum found in Stevens' truck.

31. A few days after his arrest, Stevens told authorities that there was a weapon hidden behind Rhoden's law office. The authorities recovered a .45 caliber pistol and three fully loaded clips from behind the office.

32. Ballistic testing performed by Steve Byrd, forensic scientist for the Mississippi Crime Laboratory, showed the spent shotgun shells found at the crime scene were discharged from the shotgun removed by Singley from the Stevens's property. The shotgun had the capacity to hold five shells, four in the magazine, plus one in the chamber.

33. Joe Edward Andrews, Jr. (“Andrews”), an expert in forensic science with the Mississippi Crime Laboratory, examined the athletic shoes worn by Stevens on October 18, 1998, Andrews examined the wooden steps removed from the back door of the Reed's trailer. The wood steps were covered in blood with a footprint impression. Andrews testified that the two impressions can be positively identified as being produced by Stevens's right and left soles of the shoes Stevens was wearing at the time arrested.

34. When the sheriff's department arrived at the gruesome, bloody crime scene, they discovered the following: Wesley's body in the kitchen; Dylan's body in the doorway between the hall and the bedroom with the top of his head blown off; Glenda was found in a kneeling position in the bedroom with a rear-entry head wound; and Heath's body covered in blood behind the bed. Heath's injuries could not be seen initially because of the blood. Shotgun shell casings were recovered at the scene.

35. Wesley had been shot four times leaving two different types of wounds made by two different weapons. The four gunshot wounds consisted of two from a shotgun and two from a large caliber handgun. Wesley had a 5 inch gaping, non-lethal shotgun wound to the front, right shoulder, which fractured the shoulder bones and appeared to have been inflicted from 6-8 feet away. He had a shotgun wound to the left side of the face, involving the left cheek. This injury caused “massive fractures” to the skull, “extensive injuries to the brain”, and it was a lethal injury. However, the autopsy revealed that death could have been delayed for a period of time. Wesley also received another gunshot wound at “near contact” from a large caliber copper-jacketed bullet found in the stomach. In addition, Wesley had a “near contact perforating gunshot wound” to the chest, which was also inflicted by a large caliber weapon. A copper-jacketed, large caliber bullet was recovered in his body at the lower left chest wall. Wesley was 38 years old when he died.

36. Glenda suffered a straight, gaping shotgun wound to the back of her head that measured 4 inches in diameter. There was extensive injury, fracturing, and bleeding of the brain and the skull. This injury was fatal, and it was inflicted from a distance of 4-5 feet. Glenda was 38 years old when she died.

37. Dylan also suffered a lethal shotgun wound to the back of the head. Some pellets exited through his left eye, left ear, and nose, however, most of the shot was in the cranial vault. Dylan was eleven years old when he died.

38. Heath had a non-lethal shotgun wound to the face. The autopsy also indicated that Heath was in a defensive posture with his hand raised. He then received a fatal shotgun blast to the chest which caused extensive injury to his heart, aorta, and right lung and also severed his spine. Heath was twelve years old when he died.

STATEMENT OF ISSUES

I. WHETHER IT WAS ERROR FOR THE COURT TO DENY BENNY JOE STEVENS'S MOTION FOR SEVERANCE OF THE MULTIPLE COUNTS IN THE INDICTMENT? II. WHETHER IT WAS ERROR FOR THE COURT TO PROCEED UNDER THE INDICTMENT WHICH CONSTITUTED A VIOLATION OF THE DOUBLE JEOPARDY DOCTRINE AND THE “VAGUENESS DOCTRINE”? III. WHETHER THE STATE ABUSED THE RIGHT OF PEREMPTORY CHALLENGE IN THIS CASE UNDER THE PRINCIPLES OF THE BATSON CASE? IV. WHETHER THE COURT VIOLATED THE HUSBAND AND WIFE PRIVILEGE? V. WHETHER IT WAS ERROR FOR THE COURT TO DENY THE TESTIMONY OF THE DEFENSE EXPERT IN THE GUILT PHASE OF THE TRIAL ON THE ISSUE OF DEFENDANT'S ABILITY TO FORM SPECIFIC INTENT? VI. WHETHER THE CAPITAL PUNISHMENT SCHEME IS UNCONSTITUTIONAL? VII. WHETHER IT WAS ERROR FOR THE COURT TO DENY STEVENS'S MOTION TO DELAY THE SENTENCING PHASE? VIII. WHETHER IT WAS ERROR FOR THE COURT TO DENY STEVENS'S MOTION FOR INDIVIDUAL SEQUESTERED VOIR DIRE OF JUROR PANELISTS? IX. WHETHER AN IMPROPER COMMENT BY THE PROSECUTOR SERVED TO INFLAME THE JURY? X. WHETHER THE VERDICTS OF THE JURY WERE AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE? XI. WHETHER IT WAS ERROR TO LIMIT STEVENS' VOIR DIRE? XII. WHETHER IT WAS ERROR FOR THE COURT TO ALLOW PREJUDICIAL HEARSAY TESTIMONY? XIII. IS THE IMPOSITION OF THE DEATH PENALTY EXCESSIVE OR DISPROPORTIONATE IN THIS CASE? LEGAL ANALYSIS I. WHETHER IT WAS ERROR FOR THE COURT TO DENY BENNY JOE STEVENS'S MOTION FOR SEVERANCE OF THE MULTIPLE COUNTS IN THE INDICTMENT?

39. Stevens appealed his conviction for four counts of capital murder of the following, Wesley, Glenda, Heath and Dylan, and one count of aggravated assault against Erica, alleging that the multiple-count indictment should have been severed.

40. On April 6, 1999, Stevens filed his Motion for Severance of the Multiple Count Indictment. Stevens alleged in his motion that the State should be required to prove each of the four homicide cases in a separate hearing before a separate jury. At the Omnibus Hearing on April 6, 1999, the trial court heard Stevens's Motion for Severance. The State argued that under res gestae in order to tell the complete story, everything that happened at the crime scene is admissible before the jury. The trial court agreed with the State, even stating that multiple trials would give the State multiple chances at a conviction and cost a lot of money to have separate trials. Stevens's Motion for Severance was overruled by the trial court.

41. Historically, this Court had not allowed multi-count indictments until 1986 when the Mississippi Legislature adopted a multi-count statute. Corley v. State, 584 So.2d 769, 772 (Miss.1991). However, the Mississippi Legislature adopted Miss.Code Ann. § 99-7-2 (2000), addressing whether two or more offenses may be tried together or must be severed.

42. Miss.Code Ann. § 99-7-2 (2000) reads in pertinent parts, as follows: (1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan; (2) Where (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding; (3) When a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each conviction.... [1]

43. This Court has stated that when a multi-count indictment has been handed down and the defendant has requested severance of the indictments the trial court should conduct a hearing on the issue. Eakes v. State, 665 So.2d 852, 861 (Miss.1995). In Eakes, this Court set out the trial court's determination of whether a multi-count indictment warrants severance. The State bears the burden of proving that a multi-count indictment is within the language of the statute. Id. The trial court “should consider the time period between the offenses, whether evidence proving each offense would be admissible to prove the other counts, and whether the offenses are interwoven.” Id. [2]

44. This Court, in Eakes, restated the three options in which two or more offenses are triable in the same count and may be charged in the same indictment as addressed in Miss.Code Ann. § 99-7-2 (2000). Id. The three options are as follows: (1) the offenses are based on the same act or transaction; or (2) the offenses are based on two (2) or more acts or transactions connected together; or (3) the offenses are based on two (2) or more acts or transactions constituting parts of a common scheme or plan. Id. See McCarty v. State, 554 So.2d 909, 914 (Miss.1989). The intervening time period must be insignificant as a prerequisite to both the second or third options. Eakes v. State, 665 So.2d at 861. This Court in Corley, stated that “[I]n allowing a multi-count indictment, this Court agreed with the Legislature that the offenses must be based on the same act or transaction, or be based on two or more acts or transactions, connected together or constituting parts of a common scheme or plan.” Corley v. State, 584 So.2d at 772; see McCarty v. State, 554 So.2d at 914-16. Capital murder may be charged in a multi-count indictment. Woodward v. State, 533 So.2d 418, 421-23 (Miss.1988), vacated in part on other grounds, Woodward v. State, 635 So.2d 805 (Miss.1993). [3]

45. In the case sub judice, it is clearly evident that the four murders of Wesley, Glenda, Heath and Dylan, as well as the assault of Erica, all occurred on October 18, 1998, at the trailer occupied by Wesley, Glenda, Dylan and Erica. The murders and the assault occurred one after the other in a series of events arising out of the same acts or transactions which constituted a common scheme or plan to murder everyone inside that trailer on October 18, 1998. There existed no gaps in time between the crimes.

46. We find that the lower court did not err in allowing the four counts of capital murders being tried together under a multi-count indictment. The crimes undisputably constituted a common scheme or plan. This issue is wholly without merit.

II. WHETHER IT WAS ERROR FOR THE COURT TO PROCEED UNDER THE INDICTMENT WHICH CONSTITUTED A VIOLATION OF THE DOUBLE JEOPARDY DOCTRINE AND THE “VAGUENESS DOCTRINE”?

47. In the case sub judice, Stevens was charged with four counts of capital murder and one count of aggravated assault. The State sought the death penalty against Stevens.

48. To charge Stevens with capital murder, the State relied on the underlying felonies of burglary and felony child abuse with the murders to elevate the murders to capital status.

49. Miss.Code Ann. § 97-3-19(2) (2000) provides the list of situations in which the killing of a human being without the authority of law shall be capital murder as follows: (a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman. For purposes of this paragraph, the term “peace officer” means any state or federal law enforcement officer including but not limited to a federal park ranger, the sheriff of or police officer of a city or town, a conservation officer, a parole officer, a judge, prosecuting attorney or any other court official, an agent of the Alcoholic Beverage Control Division of the State Tax Commission, an agent of the Bureau of Narcotics, personnel of the Mississippi Highway Patrol, and the employees of the Department of Corrections pursuant to Section 47-5-54, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary; (b) Murder which is perpetrated by a person who is under sentence of life imprisonment; (c) Murder which is perpetrated by use or detonation of a bomb or explosive device; (d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals; (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnaping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies; (f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony; (g) Murder which is perpetrated on educational property as defined in Section 97-37-17; (h) Murder which is perpetrated by the killing of any elected official of a county, municipal, state or federal government with knowledge that the victim was such public official. Cited in Miss.Code Ann. § 97-3-19(2)(f) (2000) to demonstrate instances that justify the commission of felonious child abuse and/or battery of a child states, Miss.Code Ann. § 97-5-39(2)(2000) states: Any person who shall intentionally (a) burn any child, (b) torture any child or, (c) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or battery of a child and, upon conviction, may be punished by imprisonment in the penitentiary for not more than twenty (20) years. [4]

50. Stevens argues that where the felony child abuse was the killing of a child, the murder of the child subsumes the felony child abuse. Stevens argues, therefore, the child abuse resulting in the deaths of Dylan and Heath should merge into their murders thereby not allowing their murders to be elevated to capital murder. This Court has previously rejected such a claim. Faraga v. State, 514 So.2d 295, 302-03 (Miss.1987). In Faraga, this Court addressed the factually similar situation where the defendant argued that Miss.Code Ann. § 97-3-19(2)(f) was void because the merger doctrine applied. Id. The merger doctrine applies when the “underlying felony is ‘merged’ with the killing and cannot be treated as a separate crime.” Id. [5]

51. In Faraga, the defendant contended that since the facts demonstrated that only one act caused the death of the child, namely throwing a baby onto the pavement, then no one independent act constituted felonious abuse and/or battery of a child. Id. This Court stated that Miss.Code Ann. § 97-5-39(2) “does not require that the abuse be dispensed over a period of time before a charge for felonious abuse will arise.” Id. This Court further stated that “[t]he intent of the Legislature was that serious child abusers would be guilty of capital murder if the child died.” Id. at 302. We find that it was the intent of the Mississippi Legislature under Miss.Code Ann. § 97-5-39(2) that the intentional act of murdering a child by any manner or form constitutes felonious child abuse and, therefore, consitutes capital murder under Miss.Code Ann. § 97-3-19(2). The murder of a child constitutes serious child abuse, and the murder may be elevated to capital murder under the reasoning in Faraga. This Court in Faraga, restated the Court's position that the “Legislature's prerogative is to define crimes and set out punishment for offenders, and this prerogative is given great latitude.” Id.; See Peterson v. State, 268 So.2d 335, 337-38 (Miss.1972). [6]

52. There only needs to be one act alone in order to constitute abuse and/or battery. Brown v. State, 690 So.2d 276, 291 (Miss.1996). See also Ahmad v. State, 603 So.2d 843, 847 (Miss.1992); Monk v. State, 532 So.2d 592, 598-99 (Miss.1988); Houston v. State, 531 So.2d 598, 606 (Miss.1988).

53. In the case sub judice, besides the acts of felonious child abuse committed involving the murder of the children Dylan and Heath, Stevens also shot his daughter, Erica, in the back. Erica was left with permanent craters in her back, five pellets permanently lodged in her shoulder and the trauma of witnessing the massacre of her family.

54. Stevens similarly argues, without citing any authority, that allowing the underlying act of burglary to enhance the murders to capital status was vague and violates the doctrine against double jeopardy. [7]

55. Burglary is defined in Miss.Code Ann. § 97-17-23 (2000) as follows: Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years. [8] [9]

56. The statute requires breaking and entering with the intent to commit some crime in order to constitute burglary. Miss.Code Ann. § 97-17-23. Stevens entered the trailer clearly with the intent to commit murder of the individuals that happened to be inside the trailer on October 18, 1998. Stevens shot Wesley and came inside the trailer shooting everyone else in the trailer. The crime of murder can be the underlying element required to establish the crime of burglary. Smith v. State, 499 So.2d 750, 753-54 (Miss.1986). In Smith, this Court unquestionably rejected the argument made by Stevens by holding that the underlying felony of burglary did not merge into murder. Id. at 754.

57. This Court in Smith had the same factual situation as in the case sub judice. The crime of burglary was used to raise the murder to capital murder. Id. The crime of burglary stands intact to elevate the murder to capital murder. Id. This Court in Smith, stated, in rejecting the merger doctrine, as follows: We decline to adopt the merger doctrine and hold that under our felony-murder statute, the underlying felony does not merge into the murder. Our statutory provisions dealing with murder and the particular felony, in this case, burglary, are intended to protect different societal interests. When the appellant entered the home of [a person] with the intent to commit a crime therein, i.e., to kill [the victim], the burglary was complete and the subsequent killing of [the victim] elevated the crime of murder to that of capital murder. We find the appellant's argument unpersuasive. Id. [10]

58. Even though, clearly Stevens's intent to commit the murders satisfies the underlying element for the burglary, the felonious child abuse previously addressed would also act to serve as both the underlying element of burglary and the underlying crime to elevate the murders to capital murder status.

59. We find that Stevens's argument that there was no act that would constitute felonious child abuse and that the felonious child abuse and burglary merger into the crime of murder are totally without merit.

III. WHETHER THE STATE ABUSED THE RIGHT OF PEREMPTORY CHALLENGE IN THIS CASE UNDER THE PRINCIPLES OF THE BATSON CASE?

60. Stevens contends that the trial court erred in finding that the State could exercise its peremptory challenges on two black members of the venire under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Stevens further contends that the State violated the principles of non-discrimination in the exercise of its peremptory challenges. The record reflects that the State exercised a total of six peremptory challenges, two of which were for venire panel members, Ragsdale and Olive. Ultimately, eleven white jurors and one black juror were empaneled. In the case at hand, Stevens is of the white race, as well as, all five of the victims in the case. [11]

61. In Batson, the United States Supreme Court held that a peremptory challenge cannot be used to exclude venire-persons from jury service based on their race. A peremptory challenge based on race constitutes a violation of due process. Batson v. Kentucky, 476 U.S. at 98, 106 S.Ct. at 1723-24. Since the Batson ruling in 1986, the use of the rule has been extended to other circumstances. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S.Ct. 1419, 1422, 128 L.Ed.2d 89(1994) ( Batson extended peremptory challenges based on gender); Georgia v. McCollum, 505 U.S. 42, 54, 112 S.Ct. 2348, 2356, 120 L.Ed.2d 33 (1992) (defendant's use of peremptory challenges based on racial consideration was prohibited); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628-29, 111 S.Ct. 2077, 2087, 114 L.Ed.2d 660 (1991) ( Batson extended to civil cases); Powers v. Ohio, 499 U.S. 400, 415-16, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991) (race-based challenges by the State without regard to the race of the defendant was prohibited); Thorson v. State, 721 So.2d 590, 594 (Miss.1998) ( Batson extended to peremptory strikes based on religion).

62. The necessary steps to resolve a peremptory challenge based upon Batson are cited in Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995) as follows: 1. The party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory challenge. 2. If this initial showing is successful, the party desiring to exercise the challenge has the burden to offer a race-neutral explanation for striking the potential juror. 3. The trial court must then determine whether the objecting party has met their burden to prove there has been purposeful discrimination in the exercise of peremptory challenges.

63. The United States Supreme Court in Georgia v. McCollum, extended Batson and held that “the constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges.” Georgia v. McCollum, 505 U.S. at 59, 112 S.Ct. at 2348. Ordinarily, the first step in analyzing the peremptory challenge is to determine “whether there was a prima facie showing that race was the motivation for the State's peremptory challenges.” Woodward v. State, 726 So.2d 524, 530 (Miss.1997). [12]

64. However, in the case sub judice, the State gave its reasons for exercising its peremptory challenges without being required to do so or without the trial court first determining whether a prima facie case exists. When the State gives its reasons for exercising peremptory challenges without being required to do so or because the trial court orders it without finding a prima facie case, the requirement of making a prima facie is moot. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395(1991); Manning v. State, 735 So.2d 323, 338-41 (Miss.1999); Hughes v. State, 735 So.2d 238, 250 (Miss.1999); Manning v. State, 726 So.2d 1152, 1182-83 (Miss.1998); Woodward v. State, 726 So.2d at 530.

65. In Woodward, this Court stated the “next step is to determine whether the prosecution met its burden of showing sufficient race-neutral explanations for its strikes.” Woodward, 726 So.2d at 529-30. “A peremptory challenge does not have to be supported by the same degree of justification required for a challenge for cause.” Stewart v. State, 662 So.2d at 558. It is not necessary to meet the same standard of examination as a challenge for cause for a peremptory challenges. Id. [13]

66. The State contended that juror Radgale was sleeping during voir dire and juror Ragdale was not still a registered voter in Madison county, having listed a Jackson address on the juror questionnaire. The trial court in responding to the State's challenge for cause and Steven's objection disallowed the challenge for cause as to juror Ragdale. The trial court, however, allowed the State to exercise its peremptory challenge as to juror Ragdale if it chose to do so. The trial court stated as follows: Anyway, even if it were, I would say that the fact that they [State] thought he [Ragdale] had been sleeping [during voir dire] and that he [Ragdale] was from a different county, residing in a different county, that would be a sufficient reason to excuse him [Ragdale]. But it will be S-2 [peremptory challenge] rather than for cause. [14] [15]

67. We hold that the fact that juror Ragdale no longer resided in Madison County to be a valid race neutral reason to allow the trial court to grant the State's peremptory strike of juror Ragdale. Residency is not a characterization based on race. In order to be qualified as a competent juror, residency in the county is required. Miss.Code Ann. § 13-5-1 (1972) states in pertinent part as follows: Every citizen not under the age of twenty-one years, who is either a qualified elector, or a resident freeholder of the county for more than one year, is able to read and write, and has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors within a period of five years and who is not a common gambler or habitual drunkard, is a competent juror. [16]

68. The State also moved to strike juror Olive, a black female. The trial court allowed the strike as a peremptory challenge. Stevens's attorney objected. The State stated that juror Olive did not complete the juror questionnaire, follow the court's directions and appeared to be inattentive and preoccupied the whole time. The State's position was that the State only had to provide a racially neutral reason for the peremptory challenge, not a racial neutral reason giving rise to a challenge for cause.

69. The trial court inquired from the State if it planned to strike juror Bouldin, the next black juror on the venire panel. The State responded that it planned to accept juror Bouldin. On that understanding, the trial court allowed juror Olive to be struck over Stevens's objection. [17]

70. It may be argued that one or all of the race-neutral reasons expressed by the defense are acceptable. However, it must be remembered that this Court has held that the trial judge is afforded great deference in determining if the expressed reasons for exclusion of a venire-person from the challenged party is in fact race-neutral. Tanner v. State, 764 So.2d 385, 393 (Miss.2000). In Stewart, this Court held that “one of the reasons the trial court is granted such deference in a Batson issue is because the demeanor of the attorney making the challenge is often the best evidence on the issue of race neutrality.” Stewart, 662 So.2d at 559. Furthermore, the determination of discriminatory intent will likely turn on a trial judge's evaluation of a presenter's credibility and whether an explanation should be believed. Hernandez v. New York, 500 U.S. at 359, 365, 111 S.Ct. at 1866. In Stewart this Court, also, held that “[d]espite the importance of demeanor evidence, the trial court must consider all the relevant circumstances, such as the way prior peremptory strikes have been used and the nature of the questions poised on voir dire.” Stewart, 662 So.2d at 559 (citing Griffin v. State, 607 So.2d 1197, 1202 (Miss.1992)). A reversal will only occur if the factual findings of the trial judge appear to be “clearly erroneous or against the overwhelming weight of the evidence.” Tanner, 764 So.2d at 393 (citing Stewart v. State, 662 So.2d at 558); Davis v. State, 551 So.2d 165, 171 (Miss.1989).

71. The trial judge witnessed the challenges in court and could observe the demeanor of all involved as well as all other relevant circumstances in the case. We find that the trial court's findings are not clearly erroneous or against the overwhelming weight of the evidence. Therefore this contention is without merit.

IV. WHETHER THE COURT VIOLATED THE HUSBAND AND WIFE PRIVILEGE?

72. Stevens argues that the State should not been allowed to call his wife, Lauren, as a witness. Stevens's position was that the testimony was barred by spousal privilege, and Stevens objected at trial. The trial court allowed Lauren to testify at trial.

73. Lauren's testimony in question that Stevens primarily objects to on appeal are the following statements made by Stevens to his wife: (1) “I just killed a family” and (2) “I hid the gun in the trees.” [18]

74. The State presented a two-fold argument to the trial court that the testimony should be allowed: (1) because the acts involved a crime against or abuse to a child and (2) some of the statements made by Stevens [that he had just killed a family] were made in the presence of a third party, his brother, Ricky.

75. We find that Stevens erroneously relies on Miss.Code Ann. § 13-1-5 (Supp.2001). Stevens argues that Miss.Code Ann. § 13-1-5 provides that the wife is not a competent witness against her husband when the husband is on trial for criminal acts against a child who is not her child or a member of her household. That is a misstatement of the Code section. [19]

76. Miss.Code Ann. § 13-1-5 (Supp.2001) provides: Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against a child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both. (emphasis added). Thus, Section 13-1-5 allows either spouse to testify against the other in a criminal prosecution for a criminal act committed against any child.

77. Rule 601 of M.R.E. addresses the competency of witnesses to testify. The comments to Rule 601 of M.R.E. provides in pertinent part: As originally written, Rule 601 excepted two classes from competency, spouses pursuant to MCA § 13-1-5 and persons convicted of perjury or subornation of perjury pursuant to MCA § 13-1-11. Rule 601 was subsequently amended in 1990 to delete statutory references. Subsection (a) retains the substance of superseded M.C.A. § 13-1-5. Rule 601(a)(1) and (a)(2) provide exceptions where one spouse shall be a competent witness against the other spouse. Rule 601(a)(1) and (2) of M.R.E. provide: (a) In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or Rule 601(a)(2): (1) Husbands and wives may be introduced by each other in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them; (2) Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment or children.

78. The record reflects that not only did Erica suffer child abuse resulting from the gunshot and permanent injuries sustained, but also two children, Dylan and Heath, were brutally murdered on the killing rampage. Pursuant to Rule 601(a)(2), obviously, Lauren was a competent witness to testify. [20]

79. Stevens also argues that Rule 504 of M.R.E. prevents the testimony due to the husband-wife privilege. Stevens presents the position that since the children, Dylan and Heath, were not Lauren's children nor were they residents of her household, then Rule 504 of M.R.E. does not provide an exception to the marital privilege. We find that this argument is not supported by M.R.E. 504. The husband-wife privilege under M.R.E. 504 provides: (a) A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person. (b) In any proceeding, civil or criminal, a person has a privilege to prevent his spouse, or former spouse, from testifying as to any confidential communication between himself and his spouse. (c) The privilege may be claimed by either spouse in his or her own right or on behalf of the other. (d) There is no privilege under this rule in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child or (2) the person or property of (i) the other spouse, (ii) a person residing in the household of either spouse, or (iii) a third person committed in the course of committing a crime against any of the persons described in (d)(1) or (2) of this Rule. [21] [22]

80. First, there was testimony from Lauren that at the time Stevens confessed to her that he had just killed a family, Stevens's brother, Ricky, was also on the porch and heard Stevens's statement. Lauren testified that she remembered Ricky gasp for breath in shock. The marital privilege only applies to confidential communications. M.R.E. 504(a). Communication will be deemed to be non-confidential if it is made in the presence of another person, even if that person is a family member. Shell v. State, 554 So.2d 887, 894-95 (Miss.1989), reversed in part on other grounds, Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990); Fanning v. State, 497 So.2d 70, 74 (Miss.1986); Dycus v. State, 440 So.2d 246, 256 (Miss.1983).

81. Secondly, without restating the evidence and prior argument discussed, the record reflects that there were multiple counts of felonious child abuse involved in the commission of the crime. Rule 504(d)(1) states that there is no marital privilege when one spouse is charged with a crime against the person of any minor child or any third person while involved in committing a crime against a minor child.[23]

82. We find that the wife's testimony is clearly admissible as not being privileged as provided in the exceptions to the marital privilege in Rule 504(d) of M.R.E. Stevens was charged with the capital murder of two minor children, Dylan and Heath, as well as, the aggravated assault of a third child, Erica. Rule 504 of M.R.E. does not limit the exception to where a crime must be committed against a minor child of the testifying spouse or that spouse's household. Rule 504(d)(1) of M.R.E. provides an exception when one spouse is charged with a crime against any minor child.

83. These assignments of error are wholly without merit. We find that the trial court properly allowed Lauren to testify against Stevens.

V. WHETHER IT WAS ERROR FOR THE COURT TO DENY THE TESTIMONY OF THE DEFENSE EXPERT IN THE GUILT PHASE OF THE TRIAL ON THE ISSUE OF DEFENDANT'S ABILITY TO FORM SPECIFIC INTENT?

84. Stevens argues that the trial court erred in excluding Stevens's expert, Dr. Sarah Deland, a forensic psychiatrist, from testifying at trial during the guilt phase. Stevens did not present insanity as a defense at trial. Stevens argued that Dr. Deland was to testify regarding his diminished capacity to form specific intent. The State's position at trial was that the only mental defense in Mississippi is insanity under M'Naghten. The trial court ruled that during the guilt phase that unless the expert testimony can establish a M'Naghten issue, the expert, Dr. Deland, would not be allowed to testify at the guilt phase of the trial. The trial court allowed Stevens to make a proffer of Dr. Deland's testimony stating “[u]nless there's an issue of insanity, then she [Dr. Deland] could testify about that if that's a defense. But just for anything else, she would not be allowed to testify.” The trial court stated that otherwise, Dr. Deland's testimony would be acceptable in a sentencing phase as mitigation. Dr. Deland's proffered testimony was that in her opinion within a reasonable degree of medical certainty that Stevens lacked the ability to form specific intent to commit the charges levied against him. Dr. Deland cited Stevens's major depression, head injury (post-cussional syndrome), alcohol abuse, alcohol intoxication, xanax abuse, xanax intoxication, and learning disability as factors used in her conclusion. Dr. Deland stated that she reached her conclusion by reviewing the information, data or testing provided through interviews with family members; interview with Stevens; statements given to the police by Ricky Stevens, Erica Stevens and Lauren Stevens; Stevens's school records; investigative materials furnished by Stevens's attorney, Mr. Sweatt; pharmacy records, and medical records from various places; results of neuropsychological testing by Dr. Zimmerman; the indictment; the police reports; the autopsy reports and photographs.

85. After reviewing the proffered testimony, the trial court stated that it would allow Dr. Deland to testify at the sentencing phase, if the case reached the point of sentencing. [24] [25] [26]

86. In Mississippi, the M'Naghten test is used to determine legal insanity. Cannaday v. State, 455 So.2d 713, 720 (Miss.1984); Westbrook v. State, 658 So.2d 847, 850 (Miss.1995); Roundtree v. State, 568 So.2d 1173, 1181 (Miss.1990); Tyler v. State, 618 So.2d 1306, 1309 (Miss.1993); Davis v. State, 551 So.2d 165, 173 (Miss.1989). This Court in Harvey v. State, 207 So.2d 108, 118 (Miss.1968), stated that it “will continue to adhere to the M'Naghten rule as a test of criminal responsibility by reason of insanity.” The function of the M'Naghten test for insanity is to determine if the defendant was unable to distinguish right from wrong when the criminal act in question was committed. Roundtree, 568 So.2d at 1181. In order to establish a defense on the ground of insanity, it must be clearly proved that at the time the act was committed, “the accused was laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it, that he did not know that what he was doing was wrong.” Id. See Laney v. State, 486 So.2d 1242, 1245 (Miss.1986). The jury is left to decide the issue of insanity. Yarbrough v. State, 528 So.2d 1130 (Miss.1988); Gerlach v. State, 466 So.2d 75, 79 (Miss.1985); Hunter v. State, 489 So.2d 1086, 1090 (Miss.1986); Gill v. State, 488 So.2d 801, 802 (Miss.1986); Frost v. State, 453 So.2d 695, 698 (Miss.1984). In Laney, this Court stated that even though in the record it is uncontradicted that “Laney suffers from the mental disorder, schizophrenia, paranoia type,” that “does not in itself make him M'Naughten insane.” Laney, 486 So.2d at 1245. [27]

87. In Cannaday, the defendant tried to assert a diminished capacity defense. Cannaday, 455 So.2d at 720. The defense sought to introduce expert psychiatric testimony showing her limited mental ability. Id. Defense posed two questions (1) about marijuana use and (2) about her crying and being upset. Id. This Court held that the trial court properly did not allow the defense of diminished capacity to rise to met the M'Naughten test according to the experts at trial. Id. Diminished capacity is not a defense to a criminal charge in this State. Id.; See also Edwards v. State, 441 So.2d 84, 88 (Miss.1983); Hill v. State, 339 So.2d 1382, 1385 (Miss.1976); Laney v. State, 421 So.2d at 1219 (Miss.1982). [28]

88. We find that the trial court properly did not introduce evidence to establish a defense of diminished capacity that does not stand up to the M'Naughten test for legal insanity during the guilt phase. In the case sub judice, Stevens never argued that he was not sane. In fact, Stevens' attorney admitted that Stevens was not insane under M'Naghten. No evidence was presented to the trial court that Stevens satisfied the M'Naghten test for legal insanity to constitute a defense. [29]

89. The trial court, however, properly allowed Dr. Deland to testify as to Stevens's diminished capacity on the sentencing phase to provide mitigation. Miss.Code Ann. § 99-19-101(1) (2000) states in pertinent part that: “[I]n the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances.” [30]

90. Furthermore, the special concurring opinion in McDaniel established the principle that voluntary intoxication is not a defense to specific intent crimes. McDaniel v. State, 356 So.2d 1151, 1156, 1161 (Miss.1978). This principle is known as the McDaniel rule. Smith v. State, 445 So.2d 227, 231 (Miss.1984). The McDaniel rule is simply and clearly defined in Smith as follows: [I]f a person, when sober, is capable of distinguishing between right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible and he may be convicted and sentenced for the crime. Id.

91. We hold that since Stevens does not allege that he lacked the ability to differentiate between right and wrong, the fact that he had been abusing alcohol, pain and anti-depressant medication should not have been presented to the jury to show that he lacked the ability to formulate specific intent on the guilt phase at trial. This issue is without merit.

VI. WHETHER THE CAPITAL PUNISHMENT SCHEME IS UNCONSTITUTIONAL?

92. Stevens argues that Mississippi's capital punishment statute violates the Eighth and Fourteenth Amendments and is therefore unconstitutional. Miss.Code Ann. § 99-19-101(1) (2000) addresses the jury's determination of whether to impose the death penalty sentence after a conviction or adjudication of guilt and provides as follows: Upon conviction or adjudication of guilt of a defendant for capital murder or other capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without eligibility for parole, or life imprisonment. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial judge is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a jury to determine the issue of imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose or may be conducted before the trial judge sitting without a jury if both the State of Mississippi and the defendant agree thereto in writing. In the proceeding, evidence may be represented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitutions of the United States or of the State of Mississippi. The state and the defendant and/or his counsel shall be permitted to present arguments for or against sentence of death. (emphasis added). This Court has repeatedly held that “Mississippi's capital sentencing scheme, as a whole, is constitutional.” Woodward v. State, 726 So.2d at 528. See Lockett v. State, 614 So.2d 888, 897 (Miss.1992); Coleman v. State, 378 So.2d 640, 647 (Miss.1979); Washington v. State, 361 So.2d 61, 65 (Miss.1978).

93. In support of his position that the death penalty is unconstitutional, Stevens cites the United States Supreme Court case Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). The Court in Tison held that a defendant must “knowingly engage in criminal activities known to carry a grave risk of death.” Tison v. Arizona, 481 U.S. at 157-58, 107 S.Ct. at 1687-88. However, Tison addressed an Arizona statute which allowed capital punishment for reckless disregard for life. Id. [31]

94. This is not the situation in the case sub judice. First, reckless disregard for human life is not an aspect of Mississippi's capital sentencing scheme. See Miss.Code Ann. § 97-3-19 (2000). Second, as previously discussed, Stevens did not present any admissible evidence that he did not intend to murder Wesley, Glenda, Dylan and Heath or shoot Erica. No expert provided testimony that Stevens was not aware of what he was doing at the time the crimes were committed.

95. Two forensic psychiatrists testified on sentencing, Dr. Sarah Deland and Dr. Henry Maggio. Dr. Sarah Deland testified on mitigation for Stevens. She stated that Stevens was aware of what he was doing at the time the crimes were committed. Dr. Deland did not address whether or not Stevens knew right from wrong as previously discussed under the M'Naghten argument. Dr. Henry Maggio testified that, in his medical opinion within a reasonable degree of medical certainty, Stevens was not confused and knew exactly what he was doing at the time the crimes were committed. Dr. Maggio testified that Stevens executed his plan and then carried out plans to conceal his action. Stevens went to the home of Wesley and Glenda Reed and shot five people, killing four with one escaping. Dr. Maggio testified that Stevens knew right from wrong. Dr. Maggio took into account that Stevens took action to cover up his involvement with the crimes. Dr. Maggio further took into account that Stevens came home and told his wife, Lauren, that he had just killed a family.

96. Furthermore, Erica, the sole surviving victim, testified that Stevens said at the time he killed her mother, Glenda, “[B]itch, I told you that I'd kill you one of these days.”

97. We hold that the evidence unquestionably supports the finding that Stevens intended to kill his victims, and he was aware of what he was doing at the time the crimes were committed.

98. In Mississippi, the capital punishment statute Miss.Code Ann. § 99-19-101(7)(a)-(d) provides that in order to return and impose a sentence of death, the jury must make a written finding of one or more of the following factors: (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. Miss.Code Ann. § 99-19-101(7)(a)-(d) (2000). [32]

99. The State must only prove one of the four facts. It is not necessary that the State prove intent where the victim was actually killed. Lockett v. State, 517 So.2d 1317, 1338 (Miss.1987); Jordan v. State, 464 So.2d 475, 479-80 (Miss.1985); Williams v. State, 445 So.2d 798, 807 (Miss.1984). Miss.Code Ann. § 99-19-101(7) only requires that one of the factors be found to support a death sentence. Smith v. State, 729 So.2d 1191, 1218-19 (Miss.1998); Bell v. State, 725 So.2d 836, 860-61 (Miss.1998).

100. We find that Stevens's argument regarding the unconstitutionality of Mississippi's capital sentencing scheme is wholly without merit.

VII. WHETHER IT WAS ERROR FOR THE COURT TO DENY STEVENS'S MOTION TO DELAY THE SENTENCING PHASE?

101. Stevens argues that the trial court erred by not delaying the sentencing phase of the trial. Stevens contends that he was entitled to a “cooling-off” period. Miss.Code Ann. § 99-19-101(1) states in pertinent part as follows: Upon conviction or adjudication of guilt of a defendant of capital murder or other capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death, life imprisonment without eligibility for parole, or life imprisonment. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. [33]

102. We find that Stevens's argument is procedurally barred. After the jury returned the guilty verdicts at 11:25 a.m. on December 3, 1999, the trial court conducted a bench conference. Stevens's attorney requested that the court recess until 1:00 p.m. that afternoon in order to prepare to proceed with the sentencing phase. The State agreed with the defense for a recess. The trial court granted the request and stated, “Okay. We'll just do that then. We'll just recess until one o'clock.” Court was recessed at 11:32 a.m. and reconvened at 1:15 p.m.

103. Stevens did not request that the sentencing phase be recessed until later than 1:00 p.m. that day. Furthermore, when the trial court reconvened at 1:15 p.m., Stevens did not request a further continuance.

104. The trial court conducted a separate sentencing hearing as soon as practicable as required in Miss.Code Ann. § 99-19-101(1). We find that Stevens was granted the extension he requested. This issue is wholly without merit.

VIII. WHETHER IT WAS ERROR FOR THE COURT TO DENY STEVENS'S MOTION FOR INDIVIDUAL SEQUESTERED VOIR DIRE OF JUROR PANELISTS? [34]

105. Stevens argues that the trial court erroneously denied his motion for individual sequestered voir dire of the jury panelists. Stevens contends that jurors may remain silent during the voir dire process and fail to respond to questions for various reasons. Stevens contends that the jurors may not respond because they do not understand what is being asked due to ignorance or being misinformed or because the elicited responses may embarrass a juror on questions that inquire into the juror's feelings, attitudes, beliefs, memberships and relationships.

106. The trial court in the case sub judice allowed the jurors to approach the bench if they did not wish to answer a question in front of the venire panel. The trial court explained to the venire panel that if the jurors did not raise their hands when asked a question, then it will be assumed that the juror's answer is the one that was expected from the way the question was phrased.

107. The trial court also used a juror information questionnaire previously used by the trial court in a capital murder case. The questionnaire covered various topics including educational background, employment background, relationships, criminal background of family members or a close friend, religious affiliation, involvement in legal actions, prior jury service, organizational membership, television programs regularly viewed, marital status, hobbies, children's ages and occupations. The trial court's questionnaire covered some of the embarrassing questions normally posed to a jury panel on voir dire.

108. The record reflects that the trial court worked extensively with the attorneys to design the jury questionnaire. The trial court stated at the omnibus hearing held on April 6, 1999, that the questionnaires are used to “limit a lot of problems and a lot of questions.” If an attorney ran into problems on voir dire, the trial court stated that it would allow smaller groups of jurors to be voir dired if necessary to address particular questions. [35]

109. The procedure for conducting voir dire in criminal cases is governed by Rule 5.02 of the Uniform Criminal Rules of Circuit Court Practice. Russell v. State, 607 So.2d 1107, 1110 (Miss.1992). The circuit court has discretion under URCCC, Rule 3.05 (formerly Unif.Crim. R. Cir. Ct. Pra., Rule 5.02), to allow individual sequestered voir dire. Edwards v. State, 737 So.2d 275, 307-08 (Miss.1999); Manning v. State, 735 So.2d 323, 335-36 (Miss.1999); Berry v. State, 703 So.2d 269, 291 (Miss.1997); Ballenger v. State, 667 So.2d 1242, 1249-50 (Miss.1995); Simon v. State, 688 So.2d 791, 798 801, 804-805 (Miss.1997); Carr v. State, 655 So.2d 824, 842-43 (Miss.1995); Chase v. State, 645 So.2d 829, 846 (Miss.1994); Russell v. State, 607 So.2d 1107, 1110 (Miss.1992); Hansen v. State, 592 So.2d 114, 126 (Miss.1991); White v. State, 532 So.2d 1207, 1218 (Miss.1988); West v. State, 463 So.2d 1048, 1054 (Miss.1985); Billiot v. State, 454 So.2d 445, 456 (Miss.1984).

110. Uniform Rule of Circuit and County Court Practice 3.05 provides: Rule 3.05 VOIR DIRE In the voir dire examination of jurors, the attorney will question the entire venire only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge to a particular verdict will be asked. Attorneys will not offer an opinion on the law. The court may set a reasonable time limit for voir dire.

111. While the Court has stated that Rule 5.02 allows a circuit court, in its own discretion, to utilize individualized, sequestered voir dire, this Court further held that Rule 5.02 does not require more than what is stated on its face. Russell v. State, 607 So.2d at 1110; Hansen v. State, 592 So.2d at 126; White v. State, 532 So.2d at 1218; West v. State, 463 So.2d at 1054. In Russell, this Court stated that the “contention that he [Russell] should have been allowed to individually voir dire jurors out of the presence of the others is not supported by the decision of the Court.” Russell v. State, 607 So.2d at 1110; White v. State, 532 So.2d at 1218. [36]

112. We find that the decision of whether to allow individual sequestered jury voir dire should be left to the discretion of the trial court. The trial court in the case sub judice allowed juror questionnaires, open voir dire option of small group voir dire, as well as, allowed many jurors to approach the bench to answer the questions posed during voir dire. We determined that Stevens presents no harm or prejudice as a result of the way voir dire was conducted. This issue is wholly without merit.

IX. WHETHER AN IMPROPER COMMENT BY THE PROSECUTOR SERVED TO INFLAME THE JURY? [37]

113. Stevens contends that the case should be remanded for resentencing because of the State's comments made during opening statements on the sentencing phase. In specific, the State's opening statement in its entirety including the bench conferences is stated as follows: OPENING STATEMENT BY THE STATE BY MR. BURDICK: Ladies and gentlemen, you've seen me since Monday, and I've seen you. We've been together. I've tried to be honest with you from day one. I did the voir dire, if you remember, and I did not use the word “execution.” I did not used the word “state-sanctioned execution.” I did not use the phrase “put this man to death.” I tried to be as honest as I could. And I tried to be honest throughout this trial the same way. But I told you at one point in this trial, if we got there, I would ask you to kill Benny Joe Stevens. It's not time for levity. You're in a situation where you have a heavy load on your shoulders, and I know it. I've been at this for 30 years, and I've talked to jurors after trials like this. And they have wrenched, they have gut-wrenched, they have worried, they have sweated, and they've had ulcers. But they also had one thing in common. Regardless of their verdict, in their hearts they felt they did the right thing. And we're asking you to do the right thing. And that's your decision. I respected your decision, whatever it is, on the penalty phase. I only ask you to look at a few things. Now, there will be a closing argument in addition to an opening. The closing will be similar to the guilt, meaning Mr. Douglass and I will go first, they go in between, and we'll come back. And that perhaps will be more emotional than this. But I've learned after all these years that holding up a lot of photographs or bloody picture, screaming, yelling works sometimes with certain juries, but I don't think you're that type of jury, or you wouldn't be here. We've studied your background, we've talked to you. We think you're very thorough, very intelligent, and you don't respond to a lot of screaming, yelling and bloody pictures. But on the other hand, as you hear and listen to the evidence in this sentencing phase, I want you to keep one thing in mind. There's one word that has not been used in this courtroom in five days. And that's the word “slaughter.” Unprovoked slaughter of an entire family. There comes a time when certain acts-and I thought I'd seen a lot in my 30 years-there comes a time when an act is committed that is so- MR. SWEATT: Your Honor, we object to his commenting, using his experience to compare the case, severity of the case. MR. BURDICK: Forget all my other cases. There comes a time when an act is committed that is so devoid of humanity, so merciless, so pitiless, that a jury is given an option of death. And ya'll have that option. As you listen to the evidence, the State will first put on Erica Stevens, who you heard before. She will not describe the acts. That phase is over with. She will be put on for what is referred to as the victim impact on her life, on her family. What has this done to her? Then we will resubmit all the evidence that you've seen here back into the sentencing phase. Then the other side will put on whatever they want. I tell you this. When these acts that are committed that are devoid of humanity, I don't care about a person's childhood. We had two little boys in this massacre who will not have a childhood. I'm simply asking that when you hear the evidence that you keep all this in mind. Thank you. THE COURT: Mr. Sweatt. MR. SWEATT: May we approach the bench Your Honor? THE COURT: All right [BENCH CONFERENCE AS FOLLOWS] MR. SWEATT: We objected to what was like a comment on using his experience to say this is the worst case- MR. BURDICK: I didn't say that. MR. SWEATT: And the Court didn't rule. THE COURT: I thought he changed it. MR. BURDICK: I did. I said forget about all the experience. THE COURT: That's what I thought he said. MR. SWEATT: It's overruled. THE COURT: Yeah. [BENCH CONFERENCE CONCLUDED]

114. This Court has held that a trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990). “The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared.” Id.

115. Applying the law to the facts in the case sub judice, we find that the trial court did not abuse its discretion by denying Stevens's objection. The trial court found that after the defense raised an objection the State rectified the statement.

116. Stevens also argues that the judge “gave no curative instruction.” Stevens did not ask for any instruction or admonishment from the trial court. The prosecutor personally told the jury to disregard the comment by stating, “Forget all my other cases.” There was nothing for the trial judge in the case sub judice to “cure” with an admonishing instruction. Furthermore, Stevens did not request a mistrial or sentencing before another jury. This Court has held that attorneys are allowed wide latitude in their arguments “limiting them not only to facts, but also to deductions and conclusions which may be drawn therefrom, and to the application of the law to those facts.” Holly v. State, 716 So.2d 979, 988 (Miss.1998). [38]

117. The question for this Court on appeal is “whether the natural and probably effect of the improper argument of the prosecuting attorney [created] 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). In Wells, this Court also dealt with the “golden rule” argument. Id. at 506. A golden rule argument asks the jurors to put themselves in the place of one of the parties. Chisolm v. State, 529 So.2d 635, 639-40 (Miss.1988). In Wells, this Court did not find that the isolated golden rule argument resulted in any prejudice to the defendant. This Court stated, “[I]n light of the overwhelming evidence against Wells, the jury's verdict likely was not influenced by any prejudice that might have resulted from the district attorney's isolated ‘golden rule’ argument.” Id. at 507.

118. In the case sub judice, the statement made by the State was on the opening statement of the sentencing phase after the same jurors have returned the guilty verdicts. As in Wells, the overwhelming evidence presented to the jury does not render the likelihood that any prejudice was committed. Upon the defense's objection, the State rephrased the statement without the necessity of the trial court's ruling.

119. Similar statements by prosecutors of personal opinions have been upheld by this Court. See Evans v. State, 725 So.2d 613, 670-73 (Miss.1997); Holland v. State, 705 So.2d 307, 347 (Miss.1997). See also Johnson v. State, 416 So.2d 383, 391 (Miss.1982)(a prosecutor “may explore all the shores of thought and experience” and “draw upon literature, history, science, religion and philosophy for material”).

120. In Monk v. State, 532 So.2d 592, 601 (Miss.1988), this Court stated: The right to argument contemplates liberal freedom of speech and range of discussion confined only to bounds of logic and reason; and if counsel's argument is within limits of proper debate, it is immaterial whether it is sound or unsound or whether he employs wit, invective, and illustration therein. Moreover, figurative speech is legitimate if there is evidence on which it may be founded. Exaggerated statements and hasty observations are often made in the heat of the day, which, although not legitimate, are generally disregarded by the court, because in its opinion, they are harmless. There are, however, certain well established limits beyond which counsel is forbidden to go. He must confine himself to the facts introduced in evidence and to the fair and reasonable deduction and conclusions to be drawn therefrom and to the application of the law, as given by the court, to the facts. [39]

121. Absent impermissible factors such as commenting on the failure of the defendant to testify, a prosecuting attorney is entitled to great latitude in closing argument. We find this issue to be without merit.

X. WHETHER THE VERDICTS OF THE JURY WERE AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE?

122. Stevens contends that the legal sufficiency of the evidence does not support the guilty jury verdict of capital murder and that the trial court abused its discretion in denying post-trial motions for a new trial or in the alternative JNOV. We find that the assertions are without merit. Both of Stevens's contentions of legal sufficiency and weight of the evidence will be fully addressed. [40]

123. As to legal sufficiency, this Court held in Pinkney v. State, 538 So.2d 329, 353 (Miss.1988), that reversal can only occur when evidence of one or more of the elements of the charged offense is such that “reasonable and fair minded jurors could only find the accused not guilty.” [41]

124. As to the weight of the evidence, this Court held in McFee v. State, 511 So.2d 130, 133-34 (Miss.1987), that it has limited authority to interfere with a jury verdict. The Court looks at all the evidence in the light that is most consistent to the jury verdict. Id. The prosecution is given “the benefit of all favorable inferences that may reasonable be drawn from the evidence.” Id. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). This Court must accept as true the evidence favorable to the State. Wetz v. State, 503 So.2d at 812; see Van Buren v. State, 498 So.2d 1224, 1228 (Miss.1986).

125. Stevens argues that the evidence in the case was insufficient to support the sentence instruction number six which addressed the heinous, atrocious or cruel aggravation. The sentencing instruction as given by the trial court is as follows: SENTENCING INSTRUCTION NO. 6 The Court instructs the jury that in considering whether the capital offense was especially heinous, atrocious or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others. An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of capital murders-the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, that there was dismemberment of the body prior to death, that the defendant inflicted physical or mental pain before death, that there was mental torture and aggravation before death, or that a lingering or torturous death was suffered by the victim, then you may find this aggravating circumstance exists.

126. In death penalty cases, Miss.Code Ann. § 99-19-101(5) limits the aggravated circumstances presented in jury determination of death penalty. Miss.Code Ann. § 99-19-101(5) provides as follows: (5) Aggravating circumstances shall be limited to the following: (a) The capital offense was committed by a person under sentence of imprisonment. (b) The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. (c) The defendant knowingly created a great risk of death to many persons. (d) The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnaping, aircraft piracy, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, Mississippi Code of 1972, or the unlawful use or detonation of a bomb or explosive device. (e) The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. (f) The capital offense was committed for pecuniary gain. (g) The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. (h) The capital offense was especially heinous, atrocious or cruel. Miss.Code Ann. § 99-19-101(5)(h) provides for aggravating circumstance to be presented where, “the capital offense was especially heinous, atrocious or cruel.” This Court has repeatedly approved the following defining instruction, with regard to this aggravating circumstance in Miss.Code Ann. § 99-19-101(5)(h): The court instructs the jury that considering whether the capital offense was especially heinous, atrocious or cruel, heinous means outrageously wicked and shockingly; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to or even enjoyment of the suffering of others. An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of murders-the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, or that there was dismemberment of the body prior to death, or that the defendant inflicted physical or mental pain before death, or that there was mental torture or aggravation before death, or that a lingering or torturous death was suffered by the victim then you may find this aggravating circumstance. Crawford v. State, 716 So.2d 1028, 1047 (Miss.1998). “This Court has repeatedly held that this exact narrowing instruction on the ‘heinous, atrocious and cruel’ aggravator satisfies constitution requirements.” Id. Lester v. State, 692 So.2d 755, 797-98 (Miss.1997); Jackson v. State, 684 So.2d 1213, 1236-37 (Miss.1996); Carr v. State, 655 So.2d at 851-52; Conner v. State, 632 So.2d 1239, 1269-71 (Miss.1993); Jenkins v. State, 607 So.2d 1171, 1181-82 (Miss.1992). The jury instruction given in the case sub judice closely follows the language given by this Court in Crawford. [42]

127. This Court has repeatedly held that the “especially heinous, atrocious or cruel” provision of Miss.Code Ann. § 99-19-101(5)(h) is not so vague and overbroad as to violate the United States Constitution. Mhoon v. State, 464 So.2d 77, 84 (Miss.1985). See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

128. “The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background and his crime.” Clemons v. Mississippi, 494 U.S. 738, 748, 110 S.Ct. 1441, 1448, 108 L.Ed.2d 725 (1990). [43]

129. We find that there is ample evidence presented to establish that the crimes committed by Stevens fit squarely within the limiting definition of heinous, atrocious and cruel provided in the jury instruction given by the trial court. Wesley was shot four times with two different guns. Wesley called out for help and asking God for help. Glenda pleaded for her children's safety before being shot in the head. Two young boys, Heath and Dylan, were both brutally murdered. Heath, age twelve, was shot twice, the first shot to the face with the second fatal shot to the chest severing his spine. Dylan was age eleven when he died. Erica, Stevens's daughter, was shot in the back, but she managed to escape the massacre. Erica testified that Stevens told her mother, Glenda, before he killed his ex-wife that “[B]itch, I told you I would kill you one of these days.” Stevens confessed to his wife, Lauren, that he had “just killed a family.” Not only were acts of murder brutal, each family member and Heath were hunted down and forced to endure each person's murder one by one. Obviously, the jury was presented sufficient evidence to support the finding. In Evans v. Thigpen, 631 F.Supp. 274, 285 (S.D.Miss.1986), the court stated that “[t]he mental anguish and psychological torture suffered by the victim prior to the infliction of the death-producing wound may be considered with respect to the ‘heinous, atrocious or cruel’ factor and make its application constitutionally unobjectionable.” See Nixon v. State, 533 So.2d 1078, 1098 (Miss.1987) (held that killing of wife was especially heinous, atrocious, and cruel, where shot were fired at husband in presence of wife, prior killing of wife). This issue is without merit.

XI. WHETHER IT WAS ERROR TO LIMIT STEVENS'S VOIR DIRE?

130. Stevens contends the trial court erred in preventing or limiting his line of questioning on voir dire to rehabilitate some jury panelists who had expressed problems with inflicting the death penalty. On appeal, Stevens focuses on three jurors, Mary A. Williamson, Melville L. Cordua and Jackie N. Niven.

131. Juror Williamson, number 76, was questioned hypothetically by the attorney for Stevens whether her opposition to imposing the death penalty under any circumstances would be changed, “if the victims were two of your children.” Juror Williamson responded that it may if it would bring them back. Stevens's attorney questioned her by asking, “[E]ven if it was somebody close to you?” Juror Williamson responded, “I still wouldn't do it.” Juror Williamson clearly indicated that she would not vote to impose the death penalty even if the victim was someone close to her.

132. Juror Cordua, number 39, was asked by Stevens's attorney, “[A]re there any circumstances that you would impose the death penalty.” Juror Cordua responded, “I'm sorry, I don't think I could put somebody to death or kill somebody like the district attorney said.” Stevens's attorney posed the question to Juror Cordua, “[W]hat if it were circumstances like a person who was convicted of a crime already and he was in prison when he killed another.” The State objected to the question as not being the facts of the case at hand. The trial court stated, “[H]e said he could not envision any circumstances.” The trial court did not allow the question as being already answered.

133. Lastly on appeal, Stevens addresses Juror Nivens, number 9. Juror Nivens stated, “[N]o, I couldn't vote [for] the death penalty.” When asked by Stevens's attorney whether there was any circumstances that might allow him to vote for the death penalty, Juror Nivens replied, “[N]one that I can think of know.” The State objected to the questioning of Juror Nivens of how long he had that opinion. The trial court allowed Juror Nivens to be questioned if he had held that opinion of the death penalty for at least more than a month. Juror Nivens responded that he had held that opinion more than a month.

134. In Witherspoon v. Illinois, 391 U.S. 510, 515, 88 S.Ct. 1770, 1773, 20 L.Ed.2d 776 (1968), the United States Supreme Court stated that: [I]t cannot be assumed that a juror who describes himself as having “conscientious or religious scruples” against the infliction of the death penalty or against its infliction “in a proper case” thereby affirmed that he could never vote in favor of it or that he would not consider doing so in the case before him. The Court went on to hold: Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.

135. This Court has held that voir dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” Ballenger v. State, 667 So.2d at 1250 (citing Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992), citing Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976)) (quoting Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895)). See also Foster v. State, 639 So.2d 1263, 1274 (Miss.1994). This Court has stated that the trial court should take a substantial role in conducting Witherspoon voir dire of the venire panel in capital cases. Ballenger v. State, 667 So.2d at 1250; see Hansen v. State, 592 So.2d at 128-29; Lockett v. State, 517 So.2d at 1335.

136. Rule 3.05 of the Uniform Circuit and County Court Rules addresses voir dire examination of jurors. It provides as follows: RULE 3.05 VOIR DIRE In the voir dire examination of jurors, the attorney will question the entire venire only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge a particular verdict will be asked. Attorneys will not offer an opinion on the law. The court may set a reasonable time limit for voir dire.

137. This Court has directed that “notwithstanding a prospective juror's scruples, the court should inquire further whether the juror would follow its instructions and a fair verdict render according to the law and the evidence.” Hansen v. State, 592 So.2d at 128. See also Gray v. State, 472 So.2d 409, 421 (Miss.1985)(reversed on other grounds). “The court may exclude the juror where it is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” Hansen, 592 So.2d at 128; See Wainwright v. Witt, 469 U.S. 412, 424-25, 105 S.Ct. 844, 852-53, 83 L.Ed.2d 841 (1985); Pinkney v. State, 538 So.2d 329, 345 (Miss.1988). “Deference must be paid to the trial judge who sees and hears the juror.” Wainwright, 469 U.S. at 426, 105 S.Ct. at 853. This Court in Stringer v. State, 500 So.2d 928, 943 (Miss.1986), stated that the trial judge's determination that a juror is biased will not be reversed where the determination is based on the record. In Pinkney, this Court in relying on the authority of Stringer v. State, stated that “the trial judge committed no error in excusing those jurors whose position on the death penalty was not unmistakably clear.” Pinkney v. State, 538 So.2d at 344. [44]

138. In other words, the test for determining when a prospective juror's views on the death penalty justify his removal is whether the trial court finds that the “juror's views ‘would prevent or substantially impair the performance of his duties in accordance with his instruction and his oath’ ” and “is left with the impression that a prospective juror would be unable to faithfully and impartially apply the law.” Wainwright v. Witt, 469 U.S. at 426, 105 S.Ct. at 853; Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980); Manning v. State, 735 So.2d at 336-37; Hughes v. State, 735 So.2d 238, 249-50 (Miss.1999); Manning v. State, 726 So.2d at 1186-87; Evans v. State, 725 So.2d at 655-57; Wells v. State, 698 So.2d at 501-04; Doss v. State, 709 So.2d 369, 383-85 (Miss.1996); Jackson v. State, 684 So.2d at 1222; Simon v. State, 688 So.2d 791, 798-801 (Miss.1997); Davis v. State, 660 So.2d 1228, 1256-58 (Miss.1995); Foster v. State, 639 So.2d at 1277-78; Hansen v. State, 592 So.2d at 128; Willie v. State, 585 So.2d 660, 672-72 (Miss.1991); Turner v. State, 573 So.2d 657, 666-67 (Miss.1990); Pinkney v. State, 538 So.2d at 345; Lockett v. State, 517 So.2d at 1334-35; Fuselier v. State, 468 So.2d 45, 53-55 (Miss.1985).

139. “A jury selection procedure which gives the defendant ‘a fair opportunity to ask questions of individual jurors which may enable the defendant to determine his right to challenge that juror’ is proper.” McLemore v. State, 669 So.2d 19, 25 (Miss.1996) (quoting Peters v. State, 314 So.2d 724, 728 (Miss.1975)). [45]

140. The trial court has broad discretion in passing upon the extent and propriety of questions addressed to prospective jurors. McGilberry v. State, 741 So.2d 894, 912 (Miss.1999); Davis v. State, 684 So.2d 643, 651-52 (Miss.1996); Jones v. State, 381 So.2d 983, 990 (Miss.1980). [46]

141. We find nothing in the record that supports Stevens's contention that he was not given the opportunity to rehabilitate jurors and denied a fair opportunity to conduct voir dire on any relevant issue. The trial judge stated: “I let you rehabilitate them all you wanted to ... There's a certain limit on what you can do to rehabilitate them.”

142. This issue is wholly without merit.

XII. WHETHER IT WAS ERROR FOR THE COURT TO ALLOW PREJUDICIAL HEARSAY TESTIMONY? [47]

143. Stevens finally alleges that the trial court erred by allowing hearsay testimony through witness, Officer Tim Singley of the Marion County Sheriff's Department. Officer Singley testified that Stevens's wife, Lauren, told him the location of the shotgun in a tree which she learned from Stevens, and she took Officer Singley to the site. Stevens's attorney, Mr. Sweatt, stated “[Y]our Honor, we'd object to the hearsay portions of the statements. They're objectionable and should be stricken from the record.” The trial court sustained the objection and struck the testimony from the record. Stevens' attorney requested a mistrial. The trial court instructed the jury to disregard any statements that were made by a third party and the specifics of those statements. The trial court did not grant a mistrial but kept the objection under advisement. The trial court stated in the record that: I'm going to keep that motion under advisement and see whether there is, as the trial unfolds, if there is prejudicial. I mean, if it is prejudicial. If that the only way that gets in, it may be that we'll have a mistrial in the case.

144. After Lauren testified on direct examination as a witness for the State regarding: (1) how she learned of the shotgun's location, and (2) that she had told Officer Singley how to locate the shotgun, the trial readdressed the issue of mistrial.

145. The trial court stated: THE COURT: I think we have a motion still pending that I'm ready to rule on. We'll get that in the record. There was a motion for mistrial that had been made earlier concerning testimony of Officer Tim Singley. Based on the testimony that I've heard today [testimony of Lauren Stevens], that motion will be overruled, and there will be no mistrial in the matter.

146. On the motion for directed verdict after the State had finally rested, Stevens's attorney again raised the motion for mistrial which the trial court had denied. The record states as follows: MR. SWEATT: Also, there was a motion for a mistrial during Tim Singley's testimony for bringing out an inculpatory phrase through double hearsay. The Court overruled that motion, and we- THE COURT: I didn't overrule the motion until after the testimony of Mrs. Stevens. I think is was correct, it was inadmissible at that point in time. And I did instruct the jury to disregard it and sustained your objection after your objection was made. And I think that it doesn't matter now that she did testify and testified the same thing that was testified by him.

147. The issue of husband and wife privilege raised here again on appeal by Stevens has previously been addressed. Stevens on appeal also argues that the testimony from Officer Singley regarding Lauren Stevens's statements is hearsay. The trial court already found that there was hearsay and sustained the objection, ordered the record stricken and instructed the jury to disregard any third party statements. The trial court in the case sub judice admonished the jury and offered to add any instruction to the jury that Stevens' attorney could suggest. “This Court has repeatedly and consistently held that such action is sufficient to remove any prejudice resulting from the improper testimony.” Holly v. State, 671 So.2d 32, 38 (Miss.1996) (quoting Baine v. State, 604 So.2d 249, 256 (Miss.1992)). See also Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989); Marks v. State, 532 So.2d 976, 982 (Miss.1988) (refusal to grant mistrial was proper where the trial court sustained an objection and instructed the jury to disregard improper testimony). “Absent unusual circumstances, where objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, We will not find error.” Wright v. State, 540 So.2d 1, 4 (Miss.1989).

148. In the case sub judice, the trial court withheld ruling on the motion for mistrial until the court heard the testimony of Lauren Stevens. Lauren's testimony directly supported the testimony of Officer Singley which amounted to hearsay. In other words, the testimony of Officer Singley regarding what Lauren had told him was the same testimony provided by Lauren herself.

149. This issue is without merit. Any error here is harmless error at best. We find that the trial court properly sustained the objection to hearsay and admonished the jury to disregard the third-party statements.

XIII. IS THE IMPOSITION OF THE DEATH PENALTY EXCESSIVE OR DISPROPORTIONATE IN THIS CASE? [48]

150. Miss.Code Ann. § 99-19-105(3) (2000) requires this Court to perform a proportionality review when affirming a death sentence in a capital case. Section 99-19-105(3) states: (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; (c) Whether the sentence of death is excessive of disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and (d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstances was harmless error, or both

151. After reviewing the record in this appeal as well as the death penalty cases listed in the appendix, we conclude that Stevens's death sentence was not imposed under the influence of passion, prejudice, or any other factor. We also find that the evidence is more than sufficient to support the jury's finding of statutory aggravating circumstances. Further, comparison to other factually similar cases where the death sentences was imposed, the sentence of death is neither excessive nor disproportionate in this case. Finally, we find that the jury did not consider any invalid aggravating circumstances. Therefore, this Court affirms the death sentence imposed in this case. CONCLUSION

152. For these reasons, the judgment of the Marion County Circuit Court is affirmed.

153. CONVICTION OF FOUR COUNTS OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. BANKS and McRAE, P.JJ., SMITH, MILLS, WALLER, COBB and DIAZ, JJ., concur. PITTMAN, C.J., concurs in result only. (APPENDIX DEATH CASES AFFIRMED BY THIS COURT)

Stevens v. State, 867 So.2d 219 (Miss. 2003). (PCR)

Background: Defendant whose convictions and death sentence for shooting deaths of his ex-wife, her husband and two children was upheld on appeal, 806 So.2d 1031, applied for leave to seek postconviction relief.

Holdings: The Supreme Court, Easley, J., held that: (1) sentencing statute did not violate Eighth Amendment; (2) expert testimony that defendant possessed a diminished mental capacity was inadmissible; (3) burglary of trailer home and violence against children elevated killings to capital murder; and (4) indictment for capital murder put defendant on sufficient notice that prosecution would use statutory aggravating factors against him. Denied.

EASLEY, Justice, for the Court.

1. Benny Joe Stevens was charged with the shooting deaths of his ex-wife, her husband and two children. Stevens was convicted of four counts of capital murder on December 4, 1999, and sentenced to death on all four counts. The convictions and sentences were affirmed by this Court in Stevens v. State, 806 So.2d 1031 (Miss.2001), cert. denied, 537 U.S. 1232, 123 S.Ct. 1384, 155 L.Ed.2d 195 (2003). Stevens has now filed his application for post-conviction relief. FACTS

2. The murders of Wesley Reid, Glenda Reid, Heath Pounds and Dylan Lee, as well as the aggravated assault of Erica Stevens, took place on Sunday, October 18, 1998, in Marion County. Erica is the daughter of Benny Joe Stevens, and she lived with her mother, Glenda Reid, with her stepfather, Wesley Reid, and her brother, Dylan, in a trailer home in Marion County located on Shiloh Firetower Road in Foxworth, Mississippi. Glenda and Stevens had divorced when Erica was three years old. Benny Joe Stevens subsequently married Lauren Stevens (“Lauren”) in 1993 and thereafter gained custody of his daughters, Erica and Angela, in 1996. However, in August of 1998, Glenda regained custody of Erica. 806 So.2d at 1037. At trial, Lauren Stevens testified that her husband was expecting a workers' compensation settlement from a back injury claim and that he anticipated he would have to pay back child support from the settlement check. At the time of the murders, Stevens was unemployed and so was his wife.

3. On Sunday, October 18, 1998, Stevens and his brother, Ricky Stevens (“Ricky”), had gone in Stevens's Ford pick-up truck to play pool. Thereafter, Lauren received a telephone call from Ricky on a cell phone that afternoon to the effect that Stevens had driven into a ditch and wrecked the truck. Stevens appeared drunk to Lauren when she arrived to assist them. Stevens's truck was pulled out of the ditch, and Stevens went back home. Later that evening Lauren entered Stevens's bedroom, she saw her husband with his gun belt laid out on the bed and putting shotgun shells in the gun belt. Lauren also remembered seeing his .357 handgun. Stevens then took his guns and left the home in his truck.

4. On Sunday, October 18, 1998, Erica, Heath, Wesley, Glenda and Dylan were all at the trailer and had finished eating supper when Erica saw Stevens park his truck beside Wesley's truck in the backyard. No one was with Stevens. Erica saw Stevens get out of his truck. According to Erica, Wesley opened the sliding glass back door wide enough to stick his head out the door and called, “Benny Joe, Can I help you ?” Erica then heard a gunshot and Wesley scream, “[S]hit, he shot me.” Erica tried to rescue her brother and his friend but Stevens shot her in the back. She then hid in the trailer's master bath and watched helplessly as her mother was shot by Stevens. She then heard Benny Joe say, “[B]itch, I told you that I'd kill you one of these days.” Id. at 1038.

5. Erica climbed through a small window in the bathroom where she had been hiding and heard more gunshots while she was running away from the trailer. Erica went to a neighbor's house for help and collapsed at the door. Erica told the neighbors that her father had shot her mother, stepfather, brother and friend. Stevens returned to his home where his wife inquired, “[W]hat did you do?”, to which Stevens replied, “I just killed a family.” Id. at 1039. ANALYSIS 1. Batson challenge to peremptory strike of prospective jurors. [1]

6. Stevens asserts that the State improperly exercised peremptory strikes against two black veniremen and that the trial judge did not conduct the required analysis pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This issue was considered and rejected on direct appeal after this Court found that the trial judge properly determined that the reasons offered by the State were indeed race-neutral. 806 So.2d at 1045-48. The Court specifically held: The trial judge witnessed the challenges in court and could observe the demeanor of all involved as well as all other relevant circumstances in the case. We find that the trial court's findings are not clearly erroneous or against the overwhelming weight of the evidence. Therefore this contention is without merit. Id. at 1048. Consequently, this issue is now barred from consideration under the doctrine of res judicata pursuant to Miss.Code Ann. § 99-39-21(3) (Supp.2003). This procedural bar is applicable in capital cases. Foster v. State, 687 So.2d 1124, 1129 (Miss.1996). Constitutionality of the death penalty statutes. [2] [3]

7. Stevens asserts that the jury instructions given during the penalty phase of his trial were constitutionally defective in light of Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Stevens argues that Miss.Code Ann. § 99-19-101(7) improperly allows the commission of a felony to be used as an aggravating factor in determination of a death sentence, thereby lowering the level of culpability required to impose a death sentence. However, even Stevens acknowledges that the death penalty may be imposed as punishment for a killing which takes place during the commission of a felony. Stevens v. State, 806 So.2d at 1053. Stevens also argues that the capital sentencing scheme violates the Eighth Amendment because it potentially might allow one who merely participates in a felony to receive the death sentence for a killing he had no intent to commit.

8. This Court has previously determined that a sentencing scheme which permits imposition of the death penalty for certain felony murders without a finding of a specific intent to kill is not violative of either the Eighth Amendment or due process protections. Holland v. State, 705 So.2d 307, 319-20 (Miss.1997). The Court has also held that the “during commission of a felony” aggravating factor is not unconstitutional because other statutes prevent the sentencing body from imposing a punishment that is greater than the crime. Grayson v. State, 806 So.2d 241, 252 (Miss.2001). These issues are without merit.

9. Furthermore, these constitutional arguments were considered and rejected on direct appeal when this Court found that “the evidence unquestionably supports the finding that Stevens intended to kill his victims.” 806 So.2d at 1053. This Court held that the challenge to the constitutionality of Mississippi's statutory sentencing scheme was wholly without merit. Consequently, these issues cannot be relitigated in a post-conviction collateral relief action pursuant to Miss.Code Ann. § 99-39-21(3). 4. Proportionality of Stevens's death sentence. [4]

10. Stevens makes a cursory assertion that his death sentence is disproportionate to the crimes because of his mental state and allegedly diminished culpability such that the sentences violates the Eighth Amendment. Stevens argues that it is, or should be, unconstitutional to impose the death penalty against someone convicted of felony murder.

11. A variation on his previous Fourteenth and Eighth Amendment claims, this very same issue was raised by Stevens on direct appeal and dismissed without merit because this Court specifically found Stevens's death sentence to be neither excessive nor disproportionate. 806 So.2d at 1064. The issue is not only without merit, it also procedurally barred from consideration. Miss.Code Ann. § 99-39-21(3). 5. Evidence of diminished capacity. [5]

12. Stevens next claims that the trial court erred in excluding a defense psychiatrist's expert testimony that Stevens possessed a diminished mental capacity at the time of the crime. During the guilt phase, the trial judge ruled such expert testimony inadmissible since Stevens was not claiming insanity as a defense. The trial judge did however provide that such an expert opinion could be given at the sentencing phase. Stevens continues to argue that Dr. Sarah Deland should have been allowed to testify to his state of depression, his drug use and alcohol abuse because he was charged with a specific-intent crime.[6]

13. This same issue was raised on direct appeal where this Court affirmed the trial judge after finding that Stevens made no claim of insanity at trial. We hold that since Stevens does not allege that he lacked the ability to differentiate between right and wrong, the fact that he had been abusing alcohol, pain and anti-depressant medication should not have been presented to the jury to show that he lacked the ability to formulate specific intent on the guilt phase at trial. This issue is without merit. 806 So.2d at 1052. “[I]f a person, when sober, is capable of distinguishing between right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible and he may be convicted and sentenced for the crime.” Smith v. State, 445 So.2d 227, 231 (Miss.1984). Quite simply, diminished capacity is not a defense to a criminal charge in this State. Cannaday v. State, 455 So.2d 713, 720 (Miss.1984). Not only is the issue without merit, it procedurally barred from consideration. Miss.Code Ann. § 99-39-21(3). 6. Limiting instructions on statutory aggravating circumstance. [7]

14. Stevens contends that the jury instruction issued in connection with the “especially heinous, atrocious and cruel” aggravating circumstance was both unconstitutionally vague and also unsupported by the evidence. Stevens acknowledges that this Court has consistently held that such instructions pass constitutional muster. Puckett v. State, 737 So.2d 322, 359-60 (Miss.1999). Stevens also concedes that this matter was considered and rejected on direct appeal. The issue is therefore barred from consideration on collateral review. Miss.Code Ann. § 99-39-21(3).

15. As for the sufficiency of the evidence, this Court ruled: We find that there is ample evidence presented to establish that the crimes committed by Stevens fit squarely within the limiting definition of heinous, atrocious and cruel provided in the jury instruction given by the trial court. Wesley was shot four times with two different guns. Wesley called out for help and asking God for help. Glenda pleaded for her children's safety before being shot in the head. Two young boys, Heath and Dylan, were both brutally murdered. Heath, age twelve, was shot twice, the first shot to the face with the second fatal shot to the chest severing his spine. Dylan was age eleven when he died. Erica, Stevens's daughter, was shot in the back, but she managed to escape the massacre. Erica testified that Stevens told her mother, Glenda, before he killed his ex-wife that “[B]itch, I told you I would kill you one of these days.” Stevens confessed to his wife, Lauren, that he had “just killed a family.” 806 So.2d at 1060. The issue is without merit. 7. The marital privilege. [8]

16. Stevens argues that it was error for the trial court to allow Glenda Stevens to testify that he confessed to the slayings. This Court rejected this same contention on direct appeal after finding that M.R.E. 504(d)(1) contains an exception to the privilege where one spouse is charged with a crime against a minor child. 806 So.2d at 1050. The issue is both without merit and procedurally barred from further consideration. Miss.Code Ann. § 99-39-21(3). 8. Felony child abuse as an aggravating circumstance. [9]

17. Stevens again argues, as he did on direct appeal, that a capital murder charge was not justified because there was no evidence of any separate act of child abuse apart from the actual killings. This Court relied on its prior holding in Smith v. State, 499 So.2d 750, 753-54 (Miss.1986). We decline to adopt the merger doctrine and hold that under our felony-murder statute, the underlying felony does not merge into the murder. Our statutory provisions dealing with murder and the particular felony, in this case, burglary, are intended to protect different societal interests. When the appellant entered the home of [a person] with the intent to commit a crime therein, i.e., to kill [the victim], the burglary was complete and the subsequent killing of [the victim] elevated the crime of murder to that of capital murder. We find the appellant's argument unpersuasive. 806 So.2d at 1045 (quoting Smith ). This Court found that both the burglary and the violence against the children elevated the killings by Stevens to capital murder. This issue is both without merit and procedurally barred. Miss.Code Ann. § 99-39-21(3). 9. Double jeopardy. [10]

18. Stevens also asserts that the use of felony child abuse and burglary charges as underlying offenses for capital murder placed him in double jeopardy of prosecution. As previously discussed, the Court ruled on direct appeal that, because the underlying offenses did not merge into the murders, the use of those underlying felonies in the indictment did not place him in double jeopardy. This issue is without merit and procedurally barred. 10. Cumulative error.

19. Stevens argues that the cumulative effect of the aforementioned alleged errors denied him a fair trial. As discussed, the issues raised heretofore are without merit. Therefore, there can be no cumulative error. This issue is without merit. 11. Proportionality of the death sentence. [11]

20. Stevens contends again that his death sentences are disproportionate to the crimes. This argument was specifically considered and rejected on direct appeal: After reviewing the record in this appeal as well as the death penalty cases listed in the appendix, we conclude that Stevens's death sentence was not imposed under the influence of passion, prejudice, or any other factor. We also find that the evidence is more than sufficient to support the jury's finding of statutory aggravating circumstances. Further, comparison to other factually similar cases where the death sentences was imposed, the sentence of death is neither excessive nor disproportionate in this case. Finally, we find that the jury did not consider any invalid aggravating circumstances. Therefore, this Court affirms the death sentence imposed in this case. 806 So.2d at 1064. The issue is without merit and is procedurally barred pursuant to Miss.Code Ann. § 99-39-21(3). 12. Aggravating factors not charged in the indictment. [12]

21. Stevens argues that his death sentences must be vacated because the aggravating circumstances which charged capital murder were not included in the indictment. Stevens 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 which the Court held unconstitutional a sentencing scheme where a judge rather than a jury determined whether there were sufficient aggravating circumstances to warrant imposition of the death penalty.

22. Apprendi fired several shots into the home of an African-American family in New Jersey and was indicted on state charges of shooting and possession of firearms. He pled guilty to two counts of possession of a firearm for an unlawful purpose and one count of possession of an explosive. After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on the basis that it was a hate crime. Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The Supreme Court agreed, stating: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

23. However, the Court specifically stated that “Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question separately today.” Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348. The U.S. Supreme Court found in Apprendi that New Jersey's statutory scheme would allow a jury to convict a defendant of a second degree offense of possession of a prohibited weapon, and then, in a separate subsequent proceeding, allow a judge to impose a punishment usually reserved for first degree crimes made on the judge's finding based on a preponderance of the evidence.

24. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue of whether the Arizona capital sentencing process of a jury deciding guilt and a judge making findings on aggravating factors as upheld in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), could survive Apprendi. The Supreme Court decided it could not: [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. * * * “The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.... If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. Ring, 536 U.S. at 609, 122 S.Ct. 2428.

25. Stevens contends that because Ring found the Apprendi decision persuasive, the U.S. Supreme Court necessarily adopted every other rule stated in Apprendi for state capital sentencing proceedings, specifically the rule that the Constitution requires that aggravating factors be listed in indictments. The Court in Ring specifically noted what was being decided and what was not. “Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428. Ring did not contend that his indictment was constitutionally defective.

26. Further, the retroactive application of Ring is in doubt. Although a divided en banc Ninth Circuit has ruled in Summerlin v. Stewart, 341 F.3d 1082, 1121 (9th Cir.2003), cert. granted sub nom. Schriro v. Summerlin, 540 U.S. 1045, 124 S.Ct. 833, 157 L.Ed.2d 692 (2003), that Ring announced a substantive rule of law which may be applied retroactively to federal habeas corpus review proceedings, the Eleventh Circuit has held that Ring is not retroactive absent an express pronouncement to that effect. Turner v. Crosby, 339 F.3d 1247, 1279-86 (11th Cir.2003). Until instructed otherwise by the Supreme Court, we decline to apply Ring retroactively.

27. The State is correct in its assertion that 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)). 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. Id. at 804-05. This issue is without merit.

CONCLUSION

28. For these reasons, we deny all of Stevens's applications for leave to seek post-conviction relief.

Stevens v. Epps, 618 F.3d 489 (Miss. 2010). (Habeas)

Background: Following denial of his petition for state post-conviction relief, 867 So.2d 219, petitioner, who had been convicted of capital murder and sentenced to death for the murders of four people in Mississippi, sought federal habeas relief, asserting that the prosecutor peremptorily struck a black prospective juror because of her race. The United States District Court for the Southern District of Mississippi, Keith Starrett, J., 2008 WL 4283528, denied the petition, and petitioner appealed. Certificate of appealability (COA) was granted, and petitioner subsequently requested an expansion of the COA.

Holdings: The Court of Appeals, E. Grady Jolly, Circuit Judge, held that: (1) petitioner was not precluded from relying on the circumstances surrounding the strike of the first black prospective juror tendered to the state to argue that the strike of the second black prospective juror tendered to the state was discriminatory, notwithstanding the fact that he requested and was granted a COA limited to the strike of the second juror; (2) petitioner failed to show purposeful discrimination in the strike of the first juror; (3) the Mississippi Supreme Court's decision that the trial judge allowed the strike of the second juror because it implicitly credited the prosecutor's assertion of inattentiveness, and its decision to defer to the trial judge's implicit factual finding, was not an unreasonable application of the Supreme Court's Batson and Snyder decisions; and (4) petitioner was not entitled to expand the COA to include his claim that he was denied his right to due process because, although counsel was appointed to represent him in state post-conviction proceedings, that representation was so extremely deficient that he was denied the possibility of meaningful relief. Denial of habeas relief affirmed; request for expanded COA denied. Haynes, Circuit Judge, filed opinion concurring in the judgment.

E. GRADY JOLLY, Circuit Judge:

Benny Joe Stevens was convicted of capital murder and sentenced to death for the 1998 murders of four people in Mississippi. The district court granted a certificate of appealability (“COA”) for Stevens's claim that the prosecutor peremptorily struck a black prospective juror because of her race. Stevens has requested an expansion of the COA for his claim that the state post-conviction process was so ineffective that it violated his right to due process. We AFFIRM the district court's denial of habeas relief and DENY Stevens's request to expand the COA.

I.

Stevens shot his daughter, his ex-wife, her husband, her eleven-year-old son, and the son's twelve-year-old playmate as they were surprised by, or as they attempted to escape, his lethal anger. Heads were blown off and bodies were mutilated by the shotgun blasts of this unrepentant killer. These violent murders occurred in Marion County, Mississippi, in 1998. Because the local community was inflamed, Stevens's trial was moved north to Madison County, Mississippi. His daughter was the only survivor. She testified against Stevens at trial. The jury convicted Stevens of four counts of capital murder and he was sentenced to death. His conviction was affirmed on direct appeal and the Supreme Court denied certiorari. Stevens v. State, 806 So.2d 1031 (Miss.2001), cert. denied, 537 U.S. 1232, 123 S.Ct. 1384, 155 L.Ed.2d 195 (2003). Stevens's petition for state post-conviction relief was also denied. Stevens v. State, 867 So.2d 219 (Miss.2003), cert. denied, 543 U.S. 858, 125 S.Ct. 222, 160 L.Ed.2d 96 (2004). The district court denied Stevens's petition for federal habeas relief, but granted a COA for his claim that the prosecutor engaged in purposeful racial discrimination by striking a black prospective juror. Stevens seeks an expansion of the COA for his claim that the state post-conviction process was so ineffective that it violated his right to due process.

II.

We address first the claim for which the district court granted a COA (racial discrimination in jury selection), and then turn to consider Stevens's request for an expansion of the COA for his due process claim.

A.

The district court granted a COA for Stevens's claim that the prosecutor peremptorily struck a black prospective juror because of her race. Purposeful racial discrimination in the use of peremptory strikes of prospective jurors violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson claims are evaluated using a three-step analysis:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citations omitted). “[I]n considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (citing Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 239, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)).

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), this court may grant habeas relief on a claim adjudicated on the merits in state court only if the state court's adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... 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)(1)-(2). The state court's factual findings are presumed to be correct, unless the petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The State used six of its twelve peremptory challenges. Two were used to strike black prospective jurors and four were used to strike white prospective jurors. The jury that was selected consisted of eleven white persons and one black person, with two white alternate jurors.FN1 FN1. Stevens is white, and all of the victims were white. The Supreme Court has held that a white defendant may object to the race-based exclusion of black jurors. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that a criminal defendant has standing to object to the race-based exclusion of jurors irrespective of whether the defendant and the excluded jurors are of the same race).

Ragsdale was the first black prospective juror tendered to the State. FN2 The prosecutor initially challenged Ragsdale for cause because he listed a Jackson address on his juror questionnaire.FN3 The trial was held in Madison County, and the prosecutor asserted that because Jackson is in Hinds County, Ragsdale was not qualified to serve on the jury. The trial court stated that although Ragsdale had a Jackson address, he could still be registered to vote in Madison County. Accordingly, the trial judge refused to excuse Ragsdale for cause, but allowed the State to exercise a peremptory strike to exclude him from the jury. The prosecutor then stated that Ragsdale should be excused because he “was against the wall, and he was sleeping the whole time, didn't pay attention.” The trial judge responded, “I didn't notice that.”

FN2. The prospective jurors in this case were questioned as a group. Counsel exercised their peremptory strikes at the conclusion of voir dire. FN3. Ragsdale's juror questionnaire is not in the record. Defense counsel asserted a Batson claim, arguing that “if [Ragsdale] dozed in the five- or six-hour voir dire ceremony, that's not reason to strike him.” The prosecutor responded that there had to be a “pattern of discrimination” before he had to give a reason for the strike. Stevens's counsel did not challenge the prosecutor's incorrect statement of the law.FN4 The trial judge stated that “even if it were a pattern, I would say that the fact that they thought he had been sleeping and that he was from a different county, residing in a different county, that would be a sufficient reason to excuse him. But it will be a strike rather than for cause.” Stevens apparently does not dispute that Ragsdale slept during voir dire. In addition to defense counsel's remarks at the time of the strike, in his reply brief on direct appeal, Stevens stated that “[a] person who might doze in a warm room during a long voir dire process must not be denied the right to participate in the trial.” FN4. Although an inference of discrimination may be drawn from a pattern of strikes, see Batson, 476 U.S. at 97, 106 S.Ct. 1712, “the Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder, 552 U.S. at 478, 128 S.Ct. 1203 (brackets, internal quotation marks, and citation omitted).

Olive was the second black juror tendered to and peremptorily struck by the State. Stevens raised a Batson claim, arguing that because Olive was the second black prospective juror struck by the State, “it's showing a pattern.” The trial court asked the prosecutor to state the reason for the strike. The prosecutor argued that there was no pattern because Ragsdale was observed sleeping and had a Jackson address. The prosecutor said that he struck Olive because she “was inattentive” and did not complete her juror questionnaire:

She didn't fill out half of it. She did not follow the directions of the Court. And that backs up my opinion and observation that she was inattentive. She responded to no questions from either side, and she didn't fill out her complete form. Stevens's counsel pointed out that many of the prospective jurors did not fully complete the juror questionnaires.FN5 The prosecutor responded,

FN5. Four of the white persons who served on the jury left one or more of the questions blank, including the same question that Olive left blank. Three other white jurors failed to fully answer the questionnaire, leaving at least one question blank. Well, I'm just backing up my original statement she was inattentive and looked like she was preoccupied the whole time. And she didn't fill out her form. The second page, Judge. The trial court found that Olive had completed her questionnaire, leaving blank only the question asking for membership in fraternal organizations. The prosecutor responded: My main reason was that she was inattentive, seemed to be totally preoccupied. And, again, we're not showing a pattern of discrimination.

Defense counsel did not challenge the prosecutor's assertion that Olive was inattentive or preoccupied. In fact, defense counsel seemed to acknowledge that the prosecutor thought Olive was inattentive; he stated: “We don't think that's enough reason for them to strike her because they think she was unattentive [ sic] and didn't fill out her form.” The trial judge did not make any explicit ruling with respect to whether Olive was inattentive or whether he believed that the prosecutor thought she was inattentive. Instead, the judge asked whether there were more black prospective jurors in the jury pool. The prosecutor responded that the State planned to accept Brooks. However, Brooks had already been struck for cause the previous day. Defense counsel pointed out that there was not another black person on the panel until number 41, Melvin Bouldin. The prosecutor said the State would accept Bouldin. The Court ruled: “With the understanding you're going to accept Bouldin, then I'm going to go ahead and allow this one to be struck as not showing a pattern, then.”

On direct appeal, the Mississippi Supreme Court stated: We hold that the fact that juror Rag[s]dale no longer resided in Madison County to be a valid race neutral reason to allow the trial court to grant the State's peremptory strike of juror Rag[s]dale. Residency is not a characterization based on race. In order to be qualified as a competent juror, residency in the county is required .... .... It may be argued that one or all of the race-neutral reasons [for the strike of Olive] expressed by the defense [ sic] are acceptable. However, it must be remembered that this Court has held that the trial judge is afforded great deference in determining if the expressed reasons for exclusion of a venire-person from the challenged party is [ sic] in fact race-neutral ....

The trial judge witnessed the challenges in court and could observe the demeanor of all involved as well as all other relevant circumstances in the case. We find that the trial court's findings are not clearly erroneous or against the overwhelming weight of the evidence. Therefore this contention is without merit. Stevens v. State, 806 So.2d at 1047-48 (paragraph numbers omitted). Stevens raised his Batson claim again in his state application for post-conviction relief. The Mississippi Supreme Court held that the issue had been considered and rejected on direct appeal and was therefore “barred from consideration under the doctrine of res judicata.” Stevens v. State, 867 So.2d at 222.

Stevens raised his Batson claim again in his federal habeas petition. The district court observed that the trial court and counsel for both sides mistakenly thought that Batson requires a finding that the prosecutor has engaged in a pattern of discriminating against black jurors. However, the district court concluded that the Mississippi Supreme Court had properly applied Batson to the facts, without reference to whether the prosecutor had engaged in a pattern of discrimination.

With respect to the strike of Ragsdale, the district court noted that, although the parties did not mention it, George Patterson, a black prospective juror who listed a Jackson address on his juror questionnaire, was excused for cause on the first day of jury selection (before the strikes of Ragsdale and Olive). The record reflects that Patterson had notified the trial judge and one of the prosecutors that he lived in Hinds County. After objecting initially, defense counsel stated that he would not object if Patterson did not live in Madison County. The district court rejected Stevens's contention that because the trial court had qualified the entire venire at the beginning of voir dire, Ragsdale was found to have been competent to serve on the jury and could not have been disqualified based on his residence in another county. The district court noted that Stevens's contention was not raised in the trial court and that it ignored the fact that George Patterson was also struck, after the jury was qualified, because he lived in Hinds County. The district court held that the record does not support Stevens's claim that the trial court rejected the prosecutor's assertion that Ragsdale lived in another county. According to the district court, the trial court merely stated that Ragsdale “could still be a registered voter” in Madison County. Furthermore, the district court stated that the trial judge did not reject the prosecutor's claim that Ragsdale slept through voir dire, but only stated that he had not noticed it.

The district court rejected Stevens's contention that the prosecutor's failure to question Ragsdale about his address suggested that this reason given by the prosecutor for the strike was pretextual. The district court stated that there was nothing in the record to cast doubt on either Ragsdale's actual residence or whether he was sleeping during voir dire. Furthermore, Patterson was excused for a similar reason the day before, with no further examination and no objection by the defense and there was no indication that similarly-situated white jurors were accepted.FN6 Accordingly, the district court concluded that the record does not support Stevens's claim that the Mississippi Supreme Court's findings with regard to Ragsdale were unreasonable.

FN6. The State accepted at least one white prospective juror who listed a street address, but no city, on her juror questionnaire. She did not serve on the jury, however, because the defense struck her peremptorily. Bouldin, the only black juror accepted by the State, also listed a street address but no city on his questionnaire. No one raised any questions about his residence.

With respect to Olive, the district court stated that the prosecutor's initial reason for the strike was that Olive had been inattentive, and the fact that the other reason (failure to complete the juror questionnaire) was rejected by the trial court does not mandate a finding that the prosecutor's reliance on inattentiveness as a reason for the strike was pretextual. The district court found that the prosecutor's acceptance of Melvin Bouldin as a juror supported the finding of non-discriminatory intent because the prosecutor committed to the selection of a black juror early in the process, when he was exercising his second strike.

The district court noted that Stevens's argument that the district attorney's office that prosecuted his case had a history of racial discrimination in jury selection in other cases was not raised at trial or on direct appeal, although it was included in his application for post-conviction relief, which the Mississippi Supreme Court denied on grounds of res judicata. The district court stated that although it could have held that the argument was barred from consideration, out of an abundance of caution, it analyzed the issue on its merits and rejected it, stating: There were two occasions when the Mississippi Supreme Court found that discrimination occurred in the Fifteenth Judicial District in jury selection over the ten years prior to the trial. There had been hundreds of other trials in the District, and no other finding of discrimination has been made. The two attorneys who had been charged did not participate in the trial, and the attorneys who did have never been found to have used discriminatory practices in jury selection. Additionally, no pattern of discrimination had been shown, and the challenged juror was not the same race as the defendant. While there may be some smoke left over from prior years, there was nothing shown in Stevens's case that indicated that any discriminatory tactics were used in jury selection by the district attorney's office.

Stevens requested, and the district court granted, a COA only with respect to the strike of Olive. The State therefore contends that this court does not have jurisdiction to consider the strike of Ragsdale. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir.1997) (court has jurisdiction to address only the issue specified in the COA granted by the district court). Stevens argues, however, that the prosecutor's treatment of Ragsdale is relevant to the analysis of the strike against Olive.

Although Stevens has challenged the strike of Ragsdale throughout the proceedings (both trial and post-conviction), this is his first attempt to argue that the strike of Ragsdale has any bearing on the analysis of the strike of Olive (other than his assertion in the trial court that the strike of Olive showed a “pattern” based on the previous strike of Ragsdale). When attempting to prove purposeful discrimination under the third step of the Batson analysis, the Supreme Court has said that the “defendant may rely on ‘all relevant circumstances' to raise an inference of purposeful discrimination.” Miller-El II, 545 U.S. at 240, 125 S.Ct. 2317 (quoting Batson, 476 U.S. at 96-97, 106 S.Ct. 1712); see also Hernandez v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (an “invidious discriminatory purpose may often be inferred from the totality of the relevant facts”) (brackets, internal quotation marks, and citation omitted). In Reed v. Quarterman, 555 F.3d 364, 372-75 (5th Cir.2009), this court concluded that Miller-El II requires a comparative juror analysis even if it was not presented in state court. In Snyder, the Supreme Court stated that because “all of the circumstances that bear upon the issue of racial animosity must be consulted,” the court may consider the strike of one juror for any relevance it might have regarding the strike of another juror. 552 U.S. at 478, 128 S.Ct. 1203 (citing Miller-El II, 545 U.S. at 239, 125 S.Ct. 2317). Accordingly, Stevens is not precluded from relying on the circumstances surrounding the strike of Ragsdale to argue that the strike of Olive was discriminatory, notwithstanding the fact that he requested and was granted a COA limited to the strike of Olive.

Stevens contends that there is no evidence that Ragsdale was not a resident of Madison County and that, if there were, the trial judge would have been required to grant the State's challenge for cause. He argues that the district court's reliance on the fact that George Patterson had been struck for cause for similar reasons is misplaced. According to Stevens, Patterson was struck for cause because he notified the court and counsel that he was a resident of Hinds County. Stevens points out that part of the City of Jackson is within Madison County, so a person can have a Jackson address but still live in Madison County. Stevens also points out that thirty prospective jurors did not list any city on the address portion of their juror questionnaires. He asserts that the prosecutor's failure to question them or seek to strike them on the issue of residence is further evidence of a discriminatory motive as to Ragsdale.

The fact that the prosecutor did not question Ragsdale about his residence is some evidence suggesting that his explanation is pretextual. See Miller-El II, 545 U.S. at 246, 125 S.Ct. 2317 (the prosecution's failure to conduct any meaningful voir dire examination on a subject it claims to be “concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination”) (internal quotation marks and citation omitted); Reed, 555 F.3d at 376 (“if the State asserts that it was concerned about a particular characteristic but did not engage in meaningful voir dire examination on that subject, then the State's failure to question the juror on that topic is some evidence that the asserted reason was a pretext for discrimination”). Furthermore, the record reflects that the prosecutor accepted at least two other prospective jurors who did not list a city when providing their addresses on their juror questionnaires. However, one of those two jurors (Melvin Bouldin) is black. Accordingly, this is not very strong evidence of pretext with respect to the strike of Ragsdale. See id. (“If the State asserts that it struck a black juror with a particular characteristic, and it also accepted nonblack jurors with that same characteristic, this is evidence that the asserted justification was a pretext for discrimination, even if the two jurors are dissimilar in other respects.”).

Nevertheless, Stevens has not shown purposeful discrimination in the strike of Ragsdale. Accordingly, the prosecutor's strike of Ragsdale does not support Stevens's claim that the prosecutor struck Olive because of her race. The first flaw in Stevens's argument is that Ragsdale's residence was not the only basis for the strike. The prosecutor's second reason was that Ragsdale was observed sleeping during voir dire. Second, the trial judge's ruling indicates that he found the prosecutor's reasons credible: “I would say that the fact that they thought he had been sleeping and that he was from a different county, residing in a different county, that would be a sufficient reason to excuse him.” As we have already noted, Stevens did not challenge the prosecutor's assertion that Ragsdale was sleeping; instead, he argued that sleeping was not a reason to exclude Ragsdale from jury service. Accordingly, even if we were to assume that the first reason given for the strike (residence) is pretextual, Stevens did not dispute the prosecutor's additional reason for the strike (sleeping during voir dire). See Woodward v. Epps, 580 F.3d 318, 340 (5th Cir.2009) (holding that where prosecutor gave more than one reason for striking juror, and court could not presume, in the absence of a trial court finding, that the trial court credited the prosecutor's assertion of demeanor as one of those reasons, petitioner's Batson claim nevertheless failed because petitioner offered no rebuttal to prosecutor's first race-neutral reason for the strike); United States v. Brown, 553 F.3d 768, 796 (5th Cir.2008) (where prosecutor struck a black venire member who had a conviction for resisting arrest but did not strike a white venire member who had a DUI conviction, defendant's Batson claim nevertheless failed because the prosecutor gave a second, legitimate reason for striking the black juror: his failure to report on his juror questionnaire a second conviction for assault).

We now turn to consider Stevens's claim of discrimination with respect to the strike of Olive. He contends that the trial judge did not make a finding that Olive was inattentive, but instead allowed the strike because the prosecutor had agreed to accept another black juror (Melvin Bouldin). Stevens argues that this “trading” of one black juror for another black juror violates the equal protection clause, because Olive was struck, not only because of her own race, but also because of Bouldin's race; that is, the trial judge allowed Olive to be struck only because the State promised to accept the next black juror, Bouldin. Thus, according to Stevens, Bouldin's race was the only reason that the trial judge allowed Olive to be struck.

The State responds that although the trial court rejected one of the reasons given by the prosecution for striking Olive (incomplete juror questionnaire), it accepted the other (inattentiveness). The State also asserts that there was no trade of one black juror for another because, at the time that Olive was struck, there was no assurance that jury selection would not be completed before Bouldin was reached in the selection process.

The record contains no explicit support for the State's assertion that the trial court allowed the strike of Olive based on inattentiveness. The only reason that the trial court gave for allowing the strike was that the prosecutor had agreed to accept the next black juror (Bouldin). The trial judge stated: “With the understanding you're going to accept Bouldin, then I'm going to go ahead and allow this one to be struck as not showing a pattern.” The trial judge made no finding on the record that Olive was inattentive or that the prosecutor was credible in asserting that he struck Olive for inattentiveness. Nevertheless, because the trial court allowed Olive to be struck after having rejected the prosecutor's assertion that Olive did not complete her juror questionnaire, it was not unreasonable for the Mississippi Supreme Court to conclude that the trial court implicitly credited the prosecutor's assertion that he struck Olive because she was inattentive.

“As a federal habeas court, we are bound by the state [trial] court's factual findings, both implicit and explicit.” Young v. Dretke, 356 F.3d 616, 629 (5th Cir.2004). Furthermore, we may not grant habeas relief unless the Mississippi Supreme Court's adjudication of Stevens's Batson claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... 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)(1)-(2). The AEDPA thus requires that we defer not only to the Mississippi Supreme Court's determination that the trial court implicitly found that the prosecutor did not engage in purposeful racial discrimination in peremptorily striking Olive, but also to the trial court's implicit factual finding that the prosecutor was credible when he stated that the main reason he struck Olive was because he thought she was inattentive.

Stevens argues, however, that in the absence of a finding by the trial judge, this court cannot presume that the trial judge credited the prosecutor's assertion that Olive was inattentive. In Snyder, the Supreme Court said that in the absence of a finding by the trial judge, the Court “cannot presume that the trial judge credited” the prosecutor's assertion that the prospective juror was nervous. 552 U.S. at 479, 128 S.Ct. 1203. The Court stated that when a peremptory challenge is based on a potential juror's demeanor, “the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Id. at 477, 128 S.Ct. 1203. In Thaler v. Haynes, ---U.S. ----, 130 S.Ct. 1171, --- L.Ed.2d ---- (2010), the Supreme Court summarily reversed this court's interpretation of Batson and Snyder as establishing a rule “that a demeanor-based explanation for a peremptory challenge must be rejected unless the judge personally observed and recalls the relevant aspect of the prospective juror's demeanor.” Id. at 1174. The Supreme Court explained that the problem in Snyder was not that the trial judge did not observe or could not recall the juror's demeanor. Id. Instead, the problem was that the prosecutor gave two reasons for the strike, “one of which was based on demeanor ( i.e., that the juror had appeared to be nervous), and the trial judge overruled the Batson objection without explanation.” Id. (citing Snyder, 552 U.S. at 478-79, 128 S.Ct. 1203). The record did not support the explanation that was not based on demeanor and, in the absence of a finding by the trial judge, the Court stated that it could not “presume that the trial judge credited” the prosecutor's assertion that the prospective juror was nervous. See Snyder, 552 U.S. at 479, 128 S.Ct. 1203.

Stevens's case is similar to Snyder in that the trial court in Stevens's case made no finding with respect to the demeanor-based reason (inattentiveness) for the peremptory strike of Olive. Its only stated reason for allowing the strike was the prosecutor's agreement to accept the next black prospective juror, Bouldin. Stevens thus relies on Snyder to argue that, because of the absence of any finding by the trial judge, it was unreasonable for the Mississippi Supreme Court to “presume that the trial judge credited” the prosecutor's assertion that Olive was inattentive.

We find Stevens's case to be distinguishable from Snyder. It is true that there are some similarities: In both cases, the prosecutors offered two reasons for the challenged strikes, and in both cases, one of the reasons offered for each strike was based on the prospective juror's demeanor (nervousness in Snyder and inattentiveness in Stevens's case). The similarities end there, however. In Snyder, the trial judge overruled the Batson objection without making any findings as to either of the reasons given by the prosecutor for the strike. The Supreme Court concluded that the non-demeanor-based reason given by the prosecutor in Snyder was pretextual, and it refused to presume that the trial court had allowed the strike based on the juror's demeanor in the absence of any finding by the trial court. In Stevens's case, unlike in Snyder, the trial court expressly found that one of the reasons offered by the prosecutor for the strike of Olive-failure to complete the juror questionnaire-was invalid, but it nevertheless allowed the strike. Under these circumstances, the Mississippi Supreme Court did not unreasonably determine that because the trial judge allowed the strike, it must have implicitly credited the prosecutor's assertion that he believed Olive was inattentive. This implicit factual determination is presumptively correct under the AEDPA. Young, 356 F.3d at 629.

Furthermore, although Stevens's counsel challenged the prosecutor's assertion that Olive did not complete her juror questionnaire in the trial court, he did not make any attempt to rebut the prosecutor's assertion that Olive was inattentive. Instead, as we have noted, he argued that inattentiveness was not “enough reason for them to strike her.” This court has rejected Batson claims involving similar circumstances, where more than one reason is given for a strike, and the Batson challenger fails to rebut one of the reasons. In Woodward, the prosecutor explained that he struck one prospective juror because she was unresponsive, hostile, and had relatives who worked in the prison system. 580 F.3d at 340. Because the trial court made no finding with respect to hostility, our court did not presume that the trial court credited the prosecutor's assertion of that reason for the strike. Id. Nevertheless, because Woodward did not offer any rebuttal to the prosecutor's assertion that the prospective juror was unresponsive, our court concluded that the state court's decision that the strike was not discriminatory was not unreasonable. Id. In Brown, the prosecutor struck a black venire member who had a conviction for resisting arrest, but did not strike a white venire member who had a DUI conviction. 553 F.3d at 796. This court concluded that the defendant's Batson claim nevertheless failed, because the prosecutor had given a second, legitimate reason for the strike of the black venire member: his failure to report on his juror questionnaire a second, more recent criminal conviction. Id.

The final reason Stevens cites in support of his Batson claim is the district attorney's office's history of racial discrimination in jury selection.FN7 The alleged prior pattern of discrimination in this county also was not raised before the state court and, therefore, is not before us. Were we to examine it, we find no reversible error in the district court's assessment of this evidence.

FN7. As further evidence of the prosecutor's racial motive in striking Olive, Stevens points to a comment that the prosecutor made in connection with the prosecutor's Batson claim that the defense was discriminating against female jurors on the basis of their gender. After defense counsel explained that he struck a female juror because her middle name indicated that she might be related to the warden at the prison in Columbia, Mississippi, the prosecutor responded: “If that's acceptable, then every challenge we call for a black man, will [ sic] use their middle name and say he's related to somebody on death row.” The State counters that the prosecutor was not making a racial remark, but instead was attempting to show a lack of basis for the defense strikes of females. The State asserts that, taken in context, the comment does not show any racial animus and it is not an indication that the prosecutor's reason for the strike of Olive was pretextual. We note that Stevens did not cite this remark by the prosecutor in support of his Batson claim in the trial court and thus we will not consider it.

Having considered all of the circumstances, we conclude that the Mississippi Supreme Court's decision that the trial judge allowed the strike of Olive because it implicitly credited the prosecutor's assertion of inattentiveness, and its decision to defer to the trial judge's implicit factual finding, is not an unreasonable application of Batson and Snyder. Inattentiveness is a race-neutral reason. Defense counsel did not dispute the prosecutor's assertion that Olive was inattentive; instead, he argued that inattentiveness was not a valid reason to strike her. Although the trial court did not make an express factual determination that Olive was inattentive, or that the prosecutor credibly asserted that reason as a basis for the strike, it nevertheless permitted the strike after having rejected the only other reason that the prosecutor offered for the strike. Under AEDPA, deference is due to the trial judge's implicit finding that the prosecutor credibly asserted inattentiveness as a reason for the strike. We now turn to consider Stevens's request for an expansion of the COA.

B.

Stevens asks us to expand the COA to include his claim that he was denied his right to due process because, although counsel was appointed to represent him in state post-conviction proceedings, as is his right under Mississippi law, that representation was so extremely deficient that he was denied the possibility of meaningful relief.

To obtain a COA, Stevens must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, he must demonstrate that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El I, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. The Supreme Court has instructed that, in making the decision whether to grant a COA, the court must limit its examination to a “threshold inquiry,” which consists of “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 327, 336, 123 S.Ct. 1029. The court cannot deny a COA because it believes the petitioner ultimately will not prevail on the merits of his claims. Id. at 337, 123 S.Ct. 1029. On the other hand, however, “issuance of a COA must not be pro forma or a matter of course.” Id. “While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner's favor.” Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir.2005) (brackets, internal quotation marks, and citations omitted).

Stevens acknowledges that there is no constitutional right to the provision of capital post-conviction counsel. He contends, however, that the Mississippi Supreme Court held that the Mississippi Constitution provides such a right. He asserts that the Mississippi Legislature, by creating the Mississippi Office of Capital Post-Conviction Counsel (MOCPCC) to provide legal representation for death-sentenced prisoners in post-conviction proceedings, recognized that right and, in so doing, created a life and liberty interest that is protected by the due process clause. He insists that he is not arguing that his state post-conviction counsel was ineffective. Instead, he asserts that he was denied his state law right to the assistance of post-conviction counsel as a result of inadequacies in the MOCPCC, including lack of funding, personnel problems, and interference by the Chief Justice of the Mississippi Supreme Court and the Mississippi Attorney General's office.

Stevens relies on Jackson v. State, 732 So.2d 187 (Miss.1999), for the proposition that in Mississippi, the state post-conviction process is part of the appeal process in death penalty cases. In Jackson, the Mississippi Supreme Court stated that “in capital cases, state post-conviction efforts, though collateral, have become part of the death penalty appeal process at the state level.” Id. at 191. Stevens contends that this fact distinguishes his case from prior cases which have held that a prisoner is not entitled to the effective assistance of counsel in post-conviction proceedings. Stevens asserts that because he had a right, under state law, to state post-conviction counsel as part of the appeal process, the Due Process Clause guarantees that it cannot be interfered with by the State.

“States have no obligation to provide this [post-conviction] avenue of relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.” Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (citation omitted). Ineffectiveness of post-conviction counsel cannot be the grounds for federal habeas relief. Martinez v. Johnson, 255 F.3d 229, 241 (5th Cir.2001); see also 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”). Infirmities in state habeas proceedings do not constitute grounds for relief in federal court. Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.2001) (holding that ineffective state process and ineffective state habeas counsel did not excuse petitioner from exhausting claims in state court).

The district court's opinion contains a discussion of the “troubled history” of the MOCPCC, including inadequate staffing and a lack of adequate funding. The first MOCPCC director, C. Jackson Williams, submitted an affidavit in which he explained the difficulties that he experienced during his tenure as director. Because he thought that the workload could not be handled effectively, Williams contracted with private attorneys to represent some of the petitioners. However, the account from which those attorneys were to be paid was never funded by the Mississippi Legislature. Furthermore, the Chief Justice of the Mississippi Supreme Court discouraged Williams from hiring attorneys from outside the State, despite the fact that there were few attorneys within the state who were qualified to represent capital petitioners. In addition, the Mississippi Attorney General's Office opposed the appointment of private counsel in some cases, on the grounds that they were “unqualified” to handle death penalty cases. The district court found that “there is no doubt that the Office was operating with a substantial workload and that the State of Mississippi's involvement in removing private counsel from cases added to the work required from the Office.”

On September 28, 2001, shortly after Stevens's conviction was affirmed on direct appeal on September 13, 2001, the Mississippi Supreme Court ordered the MOCPCC to select counsel to represent Stevens in state post-conviction proceedings. On October 22, 2001, MOCPCC Director Williams moved for additional time to locate counsel for Stevens. In the motion, Williams stated that the MOCPCC could not accept any new clients for approximately six weeks and that he could not exercise his statutory authority to locate private counsel to represent Stevens because the Legislature had not appropriated any money for the Special Capital Post-Conviction Counsel Fund. In December 2001, Williams resigned his position as MOCPCC director and moved to withdraw as counsel for Stevens. When Williams left, the MOCPCC had been assigned twenty-seven cases.

Robert Ryan was appointed as director of the MOCPCC in January 2002. On March 13, 2002, Ryan wrote to the Mississippi Supreme Court, stating that the MOCPCC would represent Stevens in post-conviction proceedings. In October 2002, the MOCPCC lost its only experienced investigator. The two MOCPCC staff attorneys had both resigned from their positions by January 2003, and Ryan was the only attorney in the office until mid-February. Ryan filed four petitions, including the one for Stevens, in a one-week period in February 2003. He filed a supplemental petition on May 5, 2003.

Stevens contends that because of the staffing and funding problems at the MOCPCC, and the interference by the Mississippi Supreme Court and the Attorney General's Office, the attorney who filed his state post-conviction petition did not have time to do it right and did not have any discovery or investigation, and thus he had no possibility of obtaining meaningful relief. Stevens insists that he is not asserting that there were infirmities in the state habeas process; instead, he is arguing that there was a complete breakdown in the state process in that the MOCPCC was unable to provide adequate representation because of the overwhelming caseload, inadequate staffing and funding, and interference by the Mississippi Supreme Court and the Attorney General's Office.

The district court found that there was a period during which the MOCPCC was understaffed, underfunded, and overloaded with cases, and that the situation was aggravated by the State's interference in some petitioners' representation. However, the district court found that Stevens's case was not assigned to the MOCPCC until late in that period and, by the time his post-conviction petition was filed, the workload had lessened and new attorneys had been hired. Furthermore, Stevens was permitted to file a supplemental petition.

The district court concluded that, although the history of the MOCPCC presents troubling questions, Stevens's argument suffers from significant weaknesses: First, the Mississippi Supreme Court said that its opinion in Jackson did not establish a right to competent post-conviction counsel. See Wiley v. State, 842 So.2d 1280, 1285 (Miss.2003) ( Jackson v. State did not create a constitutional right to post-conviction counsel or create any liberty interest in having state-compensated post-conviction counsel). Second, the State was not constitutionally obligated even to provide post-conviction review. Finally, it was not clear that Stevens suffered any individual prejudice from the problems in the MOCPCC, because both a petition and a supplemental petition were filed on his behalf.

Reasonable jurists would not find the district court's decision on this issue debatable. Arguments similar to those raised by Stevens have been rejected repeatedly by this court. In Matchett v. Dretke, 380 F.3d 844 (5th Cir.2004), this court denied a COA, noting that this court has, “on at least two occasions, ... rejected contentions like Matchett's that Texas's statutory provision of post-conviction counsel to death-row offenders requires that the post-conviction process must comply with the Due Process Clause.” Id. at 849 (citing Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir.2002); In re Goff, 250 F.3d 273, 275-76 (5th Cir.2001)). In Ogan, this court denied a COA for the petitioner's claim that “the Texas courts' appointment of incompetent counsel was a violation of his statutory right to competent counsel, as well as a violation of his due process rights under the Fourteenth Amendment.” 297 F.3d at 357. Ogan's argument was similar to Stevens's: He asserted that because Texas had chosen to provide post-conviction review and had guaranteed the appointment of counsel, “it must follow the statutory requirements in accordance with due process.” Id.

In Bishop v. Epps, a Mississippi death row inmate argued that due to the actions of the [Mississippi Supreme C]ourt in denying him additional time, any potential procedural defaults that might here be imposed against his claims should be excused due to his inability to raise such claims at the State court level. Petitioner asserts that the heavy workload of the [MOCPCC], combined with the lack of qualifications of post-conviction counsel, denied him any possible redress to his constitutional violations. Bishop v. Epps, No. 1:04CV319-MPM, 2007 WL 2363465, at *6 (N.D.Miss. Aug. 16, 2007) (unpublished). The district court denied habeas relief, and this court denied a COA, characterizing the claim as an ineffective counsel claim. Bishop v. Epps, 265 Fed.Appx. 285, 290 (5th Cir.2008) (unpublished) ( “Because Bishop has no right to counsel in post-conviction proceedings, he can allege no unconstitutional denial of the effective assistance of post-conviction counsel.”).

Other courts have also rejected due process challenges similar to the one asserted by Stevens. See Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir.1996) (“Moran may not avoid our holding that a petitioner is not entitled to effective assistance of counsel during habeas proceedings by alleging a due process, rather than a Sixth Amendment, violation.”); Simpson v. Norris, 490 F.3d 1029, 1033 (8th Cir.2007) (rejecting habeas petitioner's claim that because state statute “required the state to appoint an attorney to represent him in post-conviction proceedings, the state had a duty to provide him with effective assistance of counsel and its failure to do so deprived him of due process”). In Simpson, the Eighth Circuit said that in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), “[t]he Supreme Court has ... left little doubt as to its view that a state's decision to grant a right to counsel in post-conviction proceedings does not give rise to a due process claim if counsel performs deficiently.” 490 F.3d at 1034.

Accordingly, we DENY Stevens's request to expand the COA.

III.

For the foregoing reasons, the district court's denial of habeas relief on Stevens's Batson claim is AFFIRMED, and Stevens's request for an expanded COA is DENIED.

HAYNES, Circuit Judge, concurring in the judgment:

I concur in the denial of the request for an expanded COA. Although I concur in the decision to affirm the district court regarding the strike of juror Olive, I do so only because of the highly deferential review standard required by AEDPA. The state trial court's approach to deciding the Batson challenge leaves much to be desired, and some of the comments by counsel and colloquies in the transcript of the trial are disturbing and inappropriate. Had this been a direct appeal of the state trial court's decision, my decision very likely would have been different. Applying the precedents of the Supreme Court and our court construing AEDPA, however, I am required to concur in the affirmance.

Benny Joe Stevens