was sentenced to death in 1988 in Harrison County for the murder of his girlfriend,
Gloria McKinney, during the
commission of kidnapping on March 4, 1987.
Mississippi Supreme Court
Thorson v. State
Roger Eric THORSON v. STATE of Mississippi.
August 30, 2007
Jim Davis, Gulfport, Daniel S. Brennan, Richard
F. Klawiter, attorneys for appellant.Office of the Attorney
General by Marvin L. White, Jr., Jason L. Davis, attorneys for
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
¶ 1. Roger Eric Thorson was indicted on June 3,
1987, and charged with capital murder of his ex-girlfriend, Gloria
McKinney, during the commission of kidnapping on March 4, 1987.
Thorson entered a plea of not guilty and proceed to trial in the
Second Judicial District of Harrison County on May 16, 1988. Two
days into the trial, a break-in occurred in a motel room occupied
by two of the sequestered jurors. Thorson moved for a mistrial,
which was granted.
¶ 2. Venue for the new trial was transferred to
Walthall County, and trial began on September 18, 1988, in
Tylertown. The jury found Thorson guilty as charged and returned
a sentence of death. On appeal, this Court remanded for a Batson
hearing to determine if the prosecution violated Batson v.
Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 1716-17, 90 L.Ed.2d
69, 80 (1986) in exercising its peremptory strikes. Thorson v.
State, 653 So.2d 876 (Miss.1994). The circuit court found no
Batson violation, and Thorson appealed the circuit court's ruling.
Upon his second appeal, this Court reversed Thorson's
conviction, finding that a juror had been improperly challenged
solely for her religious affiliation, and ordered a new trial.
Thorson v. State, 721 So.2d 590 (Miss.1998).
¶ 3. Thorson's third trial began June 3, 2002,
in the Circuit Court of the Second Judicial District of Harrison
County, where he was again found guilty of capital murder and
sentenced to death by lethal injection. Thorson v. State, 895
So.2d 85, 94 (Miss.2004). Thorson raised thirty-three (33)
assignments of error on direct appeal, which this Court found to
be without merit. We affirmed Thorson's conviction and sentence
on November 4, 2004. Id. We subsequently denied Thorson's motion
for rehearing on February 3, 2005. Id. His petition for writ of
certiorari to the United States Supreme Court was denied on
October 3, 2005. Thorson v. Mississippi, 546 U.S. 831, 126 S.Ct.
53, 163 L.Ed.2d 83 (2005).
¶ 4. Thorson now comes before this Court on his
Petition for Post-Conviction Relief and his supplemental petition.
For the reasons discussed below, we find that this matter should
be remanded to the trial court for the sole purpose of conducting
a hearing pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002); Lynch v. State, 951 So.2d 549
(Miss.2007); and, Chase v. State, 873 So.2d 1013 (Miss.2004).
STATEMENT OF THE FACTS
¶ 5. The following facts are gleaned from this
Court's opinion on Thorson's direct appeal:
On March 4, 1987, Roger Eric Thorson visited
Edgewater Mall in Biloxi in order to talk to his former fiancee,
Gloria McKinney. He was worried that his neighbor and girlfriend
Patricia Cook might have said some things to Gloria, so he wanted
to apologize to her in person. When Thorson arrived at the mall,
he learned from his friend, Reggie Brazeal, that McKinney would
not get off work from Morrison's until 4:00 p.m. However, Thorson
remained at the mall until McKinney left at 4:45 p.m. When
McKinney exited the mall, Thorson approached her car, told her
that he had come to apologize and asked her for a ride to the
Cedar Lake exit. When they arrived at the exit, Thorson asked
McKinney to keep driving towards his house because he still needed
to talk to her. At this time, Thorson pulled a knife on
McKinney. McKinney continued to drive at knife point until
Thorson directed her to a dirt road. Thorson then ordered
McKinney to remove all of her clothes and turn with her back
facing him. He then placed a .22 revolver pistol on the
dashboard which he had recently purchased from his neighbor, Paul
Quinn. After McKinney removed her clothes, Thorson removed a
piece of rope from his jacket pocket and tied her hands behind her
back. He then placed her brassiere in her mouth and tied it
around her neck. Thorson then raped Gloria McKinney. After he
raped her, Thorson took a towel that he had found in McKinney's
car and wiped down everything that he thought he might have
touched because he did not want any of his fingerprints in her
car. Thorson asked McKinney if she would tell anyone what had
just happened, and she shook her head indicating that she would
not. Thorson told her that he did not believe her. He then
took the knife and slit her throat. Thorson got out of her car
and removed a blue jacket which he had given to Gloria, a plastic
power steering fluid bottle and Gloria's wallet. He removed
Gloria's driver's license from the wallet because he wanted a
picture of her. He threw the bottle and wallet into the woods so
it would appear that someone else had hurt Gloria. At this time
Gloria was sitting in the car, bleeding from the wound to her
neck. She was able to get out of her car and work the brassiere
from her mouth. When she screamed for help, Thorson walked back
to the car and shot her in the head with the .22 revolver. He
then ran home and hung Gloria's coat in his closet. Thorson
walked to Patricia Cook's trailer, which was directly behind his,
and cleaned his hands and the knife with bleach to remove any
traces of blood or gunpowder residue. He then went back to his
trailer and wrapped the knife, gun, shells and Gloria's watch in
Gloria's jacket and buried it in a vacant lot near his trailer.
Thorson was arrested for the murder of Gloria
McKinney on March 8, 1987. On June 3, 1987, Thorson was indicted
in the Second Judicial District of Harrison County for the capital
murder and felony kidnapping of Gloria McKinney. Trial commenced
on June 3, 2002.  During the trial the State called several
witnesses to testify during its case-in-chief. Reginald Brazeal
first testified that at the time of Gloria McKinney's death he was
the head chef at the Morrison's located in Edgewater Mall. Brazeal
stated that when he left work on March 4, 1987, at approximately
3:30 or 4:00 p.m., Thorson was waiting in the parking lot.
Thorson asked Brazeal what time McKinney would be getting off of
work, and Brazeal responded that he was not sure. Thorson
explained that there were “some things he wanted to get straight
The State also called Rick Gaston who was
employed by the Harrison County Sheriff's Department. On March
5, 1987, Gaston was a Captain with the Patrol Division and was
Shift Supervisor. Gaston first came in contact with Thorson when
he was investigating McKinney's disappearance. Thorson told
Gaston that he had not seen McKinney for several months.
However, Gaston informed Thorson that he had been seen talking to
her at the mall. Thorson explained that he had been there to see
the Clydesdale horses and had seen her briefly in the parking lot
when she got off of work. Thorson informed [Gaston] that he
would be willing to help with the investigation in any way.
[Gaston] then drove Thorson to the Central Intelligence Division
(CID) where he was introduced to Investigator Jerry Tootle. Once
at the CID, Thorson changed his story and told the investigators
that McKinney had given him a ride from the mall the previous day.
Thorson spent several hours at the CID talking to investigators
on the evening of March 5, 1987, before he was returned home.
The body of Gloria McKinney was subsequently found on March 7,
1987. After the body was discovered, the investigators visited
Thorson's home again. Thorson voluntarily offered to come to the
CID. He was not under arrest at this time.
Robert Burriss, employed by the Biloxi Police
Department, testified that as a crime scene technician, he was
called to the scene where McKinney's body and automobile were
discovered. Burriss identified several pictures taken at the
scene of the crime which portrayed blood found in the victim's
car, the victim with her throat cut and the victim lying in her
car. Burriss also identified photographs depicting the victim's
hands bound and the victim's mouth gagged with her brassiere.
Burriss testified that when he processed the victim's automobile
for fingerprints, he was only able to develop streaks which led
him to believe the car had been wiped clean.
Next, Richard Giraud, employed by the Harrison
County Sheriff's Department, testified that as an investigator at
the time of McKinney's murder he was present during the interview
of Thorson at the CID on the evening of March 5, 1987. Giraud
testified that Thorson continuously changed his story regarding
talking to and seeing McKinney the previous day. During the next
interview on March 7, 1987, Thorson informed the investigators
that he and McKinney had driven past the Cedar Lake exit to a dirt
road and had engaged in sexual intercourse. Thorson stated that
McKinney then dropped him off at home. Thorson remained at CID
until he was arrested at approximately 1:30 a.m. March 8, 1987.
Giraud testified that he was arrested due to inconsistencies in
his statements. On the morning of March 8, 1987, Giraud received
information from Patricia Cook that evidence was buried near
Thorson's residence. Giraud testified that the investigators
found a gun, a blue jacket, a picture from the victim's driver's
license and a knife. After finding these items, Giraud testified
that he returned to CID and Thorson was brought from the County
Jail to Jerry Tootle's office in the CID for further questioning.
Giraud testified that when Thorson was shown the knife, he
stated, “Well, I guess you know the rest of the story.” Thorson
was then mirandized and he made a video taped confession admitting
to the murder of Gloria McKinney.
Dr. Paul McGarry, a forensic pathologist,
testified that he performed the autopsy on Gloria McKinney on
March 8, 1987. In describing the injuries suffered by McKinney,
Dr. McGarry stated that “she had a slash wound across the front of
her neck that opened up her voice box, opened a hole in her
larynx. She had a bullet wound to the head that went in the
right temple, and had sprinkled around it gunpowder on the skin
and hair, indicating it was close range.” Dr. McGarry testified
that the cause of McKinney's death was a “gunshot wound to the
head at close range.” The wound to the victim's neck would not
have been fatal with proper management. A sexual assault kit was
also performed on McKinney due to the extensive injuries to her
Michael Stroud, an employee of the Harrison
County Sheriff's Department, testified that he executed a waiver
to allow the Department to draw a sample of Thorson's blood.
Stroud also testified that a rape kit was performed on the victim.
Christopher Larson, employed by ReliaGene Technologies in New
Orleans, Louisiana, testified that he performed a DNA analysis on
the semen taken from the rape kit and the blood taken from
Thorson. From the analysis, Larson was able to determine that
“the vaginal swab from Gloria McKinney was consistent with the
genetic profile from the blood of Roger Thorson.” At the end of
this testimony, the State rested. Thorson then moved for a
directed verdict, and the trial court denied the motion.
During the defendant's case-in-chief, Patricia
Cook, Thorson's former girlfriend, testified that she gave a
statement to Giraud on March 9, 1987. Cook testified that she
told the investigators that Thorson had buried evidence on some
property near his home. Cook also testified that when Thorson
arrived at her home on the night of March 4, 1987, he washed his
hands with bleach.
Dr. George Tate, a clinical psychologist,
testified that after spending ten and one-half hours with Thorson,
reviewing police records and mental health reports, and conducting
several psychological exams, Thorson was “not so impaired by
mental disease or defect to make him incompetent to give a
Richard Isham testified that he spoke with
Thorson on March 7, 1987, at the Harrison County Jail. During the
conversation, Isham was wearing a wire and tape recorder. Isham
testified that he did not inform Thorson that their conversation
was being recorded. Isham testified that when he asked Thorson
about the crime, Thorson responded that “there is no
circumstantial evidence and he was sticking to his story.”
Thorson also testified during his
case-in-chief. Thorson testified that he did go to Edgewater
Mall to talk to McKinney. He stated that he only had her drive
him to his house in Woolmarket. Thorson testified that during
his interview he was threatened and physically abused. He stated
that he only made the confession because he feared for the lives
of McKinney's two young daughters. The defense rested. The
State finally rested after offering no rebuttal testimony.
On June 7, 2002, the jury returned a verdict of
guilty. A sentencing hearing was held, and, on June 8, 2002, the
jury returned the verdict of death finding three aggravators:
1) That the capital offense was committed while
engaged in the commission of a kidnapping;
2) The offense was heinous, cruel and
3) The offense was committed with the purpose
of covering up and hiding evidence.
Thorson, 895 So.2d at 94-97 (¶¶ 2-13).
¶ 6. In today's appeal, Thorson raises five
main issues concerning mental retardation; ineffective assistance
of counsel; execution by lethal injection rising to the level of
cruel and unusual punishment; the State's failure to produce
exculpatory evidence during discovery; and cumulative error.
I. WHETHER A MENTALLY RETARDED DEFENDANT HAS
BEEN SENTENCED TO DEATH IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND CORRESPONDING
STATE CONSTITUTIONAL PROVISIONS.
¶ 7. Thorson contends that his execution would
be unconstitutional under the Eighth and Fourteenth Amendments of
the United States Constitution, corresponding state constitutional
provisions, and Atkins, because he is mentally retarded. In
Atkins, the United States Supreme Court determined that imposition
of the death penalty on mentally retarded inmates constituted
cruel and unusual punishment in violation of the Eighth Amendment
to the United States Constitution. Atkins, 536 U.S. at 321, 122
S.Ct. 2242. The Atkins majority cited two definitions of “mental
retardation.” The first was from the American Association on
Mental Retardation (AAMR).
“Mental retardation refers to substantial
limitations in present functioning. It is characterized by
significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the
following applicable adaptive skill areas: communication,
self-care, home living, social skills, community use,
self-direction, health and safety, functional academics, leisure,
and work. Mental retardation manifests before age 18.”
Id. at 308, n. 3, 122 S.Ct. 2242 (citing Mental
Retardation: Definition, Classification, and Systems of Supports
5 (9th ed.1992)). The second definition came from the American
“The essential feature of Mental Retardation is
significantly subaverage general intellectual functioning
(Criterion A) that is accompanied by significant limitations in
adaptive functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety (Criterion B).
The onset must occur before age 18 years (Criterion C). Mental
Retardation has many different etiologies and may be seen as a
final common pathway of various pathological processes that affect
the functioning of the central nervous system.”
Id. (citing “American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders” 41 (4th
ed.2000)). The Atkins decision did not define who is or is not
mentally retarded for purposes of eligibility for a death sentence
but instead “leaves to the States the task of developing
appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences.” Id. 536 U.S. at 317, 122 S.Ct.
2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17, 106
S.Ct. 2595, 91 L.Ed.2d 335 (1986)). Atkins was decided on June
20, 2002, twelve (12) days after Thorson was sentenced to death on
June 8, 2002.
¶ 8. The State argues that the this issue is
procedurally barred pursuant to Miss.Code Ann. § 99-39-21(1)
(Rev.2000) because Atkins was decided 434 days prior to the date
Thorson filed his brief on direct appeal. It is the State's
position that Thorson should have argued his claim of mental
retardation on direct appeal. We disagree.
¶ 9. In Chase v. State, 873 So.2d 1013, 1023
(Miss.2004), this Court set forth specific requirements to be
followed by the small number of persons with mental retardation
claims who were convicted before Atkins and Chase were handed
down. This Court decided Chase on May 20, 2004, almost two years
after Thorson was convicted and nine months after he filed his
direct appeal. This Court made clear that as a person convicted
before Atkins was handed down, Chase constitutionally could not be
denied the opportunity to present his mental retardation claim to
the trial court where he had demonstrated that his IQ fell within
the range of possible mental retardation, and he had presented an
affidavit of a mental health care professional that he suffered
from “mild retardation.” Id. Thorson falls into the small group
of persons discussed in Chase.
¶ 10. Further, Thorson could not have argued
Atkins before the trial court. As stated previously, Thorson was
convicted prior to Atkins. This Court repeatedly has stated that
it will not consider assignments of error on appeal that were not
first presented to the trial court. “We have held that error not
raised at trial or in post-trial motions may not be reviewed on
appeal. Foster, 639 So.2d at 1289; Watts v. State, 492 So.2d
1281, 1291 (Miss.1986).” Davis v. State, 660 So.2d 1228, 1246
(Miss.1995). This matter is properly presented to this Court on
Thorson's petition for post-conviction relief because “in
practical reality [it] could not be ․ raised at trial or on direct
appeal.” Miss.Code Ann. § 99-39-3(2) (Rev.2000).
¶ 11. This Court announced the requirements
for obtaining a hearing to determine whether a capital defendant
is mentally retarded as follows:
With the sole exception
discussed below, no defendant may be granted a hearing on the
issue of Eighth Amendment protection from execution, due to
alleged mental retardation unless, prior to the expiration of the
deadline set by the trial court for filing motions, the defendant
shall have filed with the trial court a motion, seeking such
hearing. The defendant must attach to the motion an affidavit
from at least one expert, qualified as described above, who
opines, to a reasonable degree of certainty, that: (1) the
defendant has a combined Intelligence Quotient (“IQ”) of 75 or
below, and; (2) in the opinion of the expert, there is a
reasonable basis to believe that, upon further testing, the
defendant will be found to be mentally retarded, as defined
Upon receiving such motion with attached
affidavit, and any response filed by the State, the trial court
shall provide a reasonable amount of time for testing the
defendant for mental retardation. Thereafter, the trial court
shall set a hearing on the motion, and the matter shall proceed.
Chase, 873 So.2d at 1029. This Court further
․ that no defendant may be adjudged mentally
retarded for purposes of the Eighth Amendment, unless such
defendant produces, at a minimum, an expert who expresses an
opinion, to a reasonable degree of certainty, that:
1. The defendant is mentally retarded, as that
term is defined by the American Association on Mental Retardation
and/or The American Psychiatric Association;
2. The defendant has completed the Minnesota
Multi phasic Personality Inventory-II (MMPI-II) and/or other
similar tests, and the defendant is not malingering.
Such expert must be a licensed psychologist or
psychiatrist, qualified as an expert in the field of assessing
mental retardation, and further qualified as an expert in the
administration and interpretation of tests, and in the evaluation
of persons, for purposes of determining mental retardation.
Upon meeting this initial requirement to go
forward, the defendant may present such other opinions and
evidence as the trial court may allow pursuant to the Mississippi
Rules of Evidence.
Later, in Lynch v. State, 951 So.2d 549
(Miss.2007), this Court held that
․ in Mississippi it is acceptable to utilize
the MMPI-II and/or other similar tests. [Chase ] at 1029. This
Court did not intend by its holding to declare the MMPI-II or any
one test as exclusively sufficient. Having a variety of tests at
their disposal, courts are provided with a safeguard from possible
manipulation of results and diminished accuracy which might result
if courts are limited to one test. The United States Supreme
Court mentioned the Wechsler Adult Intelligence Scales Test. See
Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242. Other tests, as
suggested by mental health experts, include the Structured
Interview of Reported Symptoms (SIRS), the Validity Indicator
Profile (VIP), and the Test of Memory Malingering (TOMM).
Id. at 556 (¶ 23).
The Court's interpretation in this case as to
the proper test to be administered with regard to an Atkins
hearing supercedes any contrary decisions. This Court neither
endorses the MMPI-II as the best test nor declares that it is a
required test, and decisions that state otherwise are expressly
Id. at 557 (¶ 24).
¶ 12. The record in this case reveals that
George T. Tate, Ph.D., a clinical psychologist, testified at
Thorson's trial that he personally evaluated Thorson for roughly
ten and a half hours. Additionally, Dr. Tate administered the
Shipley intelligence test, the Wide Range Achievement Test, the
Minnesota Multiphasic Personality Inventory-Revised, the Taylor
Manifest Anxiety scale, the Beck Depression Inventory, and the
Sentence Completion Test. Further, Dr. Tate reviewed a report on
Thorson by Dr. Gasparrini from 1988. Dr. Tate testified that Dr.
Gasparrini performed the Wechsler Adult Intelligence Scale-Revised
(WAIS-R) on Thorson closer in time to the capital murder and found
Thorson to have an IQ of 77. To check Dr. Gasparrini's results
without repeating the test, Dr. Tate testified that he performed
the Shipley test and determined Thorson to have an IQ of 74. Dr.
Tate testified that Thorson was “borderline retarded.”
¶ 13. At the sentencing phase, Dr. Tate
testified that Thorson was “mentally handicapped, not to the
degree of the mentally retarded, but that the intelligence is not
adequate for many of the demands of life in stress situations.”
Dr. Tate emphasized Thorson's childhood was extremely unpleasant,
that Thorson had a troubled relationship with his father, had
nervous problems very early in school, and lacked self-direction
in that he was easily influenced.
¶ 14. Attached to his petition, Thorson
provided this Court with an affidavit from Dr. Marc Zimmerman, a
licensed psychologist, who states that he has met with Thorson and
performed the following tests: Benton Visual Retention Test, 5th
edition; Short Category Test; Wide Range Achievement Test,
Revision 3; Wisconsin Card Sort Test; Stroop Color and Word
Test; Screening Test for Luria-Nebraska Neuropsychological
Battery; Wechler Adult Intelligence Scale, 3rd edition; Rey 15
Item Test, Test of Memory Malingering; and Luria
Neuropsychological Battery. Dr. Zimmerman states that Thorson
has a full-scale IQ of 70. Dr. Zimmerman is of the “opinion to a
reasonable degree of psychological certainty that Mr. Roger Eric
Thorson meets the criteria established by the American Psychiatric
Association (DSM) and the American Association on Mental
Retardation to be classified as mentally retarded.” He also
states in his affidavit that Thorson's adaptive behavior reveals
deficits in functional academic skills, work, self-direction, and
social/interpersonal skills and that it is documented that the
onset of these deficits occurred before the age of eighteen.
¶ 15. For the foregoing reasons, we find that
Thorson has met the requirements established by this Court in
Chase and it progeny and this matter should be remanded to the
Circuit Court of the Second Judicial District of Harrison County
for a hearing pursuant to Atkins, Lynch and Chase.
II. WHETHER THORSON RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.
¶ 16. Thorson asserts that his trial counsel
was ineffective for failing to develop and present evidence of
mental retardation and other mitigating evidence during
sentencing, for failing to prepare the defense expert, for not
being prepared at trial, and for failing to present evidence
concerning lack of a valid Miranda waiver.
¶ 17. The test for ineffective assistance of
counsel is well-settled. “The benchmark for judging any claim of
ineffectiveness [of counsel] must be whether counsel's conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674. To prevail on this claim, Thorson must demonstrate
that his counsel's performance was deficient and that the
deficiency prejudiced the defense of the case. Id. at 687, 104
S.Ct. 2052. “Unless a defendant makes both showings, it cannot be
said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result
unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984)
(citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
¶ 18. Defense counsel is presumed competent.
Washington v. State, 620 So.2d 966 (Miss.1993). However, even
where professional error is shown, a reviewing court must
determine whether there is “a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different.” Mohr v. State, 584 So.2d 426, 430
(Miss.1991). When reviewing a case involving the death penalty,
the most important inquiry is “whether there is a reasonable
probability that, absent the errors, the sentencer-including an
appellate court, to the extent it independently re-weighs the
evidence-would have concluded that the balance of the aggravating
and mitigating circumstances did not warrant death.” Strickland,
466 U.S. at 695, 104 S.Ct. 2052. If Thorson's post-conviction
application fails on either of the Strickland prongs, Thorson is
not entitled to any relief on this issue. Foster v. State, 687
So.2d 1124, 1129-30 (Miss.1996).
A. Failure to develop and present evidence
of mental retardation, other neurological dysfunction and other
1. Failure to perform an adequate mental
¶ 19. Thorson asserts that he is mentally
retarded and that his counsel was ineffective for failing to
develop evidence of his mental disorders and learning
disabilities. Because we have already determined in Issue I that
this case must be remanded to the trial court to conduct an Atkins
hearing, this sub-issue is moot.
¶ 20. Notwithstanding the mootness of this
sub-issue, we also find this sub-issue to be without merit.
During the guilt phase, Thorson's counsel did call Dr. Tate, who
testified that he personally evaluated Thorson for roughly ten and
one-half hours, performed the numerous tests described in Issue I,
and concluded that Thorson had an IQ of 74. Dr. Tate testified
that Thorson was “borderline retarded.”
2. Other failures to adequately investigate
¶ 21. Again, Thorson argues many inadequacies
of his trial counsel for failing to investigate various matters
that would have aided in showing that he is mentally retarded.
Again, this issue is moot, but also without merit.
¶ 22. As discussed previously, counsel called
Dr. Tate, who told the jury that Thorson was borderline mentally
retarded. Thorson's mother also testified about Thorson's
troubles with learning in school and childhood illnesses.
Inasmuch as Thorson's case was tried prior to the U.S. Supreme
Court's decision in Atkins, we refuse to find the performance of
Thorson's trial counsel deficient for failure to further
investigate the mental retardation issue. We thus find that
Thorson has failed to meet the standard set forth in Strickland on
3. Need for additional mitigation evidence.
¶ 23. Under this sub-issue, Thorson does not
argue that his trial counsel was ineffective, but instead, he
simply asserts that Hurricane Katrina has made it difficult for
post-conviction counsel to investigate, develop and corroborate
significant mental health issues. There is no issue raised here.
However, the sub-issue is moot insofar as it advances Thorson's
claim of mental retardation.
B. Inadequate preparation of experts for
trial and failure to investigate.
1. Failure to properly consult with a DNA
expert, failure to consult a serologist, and failure to adequately
investigate DNA testing.
¶ 24. Thorson asserts that his counsel was
ill-prepared to defend Thorson on DNA issues. Thorson admits
that “over a series of arguments and ardent warnings by the Court,
the defense won and testing of the semen sample [taken from the
body of Gloria McKinney] for DNA went forward.” At the State's
recommendation, ReliaGene in New Orleans, LA, performed the DNA
testing. Thorson asserts that his counsel was not prepared to
cross-examine the State's DNA expert from ReliaGene so as to
attack shortfalls in the testing and suggest that the test raised
the possibility that someone else's DNA could have been present
along with Thorson's in the sample.
¶ 25. According to the affidavit of Thorson's
trial counsel, Ron Acton was retained as an expert to prepare
Thorson's defense for DNA issues. Prior to the prosecution
calling the ReliaGene witness, Thorson's attorney made the
following request of the Court:
MR. SMITH: Okay. Before he puts ReliaGene on,
I need an opportunity to make a quick phone call to my expert,
just ask him two questions that he was checking on for me. I
talked to him about it last night.
Donald Smith further states in his affidavit
that he had never cross-examined a witness about DNA testing prior
to Thorson's trial. Kellie Koenig Lawler states in her affidavit
that she had never dealt with DNA prior to Thorson's trial. As
the State points out, a review of the cross-examination of the
ReliaGene witness by Thorson's trial counsel easily allows one to
draw the conclusion that Dr. Acton assisted counsel in preparation
for cross-examination. Thorson cannot show that his counsel was
¶ 26. Further, even assuming, arguendo, that
his attorneys were deficient, Thorson cannot show that the outcome
of his trial would have been different. The ReliaGene expert
testified that the DNA from sperm retrieved from the victim's body
matched Thorson's, and that the chance of finding another
individual with the same genetic profile was one in ten billion.
Thorson testified that he had a sexual encounter with the victim
on March 4, 1987. He also confessed to killing Gloria McKinney
in his taped confession to the police. This sub-issue has no
2. Failure to investigate the physical
evidence to find inconsistencies with Thorson's confession.
¶ 27. Thorson asserts that once his counsel
knew that the confession was not going to be suppressed, counsel
should have conducted an investigation of the physical evidence to
look for inconsistencies with Thorson's confession. Thorson
first offers the affidavits of two entomologists wherein it is
stated that due to the lack of insect infestation on McKinney's
body when found on March 7, 1987, McKinney's body could not have
been in the wooded area since March 4, when Thorson confessed to
having killed her. They assume that there was no insect
infestation on the body because there was no mention of insect
infestation by the investigating officers or in the coroner's
¶ 28. Thorson also argues that his counsel
should have challenged the time of death. He offers the
affidavit of Dr. Kris Sperry, Chief Medical Examiner for the State
of Georgia, who concludes in his affidavit that he is of the
opinion that McKinney was killed and left in the position in which
she was found in the late afternoon of, or on the night of, March
¶ 29. Thorson further contends that his
counsel was ineffective for not investigating the blood spatter
evidence, and he offers the affidavit of Ronald L. Singer, a crime
lab director from Fort Worth, Texas. Singer states in his
affidavit that “[b]ased on my preliminary evaluation, I believe
there may be some significant discrepancies between the
information provided by Roger Thorson in his confession and the
evidence at the crime scene․” Singer clearly states that his
opinion is preliminary and that he would have to examine all of
the evidence from the scene and elsewhere in this case.
¶ 30. In addition to Thorson's videotaped
confession, the jury was presented with the direct evidence of
Thorson's DNA found on the victim. The jury also heard testimony
from Patricia Cook, Thorson's girlfriend at the time, who
testified that on March 4, 1987, Thorson came home and washed his
hands with bleach. She further testified that Thorson told her
that he had buried the weapons used to murder McKinney in a vacant
lot and that he also admitted to killing McKinney. The weapons
used to murder McKinney were retrieved by law enforcement after
receiving a tip from Patricia Cook on March 9, 1987. The weapons
had been buried in a vacant lot between Thorson's trailer and the
trailer belonging to Patricia Cook. Investigator Tootle testified
that when he showed Thorson the recovered knife used to cut
McKinney's throat, Thorson stated “Well, I guess you know the rest
of the story.”
¶ 31. There is no constitutional right to
errorless counsel. Mohr v. State, 584 So.2d 426, 430 (Miss.1991)
(right to effective counsel does not entitle defendant to have an
attorney who makes no mistakes at trial; defendant only has right
to have competent counsel); Cabello v. State, 524 So.2d 313, 315
(Miss.1988); further, this Court has held that
[t]he duty to investigate and prepare is not
limitless and not every breach means that counsel has failed to
render reasonably effective assistance. “Counsel for a criminal
defendant is not required to pursue every path until it bears
fruit or until all conceivable hope withers.” Lovett v. Florida,
627 F.2d 706, 708 (5th Cir.1980). This issue is without merit.
Brown v. State, 798 So.2d 481, 497 (Miss.2001)
¶ 32. While Thorson faults counsel for not
investigating physical evidence to identify the inconsistencies
with his confession, the record is full of independent evidence
that is consistent with and supports Thorson's confession. Even
if this Court were to determine that Thorson's counsel was
deficient for not pursuing these paths until they bore fruit
(which determination we do not make), Thorson still cannot show
that the outcome of his trial would have been different.
Therefore, this issue does not pass the standard set forth in
Strickland and must fail. Mohr v. State, 584 So.2d 426, 430
(Miss.1991); Neal v. State, 525 So.2d 1279, 1281 (Miss.1987).
III. WHETHER EXECUTION BY LETHAL INJECTION
AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT.
¶ 33. It is Thorson's contention that
execution by lethal injection constitutes cruel and unusual
punishment. This is the first time Thorson has raised this
issue, and it was capable of being raised on direct appeal. The
issue is now procedurally barred from further consideration on
collateral appeal. Miss.Code Ann. § 99-39-21(1) (Rev.2000). In
Jordan v. State, 918 So.2d 636, 661 (Miss.2005), the petitioner
failed to raise lethal injection as an Eighth Amendment claim and
this Court employed the procedural bar.
Jordan failed to make any claim relating to the
method of execution at trial or on direct appeal. Therefore,
this claim is barred for consideration for the first time on
application for leave to seek post-conviction relief. See
Miss.Code Ann. § 99-39-21(1); Bishop v. State, 882 So.2d 135, 149
(Miss.2004); Grayson v. State, 879 So.2d 1008, 1020 (Miss.2004).
¶ 34. Notwithstanding the procedural bar,
this Court, in Jordan, looked to the merits of the claim and found
none based on Jordan's failure to submit any sworn proof as
required by Miss.Code Ann. § 99-39-9(1)(e) (Rev.2000). Id. at
662. Likewise, counsel for Thorson fails to submit any affidavit
which legitimately questions the lethal injection protocol
employed by the Mississippi Department of Corrections. This
issue is without merit.
IV. WHETHER THE STATE FAILED TO PRODUCE
EXCULPATORY AND OTHER FAVORABLE EVIDENCE.
¶ 35. In Carr v. State, 873 So.2d 991, 999
(Miss.2004), we stated:
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme
Court established the principle that “suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” In determining whether a Brady
violation has occurred, and thus a new trial is mandated, this
Court applies the four-part Brady test adopted in King v. State,
656 So.2d 1168, 1174 (Miss.1995), under which the defendant must
a. that the State possessed evidence favorable
to the defendant (including impeachment evidence);
b. that the defendant does not possess the
evidence nor could he obtain it himself with any reasonable
c. that the prosecution suppressed the
favorable evidence; and
d. that had the evidence been disclosed to the
defense, a reasonable probability exists that the outcome of the
proceedings would have been different.
Id. at 1174.
Id. at 999.
¶ 36. Thorson presents this Court with a list
of items which he asserts may not have been provided by the State
to the defense in violation of Brady. Brady, 373 U.S. at 83, 83
S.Ct. 1194. Thorson, however, admits that uncovering Brady
violations has been hampered because all of the files on his case
that were retained by Donald Smith, lead defense counsel, were
destroyed by Hurricane Katrina. Kellie Koenig Lawler, Thorson's
other trial counsel, stated in her affidavit that she provided
Thorson's post-conviction counsel with two boxes of files on
Thorson, but she knows there were more that have either been lost
or destroyed by Hurricane Katrina.
¶ 37. DNA information from Reliagene-Thorson
asserts that the State did not provide important exculpatory data
from ReliaGene. To support this contention, Thorson provided an
affidavit from a Randell T. Libby, Ph.D., who holds a doctoral
degree in molecular genetics. At the request of Thorson's
post-conviction counsel, Dr. Libby was requested to offer an
opinion as to the test results/data provided to him. In his
affidavit, Dr. Libby identifies several forms of data that were
not supplied to him, which he claims may contain exculpatory
¶ 38. The possibility that more data, which
has not been received by Dr. Libby from ReliaGene for
post-conviction purposes, may lead to exculpatory information does
not show that the State, at the time of trial, had evidence in its
possession that was favorable to Thorson and that went undisclosed
to the defense. Thorson has not met the four-part Brady test
adopted in King. King, 656 So.2d at 1174. This issue is without
¶ 39. Rap Sheets and NCIC information on
Patricia Cook-Thorson next asserts that the State has violated
Brady by not providing background information on Patricia Cook, a
person whom the defense believed was involved in the crime. The
record reflects that Thorson prevailed on a pretrial motion
seeking the rap sheets and NCIC information on Cook. At trial,
Thorson's counsel called Cook as a witness and questioned her at
great length. We can reasonably deduce from this occurrence that
Thorson's counsel did receive the information requested by the
motion. The record does not indicate any objection by Thorson
claiming that the information was not received before trial. If
the information was, in fact, not received, the issue is waived
because it was capable of being raised at trial. Miss.Code Ann.
§ 99-39-21(1) (Rev.2000).
¶ 40. Remaining claims of Brady
violations-Thorson's remaining assertions under the claim of Brady
violations include that the State did not provide background on
other witnesses called by the prosecution and the defense.
Thorson does not identify those witnesses. He also asserts that
the State did not disclose information omitted from police
reports, including interviews of other witnesses and knowledge of
the location of physical evidence, such as the wallet that Thorson
claimed to have thrown in the woods. Thorson asserts that the
State did not disclose evidence of lengthy interrogations, which
Thorson claims would have shown his confession to have been
neither voluntary nor accurate. As the State properly points
out, these remaining claims are offered without specificity and
cannot be shown to meet any of the four-part Brady test. Brady,
373 U.S. at 83, 83 S.Ct. 1194.
¶ 41. Ineffective assistance of counsel
claim-Lastly, Thorson pleads ineffective assistance of counsel in
the alternative with respect to any of his Brady violation claims
that we find to be without merit. Thorson does not pursue these
alternatively-pled ineffective assistance of counsel claims with
authority or any argument whatsoever. Therefore, the issues are
deemed abandoned. Drennan v. State, 695 So.2d 581, 585-86
(Miss.1997); Hoops v. State, 681 So.2d 521, 526 (Miss.1996);
Kelly v. State, 553 So.2d 517, 521 (Miss.1989); Smith v. State,
430 So.2d 406, 407 (Miss.1983); Ramseur v. State, 368 So.2d 842,
V. WHETHER THERE IS CUMULATIVE ERROR.
¶ 42. Thorson raised the issue of cumulative
error as to both federal and state law on direct appeal. Thorson,
895 So.2d at 131-32. This court found the issues to be without
merit. The State now contends that the issue is procedurally
barred by the doctrine of res judicata pursuant to Miss.Code Ann.
§ 99-39-21(3) (Rev.2000). Pursuant to Miss.Code Ann.
§ 99-39-3(2) (Rev.2000), a post-conviction relief motion serves
the purpose of providing a limited procedure for review of issues
that, “in practical reality could not be or should not have been
raised at trial or on direct appeal.” It stands to reason that
post-conviction issues, reviewed for the first time, can be
subjected to cumulative-error scrutiny without being barred by the
doctrine of res judicata. Therefore, the State's argument fails.
¶ 43. In his motion for post-conviction
relief, Thorson contends generally that the alleged preceding
errors, taken as a whole, deprived him of a fair trial. The
standard of review for an appeal from a capital murder conviction
and death sentence is that of “heightened scrutiny.” Balfour v.
State, 598 So.2d 731, 739 (Miss.1992) (citing Smith v. State, 499
So.2d 750, 756 (Miss.1986); West v. State, 485 So.2d 681, 685
(Miss.1985)). All doubts are to be resolved in favor of the
accused because “what may be harmless error in a case with less at
stake becomes reversible error when the penalty is death.” Id.
(quoting Irving v. State, 361 So.2d 1360, 1363 (Miss.1978)). See
also Fisher v. State, 481 So.2d 203, 211 (Miss.1985).
¶ 44. When it comes to issues of alleged
cumulative error, the Court previously has taken note of those
capital cases in which the opinions of this Court articulated
differing analyses. For example, in McFee v. State, 511 So.2d
130, 136 (Miss.1987) (rape conviction and life sentence affirmed),
this Court addressed each assignment of error and found none, be
it harmless or otherwise, by the trial court. Based on that
finding, this Court stated:
In sum, McFee contends that the cumulative
effect of the alleged errors was sufficient to prejudice the jury,
essentially allowing the State to convict him not of rape, but of
murder. Yet, as discussed, neither the introduction of the
photographs nor the prosecutor's comments constituted reversible
error. As there was no reversible error in any part, so there is
no reversible error to the whole.
¶ 45. In Jenkins v. State, 607 So.2d 1171,
1183-84 (Miss.1992) (capital murder conviction and death sentence
reversed and remanded), in which this Court found both harmless
error and reversible error by the trial court, this Court stated:
If reversal were not mandated by the State's
discovery violations, we would reverse this matter based upon the
accumulated errors of the prosecution. This Court has often
ruled that errors in the lower court that do not require reversal
standing alone may nonetheless taken cumulatively require
Id. (citing Griffin v. State, 557 So.2d 542,
¶ 46. In Manning v. State, 726 So.2d 1152,
1198 (Miss.1998) (capital murder convictions and death sentence
affirmed), the Court addressed twenty-one assignments of error
with sub-parts, and made numerous findings of no “reversible
error.” We stated:
This Court has held that individual errors, not
reversible in themselves, may combine with other errors to make up
reversible error. Hansen v. State, 592 So.2d 114, 142
(Miss.1991)[n. 5]; Griffin v. State, 557 So.2d 542, 553
(Miss.1990). The question under these and other cases is whether
the cumulative effect of all errors committed during the trial
deprived the defendant of a fundamentally fair and impartial
trial. Where there is “no reversible error in any part, ․ there
is no reversible error to the whole.” McFee v. State, 511 So.2d
130, 136 (Miss.1987).
Manning, 726 So.2d at 1198.
¶ 47. This Court reconciled these different
views in Byrom v. State, 863 So.2d 836 (Miss.2003) and held:
What we wish to clarify here today is that upon
appellate review of cases in which we find harmless error or any
error which is not specifically found to be reversible in and of
itself, we shall have the discretion to determine, on a
case-by-case basis, as to whether such error or errors, although
not reversible when standing alone, may when considered
cumulatively require reversal because of the resulting cumulative
prejudicial effect. That having been said, for the reasons
herein stated, we find that errors as may appear in the record
before us in today's case, are individually harmless beyond a
reasonable doubt, and when taken cumulatively, the effect of all
errors committed during the trial did not deprive Michelle Byrom
of a fundamentally fair and impartial trial. We thus affirm
Byrom's conviction and sentence.
Id. at 846-47.
¶ 48. After a careful review of the record in
the present case, we conclude that the record supports no finding
of error or errors, which when considered cumulatively, had any
prejudicial effect which deprived Thorson of a fundamentally fair
and impartial trial. We thus find this issue to be without
¶ 49. Except for one issue, we find that
Thorson's petition for post-conviction relief is without merit;
however, because Thorson meets the requirements articulated by
this Court in Chase and has not been afforded an Atkins hearing,
this matter is remanded to the Circuit Court of the Second
Judicial District of Harrison County for an evidentiary hearing
pursuant to Atkins, Lynch and Chase.
¶ 50. PETITION FOR POST-CONVICTION RELIEF IS
DENIED IN PART AND GRANTED IN PART. THIS CASE IS REMANDED TO THE
CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY
FOR AN EVIDENTIARY HEARING CONSISTENT WITH ATKINS, CHASE AND
noted in the procedural history of this case, supra, this is the
date of Thorson's third trial.
CARLSON, Justice, for the Court.
SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY,
DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS
IN RESULT ONLY.
Roger Eric Thorson